IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AL and PAULETTE JANSEN, No. 83994-2-I
Appellants, DIVISION ONE v.
PEOPLE’S BANK, a Washington Bank UNPUBLISHED OPINION Corporation; and CRAIG CAMMOCK, an individual,
Respondents.
SMITH, C.J. — Al and Paulette Jansen obtained financing from Peoples
Bank to build a home. As a condition of the loan agreement, the Jansens
needed to obtain the Bank’s approval before making any material or substantial
changes to the construction plans, such as changing contractors. After the
Jansens terminated their contractor without notice to the Bank, the Bank sent the
Jansens a letter declaring them to be in default. In response, the Jansens sued
the Bank, alleging breach of contract, breach of the duty of good faith and fair
dealing, and violations of the Consumer Protection Act, chapter 19.86 RCW.
They also sued the Bank’s lawyer for tortious interference with the contract. The
trial court dismissed all the Jansens’ claims in consecutive summary judgment
motions. The Jansens appeal, asserting that the trial court erred in concluding
that the Bank did not breach the contract and that no issues of material fact
existed. We disagree and affirm. No. 83994-2-I/2
FACTS
In October 2019, Al and Paulette Jansen obtained a $935,000 loan from
Peoples Bank to build a home in Bow, Washington. The parties executed a
Construction Loan Agreement and an Adjustable Rate Note. The latter
contained an addendum allowing the Jansens the option of converting their
construction loan into a permanent loan. Several provisions of the loan
agreement are relevant to this appeal.
Section 3 is entitled “The Work” and provides general guidelines for the
construction. It provides that any changes to the work must be in a written
agreement, signed by the Jansens and their contractor, and approved by the
Bank.
Section 4 concerns the loan and addresses disbursements, use of funds,
and the construction loan account. It makes clear that the Bank has no
obligation to disburse any loan proceeds during any period of default. It also
provides that the Bank may disburse funds in a matter and at a rate that the Bank
deems consistent with construction progress. Lastly, section 4 provides that the
borrower, in conjunction with the contractor, is responsible for providing invoices
and lien waivers to the Bank—the Bank has no affirmative duty to verify any of
that information.
Section 6 covers events of default and the Bank’s available remedies. It
defines what constitutes a default and authorizes the Bank to declare a default
and to cancel permanent financing in the case of a default.
2 No. 83994-2-I/3
Issues began shortly after construction started. The Jansens, unhappy
with the work being done by their contractor, asked their son Grant, himself a
construction professional, to investigate the contractor’s performance. Grant
reported to his parents that the Bank “had administered payments to the
contractor in numerous improper ways” and that both the Bank and contractor
had breached their agreements with the Jansens.
In March 2020, the Jansens parted ways with their contractor and hired
Grant to finish the construction. In early April, Grant sent an e-mail to the Bank
explaining the new arrangement. Grant told the Bank: “As you know the contract
with [the contractor] is terminated. We are completing the project ourselves
personally so there is no new contract to give you.” Grant also told the Bank that
it was no longer authorized to make further payments to the contractor and that
the Jansens would “reconcile any final payment to or refund from [the contractor]
on [their] own.”
A few days later, the Bank sent the Jansens a letter acknowledging receipt
of Grant’s e-mail and alerting them that termination of the contractor constituted
default because it was “a substantial and material change to conditions of the
loan.” The Bank advised the Jansens to “promptly and adequately address this
substantial change of circumstance in compliance with the provisions of the Loan
Documents” and execute a termination document. The Jansens did not do so.
Instead, in June 2020, the Jansens sued the Bank and its lawyer, Craig
Cammock. Against the Bank, the Jansens alleged breach of contract, breach of
the duty of good faith and fair dealing, and a Consumer Protection Act violation.
3 No. 83994-2-I/4
Against Cammock, the Jansens alleged tortious interference with a contract. The
Bank promptly moved to dismiss under CR 12(b)(6), but the court denied its
motion. However, the court noted that it had “significant question as to some of
the breaches alleged in the Complaint, particularly those subsequent to the
termination of the contractor” and “invite[d] these issues to be brought back
before the [sic] it on a motion for summary judgement [sic].” Cammock then
individually moved for summary judgment on the tortious interference claim and
the court granted his motion and dismissed the claim.
