IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CASCADE CIVIL CONSTRUCTION, LLC, a Washington limited liability No. 84465-2-I company, DIVISION ONE Appellant, UNPUBLISHED OPINION v.
JACKSON DEAN CONSTRUCTION, INC., a Washington corporation; COSTCO WHOLESALE CORPORATION, a Washington corporation,
Respondents,
GREAT AMERICAN INSURANCE CO.,
Defendant.
BIRK, J. — Jackson Dean Construction Inc. was the prime contractor on a
project to build a new corporate headquarters for Costco Wholesale Corporation
in Issaquah, Washington. It subcontracted with Cascade Civil Construction LLC
for excavation work. Cascade filed this action against Jackson Dean seeking,
among other relief, compensation above the contract price for costs it says were
the result of changes Jackson Dean required. The superior court dismissed the
claims at issue on summary judgment on the ground Cascade failed to comply with
contractual notice of claim provisions. Cascade asserts (1) the notice of claim
requirements did not govern its request for additional compensation in these No. 84465-2-I/2
circumstances, (2) if they did govern, it was entitled to a trial on whether its
compliance was excused for impossibility, (3) it was entitled to a trial on whether
Jackson Dean waived compliance, (4) it should have been permitted to amend its
complaint to assert a claim under the cardinal change theory, and (5) the superior
court should not have viewed Jackson Dean as a prevailing party for purposes of
awarding reasonable attorney fees. We reject Cascade’s contentions, affirm the
superior court, and award Jackson Dean reasonable attorney fees on appeal.
Under the subcontract, Cascade agreed to perform earthwork and site
utilities work for $2,871,023.00. Cascade asserts the original construction
schedule called for dewatering to occur before it began excavation. The
subcontract included an acknowledgement that a ground water drawdown would
occur before the start of basement excavation: 17. Subcontractor acknowledges that per bidding documents and subcontract schedule the excavation of all foundations and basement will be completed in the winter wet period. Subcontractor also acknowledges that a dewatering effort for the existing ground water will be implemented and a period of drawdown will occur prior to start of the basement excavation. Jackson Dean Construction does not have control of or certify the conditions of the excavated material at time of haul off.
A handwritten interlineation to this paragraph added, “Materials excavated will be
at the parameters as provided within the project Geotechnical Report.” The
geotechnical report indicated that aspects of the project would require construction
dewatering, and it would be necessary to develop a construction dewatering plan.
Construction was set to begin in early 2020. Under the initial construction
schedule, dewatering was to be complete by January 31, 2020, and Cascade was
2 No. 84465-2-I/3
to begin excavation on February 3, 2020. The project was delayed due to
permitting and the COVID-19 pandemic. Construction resumed in April 2020.
Jackson Dean’s project engineer circulated an updated project schedule on April
22, 2020. Under the revised schedule, Cascade’s excavation was to begin on May
18, 2020, with dewatering to be installed after Cascade began work.
Cascade asserts this schedule change “created a dramatically different set
of work for Cascade.” Cascade’s general manager stated, “Excavation below the
water table is materially different if dewatering is used properly than if it is not used
properly. And for dewatering to be used properly, the well must be drilled and
water pumped from the wells before the excavation begins so that the water table
can be brought down and the soil dried.” Cascade asserted that “by installing
dewatering at the same time as excavation[,] Jackson Dean [created] a situation
where more than one subcontractor would be required to work on different tasks
in the same physical location,” which also slowed its work.
To support its argument that it was not required to give notice of changes
that Jackson Dean ordered, Cascade points to a series of communications in April
and May 2020 it says show Jackson Dean directed the changes resulting from the
new dewatering schedule. Cascade sent a letter, dated April 28, 2020, to Jackson
Dean that listed “impacts we have addressed for the project’s recent revised
schedule dated 4/20/20.” Cascade alerted Jackson Dean to a number of potential
issues, stating, “We will notify [Jackson Dean] when [Cascade] has been directly
delayed and impacted.” Cascade’s general manager testified Cascade “detailed”
the “serious problems” caused by the change in the construction schedule in the
3 No. 84465-2-I/4
April 28, 2020 letter and a May 7, 2020 e-mail string. On May 7, 2020, Jackson
Dean’s general superintendent sent an e-mail requesting a meeting with
Cascade’s leadership. Jackson Dean expressed concerns about Cascade’s
communication, stating it believed Cascade’s issues had been resolved after a
meeting with subcontractors, but Cascade’s project manager later sent a written
notice as if no meeting had been held and no resolution reached. Cascade’s
general manager replied, “I disagree with your assessment,” and promised to
advise when Cascade’s owners could meet.
According to Jackson Dean, the parties met on May 8, 2020. Jackson
Dean’s senior project manager testified, “Jackson Dean and Cascade discussed
the schedule and sequencing issues, including the concern set forth in Cascade’s
April 28, 2020 letter. After the meeting Jackson Dean believed the issues had
been addressed and was hopeful the parties were on track.” Cascade provided
declaration testimony—without specifying a meeting or a date, or attaching
documentation—that “Cascade alerted Jackson Dean that the change would bring
challenges and cost impacts, and Jackson Dean instructed Cascade to proceed
with the work, adhering to its written change instructions.”
In addition to the schedule change, Jackson Dean directed Cascade to
make a deeper excavation under one of the buildings, pursuant to a design change
from the project architect. A Jackson Dean representative testified in pretrial
discovery the change was “substantial,” and increased the amount of work that
Cascade had to perform. Between July 8, 2020 and July 16, 2020, Cascade was
included in an e-mail chain where Jackson Dean and another subcontractor
4 No. 84465-2-I/5
exchanged e-mails discussing the deeper excavation. Cascade did not participate
in the discussion in those e-mails.
On July 17, 2020, Cascade sent a letter to Jackson Dean requesting change
orders “for the additional scope of work for the months of April through July,” stating
that $503,233.17 was outstanding. On July 20, 2020, Cascade wrote to Jackson
Dean expressing concerns resulting from delayed dewatering. Cascade stated
conditions would reduce productivity and increase costs, and, concerning both
already completed work and future work, listed various costs it associated with site
conditions:
[W]ith more truck volume and reduced effectiveness, more crew time is required at an increased cost of labor and equipment and supervision.
. . . [W]e assess that 1/3 of the excavation was impacted, approximately 13,700 [cubic yards] which is 18,300 truck cubic yards. While we expected some wet materials, we did not expect a majority of wet materials based on the requirement to have the groundwater drawn down prior to starting the excavation. We estimate that the material in question had 15% more moisture tha[n] it would have had the dewatering system been effective. . . . The cost of trucking disposing of the additional 2,745 truck yards is $65,700. . . .
The wet sloppy nature of the material affects the productivity of the work to cut, handle and load also. We estimate that the cost of this to be an additional . . . $64,200. This represents an additional 5 days of time to perform this work. This will also require additional sweeping for these added days 50 hours at $155/[hour] $7,750.
Finally, we will be forced to use an excavator to cut to the subgrade elevation rather than [a] dozer as was expected and is conventional. . . . The increased cost is $15,400.
Cascade stated the extra costs totaled $282,375.00, and requested nine additional
contract days.
5 No. 84465-2-I/6
In a statement of claim that Jackson Dean marked received on August 25,
2020, Cascade sought additional costs of $1,561,818.66 and 133 additional
contract days for increased costs and expenses incurred from excavating at the
same time the dewatering system was being installed and increased costs and
expenses incurred in excavating before dewatering occurred. Cascade offered
declaration testimony that it did not submit this claim because it believed there was
a dispute, but as “back up documentation” supporting the additional costs. On
September 23, 2020, Jackson Dean rejected the statement of claim “in its entirety,”
based among other reasons on the notice of claim provisions.
The parties contemporaneously discussed other changes and price
adjustments. Cascade sent letters claiming additional costs associated with the
deeper excavation. Jackson Dean repeatedly requested additional information,
beginning December 2020 to at least as late as fall 2021 according to our record.
Meanwhile, on May 21, 2021, Cascade recorded a claim of lien seeking
compensation of $3,715,211.39 above the contract price.1 Cascade later filed this
action, seeking foreclosure of its lien and alleging Jackson Dean had failed to pay
amounts owing “under the [subcontract] and various change orders.” On May 3,
2022, the superior court granted Jackson Dean’s motion for partial summary
judgment regarding Cascade’s failure to comply with the notice and claim
procedures. The parties filed a notice of settlement, in which they agreed that “all
claims asserted in this lawsuit have either been settled between the parties or
1 The record indicates that an amended claim of lien in the amount of $4,185,494.56 was signed on January 20, 2022, but it is unclear if the amended claim of lien was recorded.
6 No. 84465-2-I/7
dismissed via” the partial summary judgment order. Cascade appeals the
summary judgment order.
I
Cascade’s first argument is that the notice of claim provisions were not
triggered because, when Jackson Dean directed that Cascade perform different
and additional work to excavate in damp soils and to a deeper level, Jackson Dean
appreciated it was requesting more costly work. Cascade argues paragraph 4.1
of the subcontract permitted Jackson Dean to require different and additional work
with associated price adjustments, but this event by itself did not trigger
subsequent provisions in paragraph 4.2 covering any “dispute.” Paragraph 4.1
addressed the event of Jackson Dean issuing a change order:
4.1 Change Orders. [Jackson Dean] may, without notice to [Cascade]’s surety, if any, and without invalidating this Subcontract, order in writing extra Work or make changes by altering, adding to or deducting from the work and the Subcontract Price and/or time shall be adjusted as mutually agreed. [Cascade] shall have no claims for additional payment for extras or changes unless the extra or changed Work, and any time extension requested in connection with the change, have been approved in writing by both [Jackson Dean] and [Cascade] prior to the extra or changed Work being performed. This provision shall be strictly enforced.
Cascade argues this paragraph controls the present dispute, not the separate
notice provisions. Cascade reasons there is no need to require notice to Jackson
Dean of changes it ordered. Cascade says this is in “stark contrast” to paragraph
4.2, which applies “[i]n case of any dispute”:
4.2 Notice of Change or Claim. In case of any dispute regarding the existence of or the adjustment for any change to [Cascade]’s work, [Cascade] shall give [Jackson Dean] written notice of its intent to make claim whether for an extension of time or
7 No. 84465-2-I/8
adjustment in Subcontract Price. The notice shall describe with particularity and detail: (a) the occurrence(s) giving rise to [Cascade]’s claim; (b) the portion(s) of [Cascade]’s Work known to be affected, and the cost and time ramifications thereof, including all backup and information necessary for [Jackson Dean] to independently evaluate the claim. Such notice shall be given in writing within five (5) calendar days of the initial occurrence(s) upon which [Cascade]’s claim is based, or a shorter period if such period is set forth in the Main Contract. The giving and content of notices required by this Section shall be an absolute condition precedent to [Cascade]’s right to make any claim, whether against OWNER[ or Jackson Dean] and any failure shall waive and be a complete bar to any claim or other adjustment to this Subcontract.
Cascade argues this provision was not triggered when Jackson Dean changed the
work and directed Cascade to proceed, because there was then no dispute.
To further support its argument, Cascade points to provisions it attributes to
the prime contract between Jackson Dean and Costco. The prime contract is
incorporated into the subcontract. According to Cascade, the prime contract
provides for a “Construction Change Directive,” which it defines as a “written order
prepared by the Architect and signed by the Owner and Architect, directing a
change in the Work prior to agreement on adjustment, if any, in the Contract Sum
or Contract Time, or both.”2 For a construction change directive, the prime contract
provides methods to adjust the contract price independent from the claim process
described in paragraphs 4.2 and 5.2 of the subcontract. This indicates, Cascade
says, the parties’ intent that change orders may support price adjustments “per
agreement,” without resort to the notice provisions.
2 Rather than the actual contract between Jackson Dean and Costco, Cascade appears to rely on provisions of the standard American Institute of Architects Document A201™, “General Conditions of the Contract for Construction” (2017). Jackson Dean does not challenge this document as setting forth the referenced terms of the prime contract.
8 No. 84465-2-I/9
Jackson Dean agrees it was allowed to order changes under paragraph 4.1,
but it says that unless the parties agreed on a price adjustment, then under
paragraph 4.2 Cascade was required to provide written notice of its intent to claim
a price adjustment in compliance with the stated time and content requirements.
In addition, Jackson Dean says there was a further notice requirement in
paragraph 5.2 applicable in any situation in which Cascade sought additional
compensation, together with a requirement in paragraph 5.3 that Cascade submit
a statement of claim timely after giving notice under either paragraph 4.2 or 5.2.
Paragraphs 5.2 and 5.3 spelled out these terms in additional detail, and made
compliance an absolute condition precedent to any claim:
5.2 Notice. [Cascade] shall give [Jackson Dean] written notice of its intent to make claim whether for an extension of time or an adjustment in the Subcontract Price. The notice shall describe with particularity and detail: (a) the occurrence(s) giving rise to [Cascade’s] claim; and (b) the portion(s) of [Cascade’s] Work known to be affected and the cost and time ramifications thereof, including all backup and information necessary for [Jackson Dean] to independently evaluate the claim. Such notice shall be given in writing within five (5) calendar days of the occurrence(s) upon which [Cascade’s] claim is based. In addition, within fifteen (15) calendar days of the initial occurrence(s) upon which [Cascade’s] claim is based, Subcontract shall give [Jackson Dean] written notice of the recovery plan which [Cascade] believes will mitigate and/or eliminate the impact of the occurrence(s) on [Cascade’s] Work. The giving and content of the notices required by this Section shall be an absolute condition precedent to [Cascade’s] right to make claim, whether against OWNER or [Jackson Dean] and failure to strictly comply with the notice, content or timing requirements of this Section shall waive and be a complete bar to any claim or other adjustment to this Subcontract.
5.3 Statement of Claim. Prior to the time required by the Main Contract in the case of a [Cascade] claim against OWNER pursuant to Section 5.4 or no later than thirty (30) calendar days after providing notice pursuant to 4.2 or 5.2, [Cascade] shall provide [Jackson Dean]
9 No. 84465-2-I/10
with a further detailed Statement of its Claim(s) (“Statement”). . . . Submission of this Statement containing all of the foregoing elements within the time periods set out in this section shall be an absolute condition precedent to [Cascade]’s right to prosecute any claim. If the Statement is not provided by [Cascade] in strict compliance with the content and time periods set out in this Section, [Cascade]’s Claim(s) shall be deemed to have been released, barred and otherwise waived.
(Emphasis added.) Jackson Dean asserts that because Cascade did not comply
with either the content or timing requirements of these paragraphs, its claims are
barred.
The parties’ dispute concerning the effect of the change order, notice of
claim, and dispute provisions presents a question of contract interpretation. This
is a question of law. Allstate Ins. Co. v. Neel, 25 Wn. App. 722, 724, 612 P.2d 6
(1980). When the only question relates to the effect of language in a written
contract, the court may decide the question on summary judgment. Id. We review
this issue de novo. Boyd v. Sunflower Props., LLC, 197 Wn. App. 137, 142, 389
P.3d 626 (2016). We agree with Jackson Dean that the notice provisions applied
and Cascade’s noncompliance bars its claims.
In general, Washington decisions enforce notice and claim procedures in
construction contracts. Mike M. Johnson, Inc. v. County of Spokane, 150 Wn.2d
375, 388-89, 78 P.3d 161 (2003) (collecting cases). An owner’s having actual
notice of a changed condition in the work is not an exception to compliance with
mandatory contractual protest and claim provisions. Id. at 387-88. The rule of
Mike M. Johnson extends to claims for expectancy and consequential damages,
beyond merely claims for payment for disputed work. NOVA Contracting, Inc. v.
City of Olympia, 191 Wn.2d 854, 857, 426 P.3d 685 (2018). Cascade does not
10 No. 84465-2-I/11
take issue directly with Mike M. Johnson, but argues that this case involves a
change order governed by paragraph 4.1 and a construction change directive
within the meaning of the prime contract.
Nevertheless, Cascade does not demonstrate a contractual basis here for
claiming compensation above the contract price. Cascade emphasizes that
paragraph 4.1 allows for changes and then provides for corresponding price
adjustments, but this is only “as mutually agreed.” Cascade points to no mutual
agreement on a price adjustment. Cascade neglects the balance of paragraph
4.1, which continued, “[Cascade] shall have no claims for additional payment for
extras or changes unless the extra or changed Work . . . have been approved in
writing by both [Jackson Dean] and [Cascade] prior to the extra or changed Work
being performed.” This aspect of paragraph 4.1 called for changes to be approved
in writing before the work occurred. It is undisputed Cascade submitted its claim
for a price adjustment only after completing a significant amount of the changed
work. In the absence of mutual agreement, any price adjustment needed to be
obtained in compliance with the procedures of paragraphs 4.2 and 5.2.
Cascade also does not establish that a construction change directive
governed the work at issue. The record does not include any written order signed
by the architect and the owner. To support the existence of a construction change
directive, Cascade pointed in its opposition to summary judgment to testimony by
Jackson Dean’s superintendent. Greg Hiner testified there were several change
orders that impacted Cascade’s work and some were issued by the architect. But
this testimony does not establish a construction change directive as that term is
11 No. 84465-2-I/12
defined, nor relieve Cascade of the obligation to provide notice of claiming
amounts above the contract price. Moreover, the standard terms to which
Cascade points also required notice to claim additional compensation, saying, “If
the Contractor wishes to make a Claim for an increase in the Contract Sum, notice
as provided in Section 15.1.3 shall be given before proceeding to execute the
portion of the Work that is the subject of the Claim.”
Cascade does not argue that it complied or substantially complied with the
notice provisions. While Cascade provided some written indication its costs could
increase, it does not argue it identified the portions of the work that would be
affected, or provided the cost and time ramifications, a timely recovery plan, and a
timely statement of claim, together with supporting information that would allow
Jackson Dean to obtain corresponding price adjustments from Costco. Cascade’s
claims are barred by paragraphs 4.2 and 5.2, unless those paragraphs cannot be
enforced under Cascade’s alternative arguments.
II
Cascade’s second argument is that even if the notice provisions governed
its claim for additional compensation, there is a question of fact requiring trial on
whether its compliance was excused for impossibility. To avoid summary
judgment, Cascade was required to present evidence supporting a genuine issue
of material fact. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182
(1989). In this inquiry, we construe all evidence and the reasonable inferences
therefrom in favor of the nonmoving party. Boyd, 197 Wn. App. at 142. The
corollary of this rule is that a nonmoving party’s declaration must be taken as true
12 No. 84465-2-I/13
unless it is inadmissible on other evidentiary grounds. Haley v. Amazon.com
Servs., LLC, 25 Wn. App. 2d 207, 224, 522 P.3d 80 (2022). We review a summary
judgment ruling de novo. Boyd, 197 Wn. App. at 142.
Cascade argues, “When a contractor omits information in a contractually
required notice because it is impossible to determine the additional costs that will
be incurred, this is evidence that strict compliance was waived due to the receipt
of notice of impossibility.” It relies on Weber Construction, Inc. v. Spokane County,
124 Wn. App. 29, 35, 98 P.3d 60 (2004). In Weber Construction, a county road
contractor encountered boulders in the work area that were unsuitable for shallow
fills and for building embankments. Id. at 34. The contractor invoked the formal
contract procedures to obtain a price adjustment. Id. at 34. The contractor
protested the county’s change order, “asking where it should dispose of the
unusable boulders.” Id. at 35. In a second letter, the contractor again explained,
“it could not make a cost estimate because the County had not told Weber where
to dispose of the boulders.” Id. We held there was a question of fact for trial on
whether the county had waived compliance with the notice provisions, because it
knew the contractor was required to provide a dollar cost estimate, was aware of
this requirement, and was attempting to meet it, and the county failed to give
specific information the contractor had requested. Id. at 35-36.
The evidence that Cascade presented in opposition to Jackson Dean’s
summary judgment motion is not analogous. Cascade did not invoke the
contractual notice provisions and, as the contractor in Weber Construction did,
attempt to comply while documenting specific reasons it could not comply. The
13 No. 84465-2-I/14
declaration testimony Cascade offered, which we accept as true under the
summary judgment standard, established that Jackson Dean changed the work,
the changes significantly impacted Cascade’s work, and the impacts would
increase cost. But the declaration does not explain that Cascade attempted to
comply with the notice provisions, provide reasons it could not give estimates of
the costs its work would entail under the changed conditions, or indicate that it
depended on Jackson Dean for any information to do so. Cascade offered
declaration testimony that “the various consequences of the construction schedule
change that Jackson Dean directed in writing could not be determined up front
because Cascade could not predict how quickly Jackson Dean’s delayed
dewatering would bring down the water table and Cascade could not determine
how much interference would occur as a result of Jackson Dean’s direction for
Cascade to excavate at the same time and in the same location as dewatering was
being installed.” This testimony is too generalized to support a conclusion that
compliance, or substantial compliance, was impossible at the time of Cascade’s
work. But it does not align with the facts justifying the outcome in Weber
Construction in any event.
Weber Construction was based on the county’s lack of response to the
contractor’s stated inability to comply with the notice provisions at the time of the
county’s change order. 124 Wn. App. at 35. The declaration testimony Cascade
offered in litigation is not evidence that Jackson Dean made compliance impossible
at the time of the change order by refusing to provide information requested at that
time. Cascade’s near contemporaneous April 28, 2020 letter documented that
14 No. 84465-2-I/15
there were impacts and would be price effects, but did not state, like the
contractor’s communications in Weber Construction, that it was invoking the notice
provisions or depended on additional information from Jackson Dean to meet
them. While Cascade went on to incur price impacts as it predicted, it did not
invoke the notice provisions at that time either, or report cost impacts within five
days as required by paragraph 5.2. The evidence that supported a question of fact
for trial in Weber Construction is lacking. Cascade’s impossibility argument is
unavailing.
III
Cascade’s third argument is that there is a question of fact requiring trial on
whether Jackson Dean waived Cascade’s compliance with the notice provisions.
We again apply the summary judgment standard. Young, 112 Wn.2d at 225; Boyd,
197 Wn. App. at 142. Cascade argues the trial court should have found
“reasonable jurors could have concluded from the evidence that Jackson Dean
voluntarily and intentionally waived the written approval requirement when it issued
construction change directives to Cascade.” Cascade’s evidence is insufficient to
create a triable issue concerning waiver.
A contracting party may waive a contract provision by conduct, if there are
unequivocal acts of conduct evidencing an intent to waive the contract’s
requirements. Mike M. Johnson, 150 Wn.2d at 391. Cascade fails to point to
evidence of unequivocal acts by Jackson Dean showing that it was waiving
compliance with the notice provisions. Cascade does not cite authority that issuing
change orders alone can amount to a waiver of notice provisions, and Mike M.
15 No. 84465-2-I/16
Johnson holds that a contracting party’s having actual notice of another’s protest
does not, by itself, imply waiver. Id. In changing the work, Jackson Dean did not
waive Cascade’s contractual obligation to give notice of an intent to claim
additional compensation. Cascade’s April 28, 2020 letter is insufficient to create a
fact question premised on unequivocal acts of conduct by Jackson Dean. The
letter did not specifically request any action by Jackson Dean, but, to the contrary,
advised, “We will notify [Jackson Dean] when [Cascade] has been directly delayed
and impacted.” The May 7, 2020 e-mail exchange includes a request by Jackson
Dean for more effective communication, but lacks any substantive response from
Cascade concerning the notice provisions or indicating that any action by Jackson
Dean was expected or required. This evidence fails to show an unequivocal act
by Jackson Dean indicating it was waiving compliance with the notice provisions.
Cascade’s waiver argument is unavailing.
IV
Cascade’s fourth argument is that it should have been permitted to amend
its complaint to add a claim under the cardinal change theory. In its response to
Jackson Dean’s summary judgment motion, Cascade included a section
requesting the court to allow it to amend its complaint to seek quantum meruit
recovery under the cardinal change theory. The parties and the superior court did
not address this request at the summary judgment hearing, and the superior court
did not address it in the order granting Jackson Dean’s motion. We review a trial
court’s denial of leave to amend a complaint for “ ‘manifest abuse of discretion.’ ”
Herron v. Tribune Publ’g Co., 108 Wn.2d 162, 165, 736 P.2d 249 (1987) (quoting
16 No. 84465-2-I/17
Del Guzzi Constr. Co. v. Glob. Nw., Ltd., 105 Wn.2d 878, 888’ 719 P.2d 120
(1986)). Cascade’s request to add a new claim included in its response to Jackson
Dean’s summary judgment motion was not noted for consideration to obtain leave
of court to amend in compliance with the King County Superior Court Local Civil
Rule 7. It also failed to comply with CR 15(a), because it did not meet the
requirement of the rule that “a copy of the proposed amended pleading,
denominated ‘proposed’ and unsigned, shall be attached to the motion.” It was not
an abuse of discretion for the trial court to implicitly deny Cascade’s procedurally
defective request to add a new claim and reach Jackson Dean’s properly noted
summary judgment motion.
V
Cascade’s fifth argument challenges the superior court’s award of
reasonable attorney fees to Jackson Dean under the contract and the lien statute.
Paragraph 5.7 of the subcontract provided, “In the event that . . . litigation is
instituted to enforce or contest the provisions of this SUBCONTRACT or adjudicate
any question arising under this SUBCONTRACT, the prevailing party shall be
entitled to all of its attorney fees and all costs of such . . . litigation.” RCW
60.04.181(3) states, in regard to construction liens, “The court may allow the
prevailing party in the action, whether plaintiff or defendant, as part of the costs of
the action, the moneys paid for recording the claim of lien, costs of title report, bond
costs, and attorneys’ fees and necessary expenses incurred by the attorney in the
superior court, court of appeals, supreme court, or arbitration, as the court or
arbitrator deems reasonable.”
17 No. 84465-2-I/18
Cascade argues that even if Jackson Dean was entitled to prevail on the
aspects of the parties’ dispute adjudicated in the summary judgment motion,
Jackson Dean was nevertheless not properly viewed as a prevailing party.
Cascade argues this is so because, it says, when the parties’ settlement of other
issues is factored into the computation, Cascade should be viewed as the
prevailing party in the action. Cascade argues, “Washington courts can determine
the prevailing party by considering the underlying settlement.” It relies on
Hernandez v. Edmonds Memory Care, LLC, 10 Wn. App. 2d 869, 450 P.3d 622
(2019). There, laborers on a construction project who had not been paid
unsuccessfully sought wages from the subcontractor who had hired them and from
the general contractor’s superintendent. Id. at 871. The laborers retained counsel,
filed a lien against the property, and filed a lawsuit. Id. at 872. The project owner
promptly paid the wage claim, but not the incurred attorney fees. Id. at 872-73.
We held the laborers were prevailing parties entitled to reasonable attorney fees
under RCW 60.04.181(3), despite the fact the owner had not contested their wage
claim once they filed it. Id. at 875, 880-81. Among other reasons, we observed,
“laborers often do not have the resources to hire attorneys” and the “fee shifting
statute provides a reasonable way to provide laborers with access to courts to
enforce their right to be paid for work they have performed.” Id. at 881.
Hernandez did not hold that a court should incorporate settlement
recoveries into the calculus of who is a prevailing party under RCW 60.04.181(3).
The court indicated that after the owner received the laborers’ complaint, it paid
the claimed wages when it “sent the laborers’ counsel a check for the lien amount,
18 No. 84465-2-I/19
along with a letter thanking counsel for giving [the owner] notice of the laborers’
claims and stating that [it] was not aware of them before counsel’s notification.” 10
Wn. App. at 872. The court did not identify this payment as a settlement.
Separately the owner offered to “settle this matter” by paying a portion of the
claimed fees, but this was rejected and the parties litigated the issue of fees. Id.
The reasoning of Hernandez does not extend to Cascade, who sued, resolved
certain claims by compromise, chose to litigate others, and did not succeed on the
claims it litigated. On the claims the parties litigated to judgment, Jackson Dean
was the prevailing party and was properly awarded reasonable attorney fees under
paragraph 5.7 of the subcontract and under RCW 60.04.181(3). For the same
reasons, and under RAP 18.1(a), we award Jackson Dean reasonable attorney
fees on appeal.
Affirmed.
WE CONCUR: