FILED Oct 7, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
DIAMOND ASPHALT PAVING, INC, ) No. 40419-6-III a Washington corporation, ) ) Respondent, ) ) v. ) ) JONATHAN D. CLAUSEN and JODI ) UNPUBLISHED OPINION CLAUSEN, husband and wife, and all ) other persons or parties unknown claiming ) any right, title, interest or lien or estate in ) real estate described in the Complaint ) herein, ) ) Appellants. )
FEARING, J. — Diamond Asphalt Paving, Inc. (Diamond) sues homeowners
Jonathan and Jodi Clausen for a debt incurred when constructing a sport court for the
Clausens. The Clausens responded with a counterclaim for breach of the construction
contract. The superior court granted Diamond summary judgment on the debt and
dismissed the Clausens’ counterclaim. On appeal, we reverse the trial court. We
conclude that genuine issues of relevant facts exist as to whether Diamond breached its
contract with the Clausens. No. 40419-6-III Diamond Asphalt v. Clausen
FACTS
We view the facts in a glow favorable to appellants Jonathan and Jodi Clausen.
The Clausens own and reside together in a home in Spokane. They wished for the
addition of a sport court on their property. Alleged defects in the construction of the
sport court lie at the center of this appeal.
Jonathan and Jodi Clausen hired Stoltz, Inc. (Stoltz) as the earthwork contractor
for the sport court project. Under the parties’ contract, Stoltz’s work encompassed earth
movement, grading, and placement of crushed rock as the final subgrade for the athletic
court. Stoltz informed the Clausens it would grade the sport court with a 1-to-2-percent
slope to the west. Stoltz began work on June 15 and ended on June 29, 2021.
At some unknown time, but prior to the end of June 2021, Jonathan and Jodi
Clausen contacted Diamond Asphalt Paving about paving the sport court. On a bid
proposal dated June 23, Diamond offered to install the asphalt pavement with the scope
of its work to be:
Court Area: We will provide/place the 4” of compacted base rock Court Area: We will kill and provide/place the 2” of commercial hot mix asphalt Driveway Area: We will provide/place the 4” of compacted base rock Driveway Area: We will weed kill and provide/place 2.5” of commercial hma [hot mix asphalt] .... This is based on one mobilization. Subgrade to be ready/approved
2 No. 40419-6-III Diamond Asphalt v. Clausen
for rock prior to our mob[ilization] Exclusions: permits, fees, bonds, testing, engineering/surveying/staking, sawcutting [sic], traffic control, inspections, utility adjustments, patching, joint adhesive/sealant, and prevailing wages.
“Specializing in Quality and Service” One Year limited Warranty
All material is guaranteed to be as specified. All work to be completed in a substantial workmanlike manner according to specifications submitted, per standard practices subject to changes necessitated by physical condition or acts of [G]od. Any alteration or deviation from above specifications involving extra costs will be executed upon written orders and will become an extra charge over and above the estimate. Drainage warranty only applies with minimum of 2% grade. If job size increases, billing will be on finished square feet. A $450.00 charge will be added to all accounts that have to be liened due to non-payment.
Clerk’s Papers (CP) at 115 (alterations added). On either June 27 or June 29, 2021,
Jonathan Clausen signed Diamond’s June 23 bid proposal totaling $39,716.58.
For purposes of constructing a sports court, “fill” comprises the dirt lying at the
bottom or base layer of the court. The next layer, the middle layer, consists of crushed
rock. Finally, asphalt comprises the top layer.
When, on August 1, 2021, Diamond’s superintendent, Guy Anderson, arrived on
the Clausens’ property, he observed that Stoltz had laid insufficient crushed rock for
Diamond to pour asphalt. The rock placed by Stoltz did not cover the entire sport court
area. The edges of the athletic court sloped downward such that Diamond needed to lay
additional rock in some areas to create a suitable flat subgrade for paving.
3 No. 40419-6-III Diamond Asphalt v. Clausen
On August 2, 2021, Diamond Asphalt Paving began work. Before performing its
contractual obligations, Diamond applied previously utilized rock and imported
additional crushed rock to raise the sport court area to paving grade. In summarizing the
additional work Diamond performed for the Clausens, Kim Long, a job superintendent
for Diamond, wrote to Jonathan Clausen on August 18:
[Project superintendent Guy Anderson] indicated that his visual assessment was that the subgrade work done prior to our mobilizing to the job was not correct. With this info, we spoke to you about using our grading expertise to find out the best way to determine the most cost- effective way to correct the existing drainage. After we engineered the site, we felt that we could try to grade all of the base rock we could into an area to save/re-use it and re-subgrade the subgrade for shape/drainage or add some additional base rock to the south side of the court so as to create the desired drainage that you wanted. We brought out the necessary equipment, labor and materials and performed the work. We ended up charging for this extra work.
CP at 126 (emphasis added). Diamond charged Jonathan and Jodi Clausen $2,633.76 for
this extra grading work.
Diamond Asphalt Paving finished the paving project on August 9, 2021. On
August 12, Diamond delivered to the Clausens an itemized invoice, for the total amount
of $42,350.34, the original bid of $39,716.58 plus the extra cost of $2,633.76.
According to Jonathan and Jodi Clausen, on September 11, 2021, the sport court
failed due to heavy rain, a failure they described as seepage like the Grand Canyon. Dirt
and rocks oozed from under the north side of the court. The Clausens asked Diamond to
4 No. 40419-6-III Diamond Asphalt v. Clausen
fix the sport court. Diamond refused and demanded payment under the contract. On
November 5, 2021, Diamond filed a lien against the Clausens’ property.
As a result of the deteriorating sport court, Diamond Asphalt Paving hired
Benjamin Vance, an engineer employed with Liberty Geotechnical Engineers, Inc., to
perform a forensic evaluation and geotechnical investigation report for the Clausens’
project. Vance wrote an extensive report based on his evaluation. Vance wrote in his
report:
Inadequate base rock was observed below the asphalt section. Base rock is critical to supporting the flexible asphalt surface and providing adequate drainage. Approximately ½ inch to 1½ inches of basecourse was encountered during the subsurface exploration. The base rock observed was not adequately fractured. It was found to be mixed with clay, sand, and rounded gravel.
CP at 50. Vance also wrote:
The Courts and Recreational Surfaces Construction and Maintenance Manual, written by the American Sports Builders Association, is a detailed design, construction and maintenance manual. Within Chapter 4 is a section titled Soil Conditions. The following statement is made, “It is essential to determine whether the soil in the area is suitable for the project.” Also, the manual states, “Soil testing and analysis, as well as design recommendations, should be completed by a licensed geotechnical (soils) engineer familiar with local conditions and knowledgeable about the sports facility design.”
CP at 52. Vance added:
5 No. 40419-6-III Diamond Asphalt v. Clausen
2. The clay and clayey sand were not adequately compacted . . . The percent compaction is less than 81.5 percent. Generally, embankment fill should be compacted to at least 92 percent of the modified Proctor. 3. In addition, Standard Penetration Test (SPT) blow count (N) indicated that the soil was not compacted during construction. SPT blow counts can be correlated to density and compactive effort. The SPT blow count of compacted fill would generally be greater than 15. The average SPT blow count measured in the field was 4.5 (excluding the sample driven through a boulder). 4. A void of approximately 28.5 inches was noted below the asphalt pavement at BH-1. Extensive settlement and erosion are likely to have caused the void. 5. A minimal amount of base rock was observed below the asphalt pavement section. Pavement should be supported by base rock to ensure water infiltrating through the pavement can drain away from the surface. Improper drainage will cause premature degradation of the asphalt. Also, the base rock provides support to the asphalt. Although the loads on a sports court are not high, any incidental vehicular traffic will cause the asphalt section to fail. The observed rutting failure of the sports court was likely caused by the lack of base rock support. 6. The moisture content of the soil was high based on laboratory testing of the soil samples. The optimum moisture content based on laboratory testing was approximately 9.2 percent. Moisture content higher than optimum hinders compaction during construction. Using sprinklers overnight to add moisture during construction is not typically performed and is likely the cause of the high moisture content. Additional settlement may occur as the moisture content of the soil goes down. Further settlement will cause more distress in the asphalt pavement. 7. The measured pavement thickness exceeded the recommended minimum thickness recommended by the American Sports Builders Association. However, the engineering, material testing, and construction methodology were not performed for the fill and base rock to support the asphalt pavement section.
CP at 53. Vance further wrote:
6 No. 40419-6-III Diamond Asphalt v. Clausen
The asphaltic pavement for the court appeared to be gently sloping to the north. The slope around the edge of the court was sloped at approximately 1.5H to 1.0V (horizontal to vertical). The slope height at the greatest point was visually estimated to be approximately 13 feet. The native soil below the fill slope gently to moderately sloped to the north and west at approximately 2.5H to 1.0V.
CP at 54.
Jonathan and Jodi Clausen hired J. Robert Gordon, an engineer with
GeoEngineers, to perform a forensic evaluation and geotechnical investigation for the
sport court. Gordon’s extensive report concluded:
It is our understanding that Stoltz and RDC [Diamond] were to slope the asphalt surface to the west. However, either the slope was incorrectly graded so that it sloped to the north, or the increasing depth of the fill soils to the north resulted in settlement of the fill soils such that stormwater flow off the pavement flows to the north. It also concentrated near the basketball post which created an erosion channel in the crushed surfacing, undermined the sport court, and washed out a deep channel in the fill soils. The SCC, [Spokane County Code], [International Building Code] IBC and standard of care for earthwork practices require that adequate erosion and sedimentation practices/BMPs be applied for all land disturbance activities. Clearly Stoltz and RDC did not perform adequate grading, nor were adequate drainage provisions incorporated into the project considering the depth of fill soils and risk of saturation/instability of these slopes. The Clausens installed a strip drain along the northern edge of the asphalt sport court to attempt to catch most of the stormwater. .... The sport court was clearly not constructed in accordance with the SCC, IBC, nor in accordance with standard of care within normal earthwork practices to provide adequate performance. Furthermore, the sport court is at risk of additional damage including additional cracking, erosion, and potential slope failure because of the inadequately compacted fill soils.
7 No. 40419-6-III Diamond Asphalt v. Clausen
CP at 149-150.
PROCEDURE
Diamond Asphalt Paving filed this lawsuit against Jonathan and Jodi Clausen to
procure a judgment for amounts owed under the construction contract and to foreclose on
the property lien if the Clausens did not pay the judgment. In their answer to the
complaint, the Clausens asserted a counterclaim for breach of contract and breach of the
implied duty of good faith.
Diamond Asphalt Paving filed a motion for summary judgment. Diamond argued
it did not breach the contract as the Clausens claimed. In a declaration, Benjamin Vance
opined that Diamond performed its work in a workmanlike manner. Vance sought to
impose the blame on Stolz, the first contractor. He declared:
6. The basis for the sport court’s failure was that the undocumented fill in the first 3’ comprised of material insufficient to support asphalt, that the fill supporting the sport court was insufficiently compacted down to 6’ and 13’ between the two bore holes, and that generally, the asphalt would not have failed had the other components been properly constructed. 7. Attached hereto as Exhibit “B” is a publication titled “Courts and Recreational Surfaces Construction and Maintenance Manual” wherein the proper sport court depth is set forth. The defendants’ [Jonathan and Jodi Clausen’s] contractor for the fill [Stolz] did not meet the requirements.
CP at 35. Vance failed to recognize in his declaration that Diamond assumed some of the
responsibilities of Stolz.
8 No. 40419-6-III Diamond Asphalt v. Clausen
In opposition to the summary judgment motion, Jonathan and Jodi Clausen argued
that Diamond performed defective work and breached the contract when violating the
Spokane County Building Code, the International Building Code, industry customs, and
the standard of care. According to the Clausens, Diamond also directly breached some of
the contract’s written terms. First, Diamond failed to properly prepare the subgrade and
surface for paving. Second, Diamond relatedly failed to properly grade the site and
compact the fill. The poor compaction caused and will continue to cause uneven
settlement across the sport court. The poor compaction caused and will continue to cause
cracking of the surface and valleys in the surface where water pools. Third, Diamond did
not install proper drainage and erosion control. Diamond left the north side and the
northern portion of the west side of the court with steep slopes down to the original site
grades. Fourth, Diamond placed improper fill material on the site. In their brief
opposing the summary judgment motion, the Clausens summarized their complaints:
a. Quantity of material used; b. Price it charged the Clausens; c. Whether the “fill” material it used was proper for the project; d. Whether the subgrade and surface were properly prepared, including compaction of the “fill” material; e. Whether it properly prepared the Court’s drainage; and f. Whether it properly prepared the Court’s erosion control.
CP at 279.
9 No. 40419-6-III Diamond Asphalt v. Clausen
The superior court granted Diamond’s motion for summary judgment. The
superior court concluded that Jonathan and Jodi Clausen’s counterclaims for breach of
contract, based on violation of city and international codes, did not constitute a breach of
contract in part because the scope of work in the construction contract excluded permits,
testing, and inspections. The court further resolved that the Clausens had failed to
identify violations of the contract apart from negligence.
LAW AND ANALYSIS
Jonathan and Jodi Clausen appeal the superior court’s award of judgment to
Diamond Asphalt Paving and the dismissal of their counterclaim. In a related challenge,
the Clausens assign error to the superior court’s grant of reasonable attorney fees and
costs to Diamond. In addition to arguing against the merits of the Clausens’ appeal,
Diamond contends that the Clausens did not assert before the superior court some of the
arguments they now assert on appeal.
Breach of Contract
We recite the obligatory principles of summary judgment. This court reviews a
trial court’s summary judgment ruling de novo. Watkins v. ESA Mgmt., LLC, 30 Wn.
App. 2d 916, 923, 547 P.3d 271 (2024). In doing so, this court views the facts and
reasonable inferences in the light most favorable to the nonmoving party. Ramey v.
Knorr, 130 Wn. App. 672, 685, 124 P.3d 314 (2005). Summary judgment is appropriate
10 No. 40419-6-III Diamond Asphalt v. Clausen
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR 56(c). A material
fact effects in whole or in part the outcome of the litigation. Atherton Condominium
Apartment-Owners Association Board of Directors v. Blume Development Company.,
115 Wn.2d 506, 516, 799 P.2d 250 (1990).
Issue 1: Did Jonathan and Jodi Clausen argue, before the superior court, that
Diamond Asphalt Paving committed the three errors charged to it on appeal?
Answer 1: Yes.
On appeal, Jonathan and Jodi Clausen contend they created questions of fact as to
whether Diamond Asphalt Paving breached the construction contract in three ways.
Diamond failed to lay four inches of compacted base rock. Diamond applied rock that
had not been sufficiently fractured and was mixed with clay, sand, and round gravel.
Diamond did not adequately slope the court. According to the Clausens, these three
defects led to the lack of drainage and caused the court to collapse. But before analyzing
the evidence, we must determine whether the Clausens identified these three errors before
the superior court.
Diamond insists that Jonathan and Jodi Clausen never forwarded the three
purported errors before the superior court when arguing their breach of contract
11 No. 40419-6-III Diamond Asphalt v. Clausen
counterclaim. In so arguing, Diamond claims that the Clausens for the first time on
appeal base a breach of contract action on an e-mail outlining some extra rock work
Diamond performed on the surface before paving. Diamond further insists that the
Clausens, for the first time on appeal, allege a failure of a contractual obligation to lay 4”
of compacted base rock. Finally, Diamond asserts that, for the first time on appeal, the
Clausens argue Diamond bore a contractual obligation to correct and create the drainage
required. We will determine later whether the Clausens hold a valid cause of action for
breach of contract based on these various allegations. For now, we scan the trial record
to discern whether the Clausens presented these allegations to the superior court.
In their summary judgment brief, Jonathan and Jodi Clausen outlined the
deficiencies in the sport court to include, (1) failure to properly prepare the subgrade and
surface for paving, (2) a related failure to properly grade the site and compact the fill, (3)
placement of improper fill material on the site, (4) failure to install proper drainage and
erosion control, leaving the north side and the northern portion of the west side of the
court with steep slopes down to the original site grades. Thus, the Clausens, contrary to
Diamond’s assertion, specifically complained about Diamond’s failure to install the
needed drainage. The Clausens expressly complained that Diamond failed to lay the
amount of rock promised.
12 No. 40419-6-III Diamond Asphalt v. Clausen
The Clausens did not expressly argue that Diamond failed to properly engineer the
site. Nevertheless, we see no distinction in a failure in engineering from a failure to
properly prepare the subgrade and surface, failure to compact the fill, placement of
improper fill, or placement of an inadequate drainage system. Any failure to properly
engineer likely contributed to the inadequate fill, preparation of subgrade, and
deficiencies in the drainage system.
Issue 2: Do Jonathan and Jodi Clausen submit evidence sufficient to create a
genuine issue of material fact as to whether Diamond Asphalt Paving breached the
construction contract?
Answer 2: Yes.
When adjudging whether some facts establish a breach of contract, we must first
determine the terms of the contract, which, in turn, requires us to discern what, if any,
writings became part of the contract. Diamond Asphalt Paving impliedly agrees that its
June 23, 2021, bid became part of the parties’ agreement. Kim Long, authorized agent of
Diamond, and Jonathan Clausen both signed the bid. The bid outlined the scope of the
work to be performed by Diamond. It also stated the price the Clausens would pay for
the work.
Diamond deems the provisions of the June 23 bid to solely delineate the contract
between the parties. It chooses to ignore the August 18, 2021, letter from Kim Long to
13 No. 40419-6-III Diamond Asphalt v. Clausen
Jonathan Clausen. A contract need not be set in stone, but may be fluid. The June 23,
2021, bid proposal excluded engineering from the scope of work by Diamond. But the
August 18, 2021, letter changed the scope of work. Diamond’s Kim Long wrote that
Diamond used its “grading expertise” to determine the most cost-effective way to correct
the existing drainage. CP at 126. Long added that Diamond “engineered the site” in
order to create the desired drainage. CP at 126. According to Long, Diamond brought to
the site the necessary equipment, material, and labor for the job. As consideration, the
Clausens agreed to pay a higher price for this additional work.
We conclude that both the June 23 bid and the August 18 letter comprise the
contract between Diamond Asphalt Paving and Jonathan and Jodi Clausen, and, if
provisions of the contract conflict, the language in the later rendition of the bargain
controls. At least a question of fact arises as to whether the August 18 letter modified the
terms of the June bid. A document can be a contract without calling itself a contract.
Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 152 Ill. Dec. 308,
565 N.E.2d 990, 993-94 (1990). The parties may waive or modify any contract terms.
Shepler Construction, Inc. v. Leonard, 175 Wn. App. 239, 246, 306 P.3d 988 (2013).
While the August 18 letter supports a finding that Diamond Asphalt Paving
assumed the obligation of engineering, other language in the letter supports a conclusion
that Diamond assumed the responsibility for correcting errors in the grading, drainage,
14 No. 40419-6-III Diamond Asphalt v. Clausen
and subgrade previously performed by Stolz. Diamond’s project superintendent claimed
that Stolz incorrectly prepared the subgrade. Diamond stated it used its grading
experience to determine the best way to correct existing poor drainage. Diamond wrote
that it had engineered the site. Diamond brought the “necessary” equipment, labor and
materials to perform the work. CP at 126. The letter does not suggest that any provisions
in the June bid would supersede the promises made in the August 18 letter. In turn, the
Clausens agreed to pay Diamond for this additional engineering and work.
In the August 18 letter, Diamond represented itself as an expert in grading and the
Clausens relied on this expertise when agreeing to pay for the additional work.
Construction has become highly scientific and complex. Davis v. Baugh Industrial
Contractors, Inc., 159 Wn.2d 413, 419, 150 P.3d 545 (2007). Landowners increasingly
hire contractors for their expertise because a nonexpert landowner lacks the capability of
recognizing substandard performance. Davis v. Baugh Industrial Contractors, Inc., 159
Wn.2d 413, 419 (2007).
We now proceed to assess whether Jonathan and Jodi Clausen provide facts to
establish a breach of contract found in both the June bid and the August letter. In its June
23, 2021, bid proposal, Diamond Asphalt Paving promised four inches of compacted base
rock. Diamond’s own expert observed inadequate base rock below the asphalt. Another
expert found only ½ inch to 1½ inches of base rock during a subsurface exploration.
15 No. 40419-6-III Diamond Asphalt v. Clausen
Diamond did not sufficiently fracture the rock and instead mixed the rock with clay, sand,
and rounded gravel. According to the expert, the project needed a sufficient quantity and
an adequate quality of base rock to support the flexible asphalt surface and to provide
adequate drainage.
In the June 23 bid signed by both Diamond and Jonathan Clausen, Diamond
agreed that “all material is guaranteed to be as specified.” CP at 113. Some facts show
that the base rock did not satisfy the guarantee or warranty. As already stated, the
amount of base rock laid conflicted with the contract specifications. According to
Diamond’s own expert, Benjamin Vance, the failure to comply with specifications for the
amount of base rock caused rutting failure of the sports court.
In his August 18 letter to Jonathan Clausen, Kim Long, Diamond Asphalt Paving’s
agent, represented that Diamond’s suggested additional work would “correct the existing
drainage” and “create the desired drainage that you wanted.” CP at 126. The June 23 bid
also afforded a “drainage warranty” with a minimum 2 percent grade. CP at 53. A
reasonable finder of fact could conclude that Diamond promised or warrantied its work
would provide the drainage needed for the sport court. A reasonable trier of fact could
conclude that Diamond agreed to correct the work performed by Stoltz. Both experts
criticized the sloping of the court. Benjamin Vance, Diamond’s expert, wrote that “the
asphaltic pavement for the court appeared to be gently sloping to the north” and the
16 No. 40419-6-III Diamond Asphalt v. Clausen
“native soil below the fill slope gently to moderately sloped to the north and west.”
Diamond continues to insist that Jonathan and Jodi Clausen fail to identify what
contract term or terms Diamond purportedly violated. We have already identified those
terms.
Diamond argues that Jonathan and Jodi Clausen only contend that Diamond’s
work did not meet code specifications and the Clausens cannot recover for such a breach
because the June bid excluded from the scope of work permits, fees, bonds, testing,
engineering, and inspections. Yet none of the bid’s list of exclusions address compliance
with codes or any standard of care. To the contrary, the June bid required Diamond to
perform its work in a “substantial workmanlike manner according to . . . standard
practices.” CP at 208. Experts generally rely on code provisions to determine if a
contractor violated standard practices. Robert Gordon declared that “the sport court was
clearly not constructed in accordance with the SCC, IBC, nor in accordance with [the]
standard of care within normal earthwork practices to provide adequate performance.”
CP at 150.
To prevail on a breach of contract claim, the claimant must establish (1) that the
contract imposed a duty, (2) the duty was breached, and (3) the damages suffered by the
claimant were proximately caused by the breach. Northwest Independent Forest
17 No. 40419-6-III Diamond Asphalt v. Clausen
Manufacturers v. Department of Labor & Industries, 78 Wn. App. 707, 712, 899 P.2d 6
(1995); P.E.L. v. Premera Blue Cross, 2 Wn.3d 460, 481, 540 P.3d 105 (2023). Jonathan
and Jodi Clausen have supplied the court with ample evidence to raise a question of fact
as to each of these three elements.
Diamond Asphalt Paving argues that Jonathan and Jodi Clausen seek recovery for
negligence which claim is barred by Washington’s independent duty doctrine. The
doctrine permits recovery, by one party to a contract, in tort if an injury is traceable also
to a breach of a tort law duty of care arising independently of the contract. Jackowski v.
Borchelt, 174 Wn.2d 720, 278 P.3d 1100 (2012). The doctrine precludes recovery in tort,
not in contract. Diamond cites no authority that precludes a party to a contract from
recovering in contract, even if the other party’s breach of contract also constitutes a tort.
Diamond Asphalt Paving argues that the flooding and erosion resulted from the
lack of density of soil many feet below grade and that it is not responsible for this
problem. Diamond ignores the experts’ opinions that other causes contributed to the
deterioration of the sport court. Diamond also overlooks that a question of fact exists as
to whether it agreed to correct errors made by Stolz.
Jonathan and Jodi Clausen write that the trial court acknowledged a question of
fact existed as to whether Diamond’s work contributed or caused the sport court to fail.
The couple complained that the court did not enter a finding or a conclusion about this
18 No. 40419-6-III Diamond Asphalt v. Clausen
factual question. Because we review orders on summary judgment de novo, findings of
fact and conclusions of law are superfluous. West v. Walla Walla City Council, 34 Wn.
App. 2d 195, 202 n.2, 567 P.3d 634 (2025). A trial court may only enter findings of fact
when ruling on a motion for summary judgment under the limited circumstances detailed
in CR 56(d). Haley v. Amazon.com Services, LLC, 25 Wn. App. 2d 207, 217, 522 P.3d
80 (2022).
CR 56(d) declares:
Case Not Fully Adjudicated on Motion. If on motion under the rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action, the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(Boldface omitted.) Jonathan and Jodi Clausen have not cited this court rule. The rule
allows the trial court to place, in an order, facts that appear without controversy, not facts
in controversy. We agree with the Clausens, however, that a genuine question of fact
exists as to whether Diamond Asphalt Paving’s construction services caused the
deterioration of the sport court.
19 No. 40419-6-III Diamond Asphalt v. Clausen
Attorney Fees
Issue 3: Whether the superior court erred in awarding reasonable attorney fees
and costs to Diamond?
Answer 3: Yes.
The Clausens argue that the trial court erred in awarding attorney fees in
Diamond’s favor because the record contains facts, opinions, and evidence that create
genuine issues of material fact precluding summary judgment. We agree.
The superior court granted Diamond Asphalt Paving an award of reasonable
attorney fees and costs pursuant to a construction lien statute, RCW 60.04.181(3). The
statute reads, in part:
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.
Because we reverse the judgment in favor of Diamond, it is no longer the prevailing
party.
Jonathan and Jodi Clausen request an award of reasonable attorney fees and costs
on appeal pursuant to RCW 60.04.181(3). Although the Clausens win this appeal, we
20 No. 40419-6-III Diamond Asphalt v. Clausen
remand for further proceedings. The superior court will need to decide after trial who is
the prevailing party in this action.
CONCLUSIONS
We reverse the superior court’s summary judgment in favor of Diamond Asphalt
Paving, including the award of reasonable attorney fees and costs. We remand for further
proceedings consistent with this opinion.
A majority of the panel have determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ Murphy, J.
______________________________ Staab, A.C.J.