Opinion
No. 59233-5-I.
January 14, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-09287-4, Douglass A. North, J., entered November 8, 2006.
Affirmed by unpublished opinion per Grosse, J., concurred in by Coleman and Ellington, JJ.
Summary judgment is appropriate where there are no material issues of fact. Here, the evidence Roy Rogers, Inc. provided in discovery clearly demonstrates that it was paid in full for the work performed. Mere allegations that the company suffered a loss, without more, are insufficient to overcome the specific evidence obtained in discovery. The trial court's award of summary judgment is affirmed.
FACTS
Woodman Construction, Inc. (Woodman) subcontracted with Roy Rogers, Inc. to perform certain work relating to the development of the Redmond Ridge Shopping Center. Roy Rogers had previously submitted a bid for a lump sum payment for $1,366,043. Roy Rogers also signed a subcontract provided by Woodman. As work progressed, Roy Rogers submitted monthly invoices for its work. Along with each request for payment, Roy Rogers executed a "Subcontractor/Supplier Unconditional Waiver and Release" (Release). Roy Rogers received a total of $1,392,432.29 for work performed on this project.
On January 10, 2005, Roy Rogers abandoned its work under the subcontract which it characterized as being 93 to 94 percent complete. At that time, Roy Rogers estimated that approximately $75,550 worth of work remained. Additionally, Roy Rogers left outstanding monies owed to subcontractors and suppliers in the amount of $44,152.50. Woodman transmitted a notice of default and eventually a notice of termination of the subcontract effective February 4, 2005. On February 15, Roy Rogers filed a lien in the amount of $207,362. On April 11, 2005, Roy Rogers filed three additional liens in the amount of $69,254 each.
Woodman brought suit against Roy Rogers to release the liens and for breach of contract for failing to complete the scope of work as defined under the subcontract, failing to pay its subcontractors and suppliers, diverting funds from the project, over-billing for work performed, and performing materially defective work. Woodman also brought suit against individual members and spouses of the corporation for fraudulent conversion, breach of trust, intentional misrepresentation, and wrongful lien.
Roy Rogers counterclaimed for monies owed for extra work it performed.
A total of eight summary judgment orders were issued in this case disposing of three different summary judgment motions. The first motion for summary judgment was made by Woodman to release the liens held on the property. The court's final revised, clarified order held the three liens in the amount of $69,254 invalid. The court also reduced the first lien to $81,071.73. Roy Rogers does not appeal that summary judgment order. It does, however, appeal the summary judgment order granting Woodman's motion to release the remaining lien on the property and dismissing Roy Rogers' counterclaims for payment for extra work.
Woodman cross-appeals the award of attorney fees to the individual members of Roy Rogers. Woodman does not appeal the order dismissing its claims against the individual members. Woodman's remaining claims against Roy Rogers were voluntarily dismissed by a CR 41 order.
ANALYSIS
Mere assertions that material issues of fact exist are inadequate to overcome a motion for summary judgment. It is insufficient for the nonmoving party to rely on speculation, argumentative assertions, and claims in an affidavit which presents a bare assertion of fact to prevent summary judgment. Such an assertion must be supported by evidence. Conclusory statements and argumentative assertions raised in an affidavit or in a brief are insufficient to raise an issue of fact.
Meyer v. University of Washington, 105 Wn.2d 847, 852, 719 P.2d 98 (1986).
Grimwood v. Univeristy of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988).
In its summary judgment order the trial court found:
Each of the two legal positions on which the summary judgment motion of the plaintiff is based — the written lien waiver dated December 3, 2004 and the defendant's job cost accounting as represented in plaintiff's motion — is sufficient by itself to
Roy Rogers primarily argues that the subcontract, even though signed, is not applicable, and that in its usual course of dealing with Woodman, the parties would sit down at the end of the project and ensure that Roy Rogers made a 12 percent profit on its total job costs. Accepting that assumption for the purpose of summary judgment, Woodman demonstrated that there were no outstanding monies owed to Roy Rogers.
The job costs incurred by Roy Rogers were $1,202,881.70. This amount is validated by Roger Farrens of Roy Rogers in his declaration in which he stated that "[t]he job cost report that we produced is all that we have." This figure was subsequently authenticated in a Roy Rogers' compact disc (CD) of its costs associated with the project. Roy Rogers now claims that those numbers are incomplete without providing any data to contradict those numbers.
Roy Rogers claims the trial court inappropriately admitted Jeffrey Mulvaney's declaration interpreting the costs analysis contained in the QuickBooks CD provided by Roy Rogers. Mulvaney is the General Manger for Woodman and was responsible for monitoring the costs associated with this project. Roy Rogers makes this challenge based upon CR 56(e) which requires supporting affidavits be based on personal knowledge and set forth facts that would be admissible as evidence. But CR 56(e) allows an attorney to base his or her affidavit on documents properly before the court. As stated in International Ultimate, Inc. v. St. Paul Fire Marine Ins. Co.:
Int'l Ultimate, Inc. v. St. Paul Fire Marine Ins. Co., 122 Wn. App. 736, 87 P.3d 774 (2004); Mithoug v. Apollo Radio, 128 Wn.2d 460, 463, 909 P.2d 291 (1996).
Underlying CR 56(e) is the requirement that documents the parties submit must be authenticated to be admissible. Because the proponent seeking to admit a document must make only a prima facie showing of authenticity, the rule's requirement of authentication or identification is met if the proponent shows proof sufficient for a reasonable fact-finder to find in favor of authenticity. The rule does not limit the type of evidence allowed to authenticate a document; it merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be.
Here, the document is a CD which was submitted by Roy Rogers during discovery. Roy Rogers does not claim that the document is not authentic; rather, that Mulvaney's comments on it are inappropriate because he did not compile the CD himself. Roy Rogers could have submitted figures to contraindicate those contained in the CD. It failed to do so. A trial court's decision to admit or exclude evidence lies within its sound discretion and will not be overturned absent a manifest abuse of its discretion. Here, there is no abuse of discretion.
State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997).
Woodman agreed to assume, for purposes of summary judgment, that Roy Rogers, the nonmoving party, correctly characterized its subcontract as a lump sum contract that entitled it to a 12 percent profit after costs. Woodman then demonstrates that it has already paid $1,392,432.29 for the work performed by Roy Rogers. Additionally, subcontractors and suppliers of Roy Rogers had outstanding bills in the amount of $44,152.50. Roy Rogers estimated that it completed work valued at $1,316,622.52 and contends that it is entitled to an additional $80,591.18 for extra work performed.
Using the numbers claimed by Roy Rogers, Woodman set forth the following figures in support of its motion to dismiss:
Completed Value of RR work 1,316,622.52 Extra Work Invoices not submitted 80,591.18 10 change order requests submitted 10,563.00 Credit for Work Remaining to be done 75,550.00 Total RR entitled to $1,483,326.70 Woodman next looked at how much it had already paid Roy Rogers and how much it would still be responsible to pay. These figures do not include the estimates for alleged defective work. Nor do they include the actual monies that Woodman had to pay the company who completed the project in lieu of Roy Rogers. Adjusting for those impacts would result in a substantially larger estimate. Woodman Paid to Roy Rogers 1,392,432.09 Amt Owed to RR Supplies/Subcontractors 44,152.50 Cost to complete RR work 75, 550.00 TOTAL PAID $1,512,134.59 Thus when Woodman used Roy Rogers own figures, it came out with an overpayment of $28,808.89. To dispute this, Roy Rogers refers to the declaration of its bookkeeper, Caprice King, who states that the project showed a financial loss. The declaration also states that a budget report, which was attached to her declaration, was incomplete. That budget report was dated December 12, 2004, and Woodman does not dispute that it was incomplete at that time. The budget costs demonstrated Roy Rogers' costs to be $1,167,584.99 whereas the final job costs report includes numbers through January 27, 2005, and shows costs to be $1,202,881.70. King's conclusory statements are insufficient to present a material fact that would warrant a trial. Roy Rogers also argues that the there is no evidence that the labor costs were included in the CD because Woodman's reviewer would not have that personal knowledge. But, Farrens stated in discovery that the job cost report documentation which Roy Rogers was providing should include the labor burden. Because there are no genuine issues of material fact, as a matter of law, Woodman was entitled to summary judgment. After a moving party has submitted adequate affidavits, the nonmoving party must set forth specific facts rebutting the moving party's contentions setting out the existence of material fact. "The nonmoving party may not rely on speculation or argumentative assertions that unresolved factual issues remain."Cross-Appeal
In addition to its claims against the corporation, Woodman asserted that Roger Farrens, Roy Lawson, and Tauna Lawson (individuals) were individually responsible for over $385,000 in damages for fraudulent conversion, breach of trust, intentional misrepresentation, and wrongful lien. On September 30, 2005, the trial court granted Roy Rogers' partial motion for summary judgment dismissing the claims against the individuals. Woodman does not contest the dismissal, only the award of attorney fees granted by the trial court's order dated November 27, 2006. The trial court found the individuals to be the prevailing parties and as such entitled to attorney fees.
Woodman argues that the subcontract, although providing for attorney fees, is applicable only in indemnity situations. However, Woodman brought the action against these individuals for violating the "trust fund" provisions of its subcontract with Roy Rogers. Subsection 4 of the subcontract provides:
The SUBCONTRACTOR acknowledges that all payments accepted by him or which are otherwise due under this SUBCONTRACT shall constitute a trust fund in favor of the laborers, materialmen, governmental authorities, and all others who are legally entitled to claim a lien on the Premises covered by this SUBCONTRACT or otherwise file a claim against any retained
That same section providing for attorney fees states:
[T]he SUBCONTRACTOR shall refund to WOODMAN all monies that WOODMAN and/or the OWNER shall pay in satisfying, discharging or defending against any such claim, obligation or lien or an action brought or judgment recovered thereon and all costs and expenses, including legal fees and disbursements, incurred in
Section 14 of the subcontract provides:
The SUBCONTRACTOR agrees to indemnity, protect and save harmless WOODMAN and the OWNER from and against any and all such liens and claims and actions brought or judgment rendered thereon, and from and against any and all loss, damages, liability, costs and expenses, including legal fees and disbursements, which WOODMAN and/or the OWNER may sustain or incur in connection
The third attorney provision in the subcontract is found in its addendum and provides:
Subcontractor agrees to defend, indemnify and hold Woodman . . . harmless from any and all claims, demands, losses and liabilities . . . arising out of, resulting from or connected with work performed or to
. . . .
Subcontractor's duty to defend, indemnity, and hold Woodman . . . harmless shall include, as to all claims, demands, losses, and liabilities to which it applies, Woodman's . . . reasonable attorneys' fees.
RCW 4.84.330 applies and specifies:
In any action on a contract or lease . . . where such contract or lease specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or lease or not, shall be entitled to reasonable attorney's fees in addition to costs and
Washington law mandates bilateral application of attorney fees provisions to prevailing parties. The basis of the suit was the subcontract. Woodman's theory of recovery against the individuals was that their alleged fraudulent actions removed them from the umbrella of corporate protection, exposing them to individual liability.
Marine Enter. Inc. v. Security Pac. Trading Co., 50 Wn. App. 768, 750 P.2d 1290 (1988).
Woodman relies upon three cases to support its position that an award of attorney fees is not warranted under the subcontract. Each of those cases is distinguishable from the case at hand.
In Stevens v. Security Pac. Mortgage Corp., 53 Wn. App. 507, 768 P.2d 1007 (1989), the lender sold a negligently prepared mortgage loan to an institutional investor. The borrower defaulted. The lender sought to recover attorney fees against the borrower under a contractual provision providing for attorney fees in the deed of trust. That paragraph specifically provided for attorneys fees in the event of acceleration. Security Pacific was not seeking to accelerate the note since it had already sold the note to another party and thus the court found the provision inapplicable. Here, the attorney provisions are not so narrow.
Woodman also relies on a New York case, Hooper Assocs. Ltd. v. AGS Computers, Inc. This case is also distinguishable from the case at bar. There, the parties entered into a written contract in which the defendant agreed to design, install and supply a computer for the plaintiff. Three years later, the plaintiff sued for breach of contract and a jury found for the plaintiff. The jury awarded the plaintiff $1 plus costs but assigned no damages. The Hooper court held that the potential existed for third party actions to seek lost profits from the plaintiff as a result of a computer malfunction and that it was these actions that the indemnification clause covered, not the issue before the court.
74 N.Y.2d 487, 548 N.E.2d 903, 549 N.Y.S.2d 365 (1989).
Here, the attorney fee provisions are not so narrow that they would limit the recovery of attorney fees. A contract should be construed as a whole, and if possible, in a way that gives effect to all of its provisions. Had Woodman been successful in its claim against the individual members of the corporation, those individuals would have been required to pay Woodman's fees for the costs it expended to defeat the liens imposed by Roy Rogers. Where there is an action on a contract, a party who successfully defends, is entitled to attorney fees whether or not they are specified in the contract. We conclude that the trial court properly awarded attorney fees and costs to the individual members of Roy Rogers as the prevailing parties below and also award attorney fees and costs on the cross-appeal in accordance with RAP 18.1.
Klaas v. Haueter, 49 Wn. App. 697, 708, 745 P.2d 870 (1987) (citing Meenach v. Triple "E" Meats, Inc., 39 Wn. App. 635, 640, 694 P.2d 1125 (1985)).
The trial court is affirmed.
The second case Woodman relies on is Seaborn Pile Driving Co. v. Glew, 132 Wn. App. 261, 267-68, 131 P.3d 910 (2006). Seaborn dealt with a CR 68 offer of judgment to dismiss counterclaims. The court found that the attorney fees were not part of the CR 68 judgment and, therefore, the award of attorney fees was appropriate under the contract. CR 68 judgment would include costs and attorney fees that were only available as costs. However, the court noted that there were two provisions for attorney fees in the contract and that the second one clearly defined attorney fees as separate from costs. On that basis, the court held that the offer of judgment did not include attorney fees. Woodman attempts to interpret the court's ruling there as a refusal to expand the collection provision to cover attorney fees for a non-collection breach of contract. In fact, the court's ruling was not that they did not exist but rather that those attorney fees were covered under the CR 68 judgment.