Once the parties completed initial discovery, the Bank moved for summary
judgment on all remaining claims. The court granted the Bank’s motion. The
Jansens appealed.
Shortly after the Jansens filed their notice of appeal, the Bank petitioned
the trial court for attorney fees and costs and Cammock moved for sanctions
under CR 11. Following oral argument, the court denied Cammock’s motion for
sanctions, but granted the Bank’s petition for fees and awarded it $92,142.50.
ANALYSIS
We are presented with three issues on appeal. First, whether the court
erred in granting summary judgment for the Bank on the Jansens’ seven breach
of contract claims. We conclude that it did not. On each of the seven breach
claims, the Jansens fail to demonstrate either the existence or breach of a
contractual duty. Second, whether the court erred in granting summary judgment
for the Bank on the Jansens’ breach of duty of good faith and fair dealing claim.
Because the duty of good faith and fair dealing must be connected to a valid
4 No. 83994-2-I/5
breach of contract claim—which the Jansens do not have—we affirm this
dismissal. Third, whether the court erred in granting summary judgment for the
Bank on the Jansens’ Consumer Protection Act (CPA) claim. We affirm the
court’s dismissal of the CPA claim because the Jansens do not identify any unfair
or deceptive practice by the Bank.
Finally, both parties request fees on appeal. Because the Jansens do not
provide a legal basis for fees, we deny their request. And because the Bank
does provide a legal and contractual basis for fees, we award them fees.
Standard of Review
We review de novo an order granting summary judgment and engage in
the same inquiry as the trial court. Assoc. General Contractors of Wash. v.
State, 200 Wn.2d 396, 403, 518 P.3d 639 (2022). “Summary judgment is
appropriate when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.” Lakehaven Water & Sewer Dist.
v. City of Federal Way, 195 Wn.2d 742, 752, 466 P.3d 213 (2020) (citing
CR 56(c)). We consider the evidence and reasonable inferences from it in the
light most favorable to the nonmoving party. Kim v. Lakeside Adult Family
Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016). If reasonable minds could
differ on facts controlling the outcome of the litigation, then there is a genuine
issue of material fact and summary judgment is inappropriate. Ranger Ins. Co. v.
Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).
5 No. 83994-2-I/6
Breach of Contract Claims
The Jansens assert that the Bank breached the contract in seven different
ways. The Bank counters that it was contractually permitted to take the actions it
did. We agree with the Bank.
To prevail on a breach of contract claim, a plaintiff must prove that a valid
contract exists between the parties, that the contract imposes a duty, that the
defendant breached that duty, and that the breach proximately caused damage
to the plaintiff. P.E.L. v. Premera Blue Cross, 24 Wn. App. 487, 496, 520 P.3d
486 (2022). Whether a party had a contractual duty to take an action at a
particular time is a question of law. Badgett v. Sec. State Bank, 116 Wn.2d 563,
568, 807 P.2d 356 (1991). Whether a party breached a contractual duty is a
question of fact. Frank Coluccio Constr. Co. v. King County, 136 Wn. App. 751,
762, 150 P.3d 1147 (2007).
When interpreting a contract, “we attempt to determine the parties’ intent
by focusing on the objective manifestations of the agreement, rather than on the
unexpressed subjective intent of the parties.” Hearst Comm’ns, Inc. v. Seattle
Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). Words in a contract are
given their ordinary, usual, and popular meaning unless a contrary intent is
shown. Condon v. Condon, 177 Wn.2d 150, 163, 298 P.3d 86 (2013). “Courts
will not revise a clear and unambiguous agreement or contract for parties or
impose obligations that the parties did not assume for themselves.” Condon, 177
Wn.2d at 163.
6 No. 83994-2-I/7
1. Breach 1: Section 4(f)(iv)
The Jansens first assert that “[t]he Bank had a duty to verify that invoices
were properly submitted for work performed before issuing disbursements” and
that they “were entitled to rely on [section 4(f)(iv)] to ensure that the Bank was
verifying that work was actually being performed prior to disbursement of the loan
proceeds.” The Jansens also contend that section 7(m) is ambiguous and may
give rise to a broader duty of the Bank to review draw requests. And as yet
another alternative argument, the Jansens contend that the Bank failed to
provide the requisite notice before waiving its obligations under this section. But
neither section 4(f)(iv) nor section 7(m) creates any such duty or obligation on the
part of the Bank.
Section 4(f)(iv) provides, in relevant part: Contractor will deliver to Lender (i) a Request for Draw/Advance, properly completed, and acknowledged by you and Contractor, (ii) the invoices for the Work . . . and (iv) all other required information described in the Request for Draw/Advance. Lender may rely on your statements and Contractor’s statements in the Request for Draw/Advance and on the invoices and lien waivers submitted by Contractor. Lender has no obligation to verify any of that information.
Section 4(f)(iv) specifically states that the Bank “may rely on . . . the
invoices and lien waivers submitted by Contractor” but that the Bank “has no
obligation to verify any of that information” before disbursing funds. (Emphasis
added.) The Jansens’ argument that this section creates a duty on the part of
the bank is undermined by the plain language of the contract. Nothing in
section 4(f) affirmatively requires the Bank to refuse to make advances if the
7 No. 83994-2-I/8
conditions were not satisfied. Rather, a plain reading of the section indicates that
the contractor has a duty to provide invoices to the Bank.
The Jansens disagree, pointing to another section of the contract,
section 7(m), entitled “No Third Party Beneficiary,” which states: The Loan Agreement is for the sole benefit of Lender and you, and is not for the benefit of anyone else. All conditions to Lender’s obligation to make any Advance [sic] are solely for Lender’s benefit. No other person or entity will have standing to require satisfaction of those conditions or be deemed to be the beneficiary of those conditions.
The Jansens assert that section 7(m) is ambiguous and should be construed
against the Bank. They claim that the contract’s conditions should not benefit
only the Bank. But they do not elaborate on how section 7(m) creates a duty
enforceable against the Bank. Section 7(m) by plain, unambiguous language
merely disclaims the contracts creation of rights in a third-party beneficiary. Their
argument is unavailing; with or without consideration of section 7(m), the plain
language of the contract does not create a duty for the Bank to verify invoices
under the contract.
Finally, without an underlying duty, there is no obligation for the Bank to
waive. We therefore need not address the Jansens’ argument that the Bank
failed to properly give notice that it was waiving an obligation to independently
verify draw/advance request information. This claim for breach fails as a result.
2. Breach 2: Section 3(c)
The Jansens argue that the Bank violated section 3(c) when it issued
payments to the contractor even though the contractor’s work deviated from the
8 No. 83994-2-I/9
plans and despite no written change orders being submitted as required by
section 3(c). Because the Bank had no independent obligation to ensure the
contractor was abiding by the plans, we reject this argument.
Section 3(c) requires any change orders to be in writing. It states: “Any
change in the Contract Price, the Work or the Work and Payment Schedule must
be in a written agreement, signed by you and the Contractor, and approved by
Lender.” The Jansens point to this language in an attempt to create an obligation
on the part of the Bank to independently verify that the work was proceeding as
planned.
But as another subpart of the same section, 3(h), makes clear the Bank
had no such obligation. It provides: “You understand and agree that you have
full and sole responsibility to make sure that the Work is fully completed and
complies with the Plans and Specifications.” Section 3(h) also provides that
“[n]othing Lender does (including inspecting the Work or making an advance) will
be a representation or warranty by Lender that the Work complies with . . . this
Loan Agreement.” Section 3 therefore placed the onus entirely on the Jansens
to ensure change orders were properly submitted and to certify that all work
complied with the plans.
Because the Bank did not have a duty to ensure the contractor performed
in accordance with the plans, this breach of contract claim fails.
9 No. 83994-2-I/10
3. Breach 3: Section 4(e)
The Jansens contend that the Bank “made disbursements for unfinished
or defective work that were not based on progress” as required by section 4(e).
We disagree.
Section 4(e) gives the Bank wide latitude over when and how to make
disbursements. It provides that “Lender may disburse funds from the
Construction Loan Account in such manner and at such rate of completion as
Lender in its sole discretion deems consistent with construction progress” and
that “[a]ll disbursements made by Lender for the Work will be based on progress
only.”
The Jansens focus their argument on the requirement that disbursements
be based on progress. But doing so ignores the first half of the section: the
Bank—not the Jansens—determines what constitutes construction progress. In
signing the loan agreement, the Jansens agreed to accept the Bank’s
determination of progress. The contract language is clear and the Jansens
cannot now argue for new terms. This breach of contract claim fails.
4. Breach 4: Adjustable Rate Note
The Jansens contend that the Bank breached the terms of the Adjustable
Rate Note by refusing to convert the loan into a permanent loan. We disagree.
The undisputed facts demonstrate that the Jansens failed to fulfil their contractual
10 No. 83994-2-I/11
obligations, constituting a default, and as a result, the Bank was no longer
required to convert the loan.
Absent a default, the Bank does indeed have a contractual duty to convert
the loan into a permanent loan.1 However, in the event that the Jansens
defaulted, section 6 allows the Bank to “declare the Loan Agreement, the Note,
the Security Instrument, or all of them, in default and exercise any remedies
provided under any of them.” The Bank may also, “without liability, cancel any
commitment for permanent financing relating to the Property.” Failure to fulfill
any obligation in the loan agreement constitutes an event of default.
The relevant contractual obligations the Jansens breached are located in
sections 1(e), 3(a), 4(c), and 7(c). Section 1(e) defines the contractor as “the
person or entity that will perform the Work” and specifies that “the name of the
Contractor is set forth on the COVER PAGE to [the] Loan Agreement.” Moceri
Construction, Inc. is listed as the contractor on the cover page. Section 3(a)
requires the Jansens “have no other agreements for the Work” other than the
originally agreed upon contractor. Section 4(c) instructs that “[u]nless Lender
agrees in writing first, you [the Jansens] may not change the Plans or
Construction Contract.” Section 7(c), entitled “Cooperation,” requires the
Jansens to, “at [their] own cost and expense, sign any other instruments or
documents, and supply any information and data that Lender considers
necessary to accomplish the purposes of [the] Loan Agreement.” Section 7(c)
1 This requirement is included in the Construction Addendum, which is not
before this court. However, neither party disputes that the loan was to be converted.
11 No. 83994-2-I/12
also requires the Jansens to “willingly execute an appropriate modification to
[the] Loan Agreement” “[i]f, in Lender’s opinion, a material modification of the
terms of th[e] Loan Agreement is required, or occurs.”
Here, contrary to the Jansens’ contentions, the underlying facts are
undisputed and the trial court properly decided on summary judgment that the
Jansens had defaulted. The Jansens do not dispute that they parted ways with
their original contractor and did so without the Bank’s approval. This was a
violation of their agreement to not make any changes to the plans or construction
contract without first obtaining the Bank’s approval. They also do not dispute that
on April 6, 2020, Grant sent the Bank an e-mail informing its representatives:
“We are completing the project ourselves personally so there is no new contract
to give you.” This was a violation of their agreement to “have no other
agreements for the Work” and their agreement to “sign any other instruments or
documents . . . that Lender consider[ed] necessary to accomplish” construction.
Though the Jansens claim they “provided the Bank with all requested
documents, including a new budget, schedule, and insurance,” this assertion is
unsupported by the record and does not create an issue of material fact.2
2 To support this claim, the Jansens cite generally to their opposition to
Cammock’s motion for summary judgment. But in that opposition, they do not argue that they provided all necessary documents. Instead, they wholly rely on a letter from Grant to the Bank in which they say proves they “were not in default because [they] made all payments, plan[ned] to finish the work on time, [had] not failed to comply with any agreement under the loan agreement and made no false statements.” The letter itself makes no mention of documents provided to the Bank.
12 No. 83994-2-I/13
Because the undisputed facts demonstrate the Jansens defaulted, the
Bank was allowed to “exercise any remedies” and “without liability, cancel any
commitment for permanent financing relating to the Property.” This claim for
breach fails.3
5. Breach 5: Change of Loan Terms
The Jansens assert that the Bank attempted to coerce them into signing a
Change in Terms Agreement by overcharging interest until they signed the new
agreement. The Bank does not address this argument in its response. However,
because the Jansens do not provide adequate support from the record, we
conclude that this breach claim fails as well.
To defeat summary judgment, the nonmoving party must set forth specific
facts demonstrating a genuine issue of material fact. Newton Ins. Agency &
Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 157, 52 P.3d 30
(2002). “Mere allegations or conclusory statements of fact unsupported by
evidence are not sufficient to establish a genuine issue of material fact.” Egan v.
City of Seattle, 14 Wn. App. 2d 594, 608, 471 P.3d 899 (2020). If the nonmoving
party “fails to make a showing sufficient to establish the existence of an element
essential to [their] case,” then summary judgment is warranted. Atherton Condo.
Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516,
799 P.2d 250 (1990).
3 We note, too, that the Bank did eventually convert the loan into a
permanent loan, despite the Jansens’ default.
13 No. 83994-2-I/14
Questions of fact may be determined as a matter of law at summary
judgment “ ‘when reasonable minds could reach but one conclusion.’ ” Owen v.
Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005)
(quoting Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985)).
The Jansens argue that the Bank started assessing interest as if $935,000
had been advanced when in fact only $629,000 had been paid out. Albeit a bit
unclear, they seem to argue that they were only responsible for any funds
disbursed before the Bank’s alleged breaches terminated their contractual
obligations—i.e., $629,000. They further claim that Grant discovered this
overcharge and asked that it be corrected, but that the Bank refused. They also
maintain that in their next loan statement, the Bank “silently changed the
allocation of payments in an apparent attempt to cover up this mistake, by
reducing the January interest charges and increasing the Jansens’ payment on
the principal.” But none of these assertions is accompanied by supporting record
citations. And the Jansens fail to produce any documentation that the Bank
agreed to only charge interest on the amount of the loan that had been paid up to
that point or identify which contract term the Bank breached through this alleged
action.
The Jansens advanced the same argument before the trial court, also
without supporting documentation. At summary judgment, they claimed the Bank
had demanded “$3,116.67 in interest charges for the month of January 2021—
even though it had only advanced approximately $629,000 (and therefore less
than $3,000 in interest had actually accrued).” But the Jansens did not provide
14 No. 83994-2-I/15
the January statement or any of their correspondence with the bank; rather, they
relied solely on a declaration from Al Jansen in which he recited the same facts.
The allegations contained in Al’s declaration are insufficient to create an issue of
material fact because they lack sufficient detail regarding how the Jansens were
overcharged. Al claims the Bank’s calculations were wrong, but he does not
dispute that he agreed to the loan terms or explain why the calculations were
wrong. Moreover, he does not allege that the Bank agreed to alter the terms of
the loan or provide any documentation supporting such an assertion. Even when
viewing the evidence in the light most favorable to the Jansens, Al’s declaration
falls short of creating an issue of material fact. The declaration and the Jansens’
briefing are insufficient to show that a duty existed or was breached. This breach
claim fails.
6. Breach 6: Section 4(b)
The Jansens allege that the Bank failed the essential purpose of the
contract by failing to fund the loan agreement after they defaulted. The Bank
contends that it did not need to continue funding the loan after the Jansens
defaulted. We agree with the Bank.
Section 4(b) provides that “Lender will have no obligation to disburse any
Loan Proceeds during any period of time when any default or Event of Default is
outstanding under th[e] Agreement or any of the other Loan Documents.” The
Bank’s decision to stop disbursing funds was therefore sanctioned under the
contract and no breach occurred.
15 No. 83994-2-I/16
7. Breach 7: Attorney Fees
Lastly, the Jansens argue that the Bank “wrongfully assessed attorneys’
fees against the Jansens, and attempted to use these attorneys’ fees to coerce
the Jansens into signing a new agreement.” The Bank counters that section 6(b)
permits it to assess attorney fees incurred in exercising its rights. We agree that
section 6(b) permits the Bank to recoup its fees.
Section 6(b)(vi) requires the borrower to “agree to promptly pay to Lender
all attorney’s fees, costs, and other expenses paid or incurred by Lender in
enforcing or exercising Lender’s Rights and Remedies under th[e] Loan
Agreement.”
Though the Jansens claim the Bank’s assessment of “unjustified
attorneys’ fees was in breach of the [loan agreement],” they do not state which
provision the Bank allegedly breached and do not argue with specificity why the
fees assessed were “unjustified.” The Bank had the right to recoup its fees under
section 6(b); its actions do not constitute a breach.
Duty of Good Faith and Fair Dealing
The Jansens contend the Bank breached its duty of good faith and fair
dealing by failing to “faithfully cooperate to obtain the principal objective of the
[loan agreement].” They allege the Bank “purposefully interfered with the
purpose of the [loan agreement] . . . in an attempt to protect its lien priority status
against Moceri [the original contractor], who had superior lien rights.” The Bank
maintains that a standalone claim for breach of good faith and fair dealing does
16 No. 83994-2-I/17
not exist in Washington and that the Jansens’ claim fails as a matter of law. We
agree with the Bank and affirm the court’s dismissal of this claim.
In every contract, there is “an implied duty of good faith and fair dealing”
that “obligates the parties to cooperate with each other so that each may obtain
the full benefit of performance.” Badgett, 116 Wn.2d at 569. But this duty does
not impose a “free-floating” obligation of good faith on the parties. Rekhter v.
Dep’t of Soc. & Health Servs., 180 Wn.2d 102, 112-13, 323 P.3d 1036 (2014).
Instead, the duty of good faith and fair dealing arises “only in connection with
terms agreed to by the parties.” Badgett, 116 Wn.2d at 569. “ ‘It requires only
that the parties perform in good faith the obligations imposed by their
agreement.’ ” Pierce v. Bill & Melinda Gates Foundation, 15 Wn. App. 2d 419,
433, 475 P.3d 1011 (2020) (quoting Badgett, 116 Wn.2d at 569). Therefore,
“there cannot be a breach of the duty of good faith when a party simply stands on
its rights to require performance of a contract according to its terms.” Badgett,
116 Wn.2d at 570. Thus, here, where the Bank did not breach the contract, it did
not breach its duty of good faith and fair dealing.
The Jansens claim that the present case is analogous to Silverdale Hotel
Associates v. Lomas & Nettleton Company. 36 Wn. App. 762, 677 P.2d 773
(1984). But in Silverdale, the court determined that the lender breached specific
terms of the contract as well as the duty of good faith and fair dealing. 36 Wn.
App. at 767. It is therefore not analogous here. The Bank did not violate its duty
of good faith and fair dealing by standing on its rights and requiring the Jansens
perform the contract according to its terms.
17 No. 83994-2-I/18
Consumer Protection Act
The Jansens contend that issues of material fact exist as to whether the
Bank violated Washington’s Consumer Protection Act. We conclude that the
Jansens fail to show an unfair or deceptive act under the CPA and affirm the trial
court’s dismissal of this claim.
Washington’s Consumer Protection Act makes “[u]nfair methods of
competition and unfair or deceptive acts or practices in the conduct of any trade
or commerce” unlawful. RCW 19.86.020. To establish a private claim under the
CPA, “a plaintiff must establish five distinct elements: (1) unfair or deceptive act
or practice; (2) occurring in trade or commerce; (3) public interest impact;
(4) injury to plaintiff in his or her business or property; [and] (5) causation.”
Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778,
780, 719 P.2d 531 (1986). All five elements must be established for a CPA claim
to succeed. Keodalah v. Allstate Ins. Co., 194 Wn.2d 339, 349-50, 449 P.3d
1040 (2019). The Jansens fail to establish the first: the existence of an unfair or
deceptive act.
Whether an act is unfair or deceptive is a question of law. Panag v.
Farmers Ins. Co. of Wash., 166 Wn.2d 27, 47, 204 P.3d 885 (2009). This
element can be established in one of three ways: “(i) per se unfair or deceptive
conduct, (ii) an act that has the capacity to deceive a substantial portion of the
public, or (iii) an unfair or deceptive act or practice not regulated by statute but in
violation of the public interest.” State v. Mandatory Poster Agency, Inc., 199 Wn.
App. 506, 518, 398 P.3d 1271 (2017) (footnotes omitted). A plaintiff does not
18 No. 83994-2-I/19
need to show intent to deceive, only that the act “ ‘had the capacity to deceive a
substantial portion of the public.’ ” State v. Comcast Cable Commc’ns. Mgmt.,
LLC, 16 Wn. App. 2d 664, 693, 482 P.3d 925 (2021) (quoting Panag, 166 Wn.2d
at 47). “ ‘[W]hether a deceptive act has the capacity to deceive a substantial
portion of the public is a question of fact.’ ” Mandatory Poster Agency, 199 Wn.
App. at 521 (quoting Behnke v. Ahrens, 172 Wn. App. 281, 292, 294 P.3d 729
(2012)).
Here, the Jansens’ conclusory statements are inadequate to establish the
Bank acted deceptively. The Jansens allege the Bank’s conduct was “manifestly
unfair and deceptive” as evidenced by the Bank’s failure to “ensure that the
fundamental safeguards were followed by the contractor,” “disburse the loan
funds pursuant to the contract,” and “convert the loan to a permanent loan.”
They also assert that the Bank “misrepresented that the Jansens were in breach
of the contract.” But aside from these blanket assertions, the Jansens provide no
specificity about how they were deceived or how the Bank’s actions had the
capacity to deceive a substantial portion of the public. And, as discussed above,
the actions the Jansens dub deceptive are all permissible under the contract.
In the alternative, the Jansens maintain that the “capacity to deceive a
substantial portion of the public” inquiry is a question of fact precluding summary
judgment. But for that to hold true, the Jansens needed to have alleged facts
sufficient to create a question of fact. They did not. Speculative or conclusory
allegations do not create a material issue of fact; the Jansens failed to carry their
burden on summary judgment. Elcon Const., Inc. v. E. Wash. Univ., 174 Wn.2d
19 No. 83994-2-I/20
157, 169, 273 P.3d 965 (2012) (“Conclusory statements and speculation will not
preclude a grant of summary judgment.”). We affirm the court’s dismissal of the
CPA claim for failure to meet this first element.
Attorney Fees at Trial Court
Although the Jansens do not assign error to the court’s award of fees to
the Bank, they contend the award should be reversed. The Jansens maintain
that if they prevail on appeal, the Bank’s award of fees should be reversed. But
because the Bank prevails on appeal, we affirm the fee award.
Attorney Fees on Appeal
Both the Jansens and the Bank request fees on appeal. The Bank
requests fees per the terms of the contract and RCW 4.84.330. Under
RCW 4.84.330, a unilateral fee provision in a contract is read bilaterally to permit
the prevailing party in any contract action to recoup its attorney fees and costs.
Thus, as the prevailing party on appeal, the Bank is entitled to fees.
The Jansens claim they are entitled to attorneys’ fees and costs pursuant
to RCW chapter 39.08, RCW chapter 60.28, and Olympic Steamship Company,
Inc. v. Centennial Insurance Company, 117 Wn.2d 37, 811 P.2d 673 (1991).
None of these sources of authority supports their claim to fees. RCW
60.28.030 concerns lien foreclosures and provides that in “any action brought to
enforce the lien, the claimant, if he or she prevails, is entitled to recover . . .
attorney fees in such sum as the court finds reasonable.” Because the Jansens
do not allege that any kind of lien is involved here, RCW 60.28.030 is
inapplicable. RCW 39.08.030 applies to public contracts and allows a party, in
20 No. 83994-2-I/21
an action on bond, to recover attorney fees. Here, the Jansens are not a public
party and cannot recover fees under this chapter. Lastly, in Olympic Steamship,
our state Supreme Court held that an “insured who is compelled to assume the
burden of legal action to obtain the benefit of its insurance contract is entitled to
attorney fees.” 117 Wn.2d at 54. The Jansens are not an insured party in the
present case and do not cogently explain why Olympic Steamship’s fee rule
applies to them.
Because the Jansens do not demonstrate entitlement to fees, and
because the Bank does, we deny their request.
Affirm.
WE CONCUR: