Filed Washington State Court of Appeals Division Two
March 4, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II DWP GENERAL CONTRACTING, INC., a No. 59099-9-II Washington Corporation,
Appellant,
v.
WILSON ARCHITECTS, PLLC, a Washington UNPUBLISHED OPINION professional limited liability company; and RYAN WILSON, an individual,
Respondents.
LEE, J. — DWP General Contracting (DWP) appeals a trial court order granting Ryan
Wilson and Wilson Architects’1 motion for summary judgment and dismissing DWP’s claims.
DWP argues that there was a genuine issue of material fact as to whether Wilson proximately
caused DWP’s injury. Wilson seeks appellate attorney fees and costs.
We affirm the summary judgment order. And we deny Wilson’s request for appellate
attorney fees and costs.
FACTS
A. BACKGROUND AND LEE’S LAWSUIT AGAINST DWP
In 2015, Dr. Harold Lee hired DWP as a general contractor to build an apartment complex.
Dennis Pavlina, DWP’s president, drafted the contract for the project. The parties’ contract gave
1 DWP sued both Wilson Architects as a professional limited liability corporation and Ryan Wilson as an individual. For clarity, we refer to Ryan Wilson by his first name and to the respondents collectively as Wilson. We mean no disrespect. No. 59099-9-II
DWP 180 days after the start of construction to substantially complete the project. Wilson
Architects was the architect for the project.
DWP began construction in September 2015. In September 2016, six months after the
contracted completion date, DWP stopped work because Lee had stopped making payments.
When DWP stopped work on the project, the project was still incomplete; the apartment complex
was about only 60 percent complete at that time.
Lee contacted Ryan, an intern architect working on the project, asking him “to see if there
was anything [he] could do to help” resolve the work stoppage. Clerk’s Papers (CP) at 137. Ryan
then met with Pavlina to discuss the work stoppage. Ryan determined that the work stoppage was
the result of a breakdown in communication between DWP and Lee, so Ryan offered to act as a
mediator between the two parties and to manage the construction going forward.
Ryan e-mailed Pavlina a draft “Agreed Upon Procedures” (AUP), which set forth the terms
for DWP to resume work on the project. In that e-mail, Ryan said, “I think you have most of the
leverage at this point, so let me know . . . what changes you would like to see to get this project
moving forward again.” CP at 481. Pavlina asked Ryan to add details allowing DWP to terminate
the contract if Lee was late on payments. Throughout his communications with Ryan, Pavlina was
insistent that Lee had breached the contract by failing to timely make payments. Pavlina did not
ask Ryan to incorporate any provisions waiving consequential damages or extending the original
substantial completion date. Ryan did not know that the project was past the original contract
deadline when he drafted the AUP.
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The AUP was incorporated into the original contract via a change order. Pavlina signed
the change order incorporating the AUP into the original contract without having an attorney
review the AUP.
The AUP provided that Wilson Architects would regularly visit the work site and oversee
the administration of the project, as well as coordinate and oversee the process by which DWP
applied for and received progress payments. The AUP did not mention the contract price or
deadline. And the change order incorporating the AUP, which Pavlina signed, clearly stated that
the AUP did not change the original contract price or deadline.
After Pavlina and Lee signed the change order incorporating the AUP into the original
contract, Ryan asked Pavlina to send over an updated construction schedule for the project,
commenting: “I’m sure that whatever schedule you created before is now void, which is fine. . . .
[P]lease update based on where things stand today and send it over.” CP at 37. But Pavlina never
put together an updated construction schedule for the project. Instead, Ryan regularly visited the
project site to discuss progress with Pavlina.
DWP resumed construction in October 2016 and finished the project in June 2017. When
another dispute about construction delays and payments arose, Ryan mediated the dispute at the
request of both DWP and Lee. Ryan issued a decision memo about the dispute, observing that
Lee’s complaints about the construction delays and DWP’s complains about late payments were
“more correctly treated as a breach of contract” dispute. CP at 89 (underlining omitted). Lee then
sued DWP for breach of contract, seeking damages for lost profits from the delay in finishing
construction.
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At a jury trial in Lee’s lawsuit against DWP, Ryan testified that, if he had known that DWP
was well beyond the original construction deadline and in breach of the contract when he drafted
the AUP, he “would have addressed it” in the AUP. CP at 140. Ryan also testified that he had e-
mailed Pavlina about the construction schedule being void based entirely on his own assumption
that the original schedule was void. He explained, “I had not seen any previous construction
schedules and because of the walk-off, I assumed that even if one had been created, it was no
longer applicable. So I was just saying create a new construction schedule and get it to me as soon
as you can.” CP at 143.
Pavlina testified that the primary purpose of the AUP was to ensure timely responses to
construction administration matters, timely payments, and to have Ryan, not Lee, determine when
the project was substantially complete.
The jury found that DWP breached its contract with Lee. The jury awarded Lee
approximately $500,000 in damages for DWP’s breach of contract.
B. CURRENT LAWSUIT
After the jury found DWP liable for breaching its contract with Lee, DWP sued Wilson for
negligence, unauthorized practice of law, and a violation of Washington’s Consumer Protection
Act. For the negligence claim, DWP alleged that Wilson owed DWP a duty in preparing the AUP.
CP at 6. DWP alleged that “Defendants breached that duty by improperly documenting the status
of the construction, by failing to review the Construction Contract, and by failing to modify the
completion date despite stating that it was void.” CP at 6. “As a result of Defendants’ breach of
their duty,” DWP alleged that it suffered damages in the form of the “amount awarded by the jury”
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in Lee’s lawsuit “plus attorneys’ fees and costs.” CP at 6. DWP also alleged that Ryan’s actions
in drafting the AUP and change order constituted the unauthorized practice of law.
1. Summary Judgment Motions
Wilson moved for summary judgment, seeking dismissal of all of DWP’s claims, and DWP
moved for partial summary judgment on its unauthorized practice of law and negligence claims.2
Wilson argued that DWP lacked “evidence to support that any action of Wilson
proximately caused DWP’s damages, let alone[] was a violation of a recognized duty.” CP at 634.
Wilson insisted that, for DWP to prevail on its negligence claim, “DWP must show that they would
have been in a better position had Wilson included language waiving the consequential damages
and changing DWP’s deadline to complete its work,” which DWP could not do because there was
“no evidence” that Lee would have agreed to those changes. CP at 636.
In support of its motion, Wilson submitted Lee’s deposition excerpts from Lee’s lawsuit
against DWP. In that deposition, Lee stated that he did not believe the AUP changed the original
contract time or otherwise cancelled or replaced anything in the original contract. And Lee stated
that he had no concerns about signing the AUP “because our issue was . . . Construction
Administration, Progress Payment, you know, Project Completion.” CP at 554. “So to me the
[concern] was not . . . what I was signing, the main concern was how we have some sort of
document so that both part[ies] can agree upon for the procedure of things so that it can be
completed.” CP at 554-55.
2 The trial court considered the two motions together, but DWP’s motion is not in the record on appeal, although our record does contain declarations filed in support of that motion.
5 No. 59099-9-II
DWP argued that Wilson owed DWP a duty of care because “DWP was at least one of the
intended beneficiaries of the agreement to resolve the October 2016 dispute and resume work on
the Project.” CP at 734. DWP asserted that Ryan breached that duty of care by failing to address
in the AUP the fact that DWP was long past the contractual completion date, and that this breach
proximately caused DWP’s injury of being sued by Lee. DWP contended that Ryan’s e-mail
stating the original construction schedule was void constituted evidence that Ryan “thought that
Lee would” have agreed to waive consequential damages and the original construction deadline.
Verbatim Rep. of Proc. (VRP) at 38.
Pavlina filed a declaration stating that DWP would not have agreed to the AUP if Ryan
“had informed [Pavlina] that these documents did not modify the original completion date in the
Construction Contract and did not include a mutual waiver of consequential damages.” CP at 21.
Pavlina asserted that DWP “would have no incentive to proceed with the job without addressing
these issues because its exposure to damages would only worsen with time.” CP at 21. In another
declaration, Pavlina asserted that in a phone call before he signed the change order incorporating
the AUP into the original contract, Ryan assured Pavlina “that DWP would not get sued when the
project was complete.” CP at 668.
DWP also submitted declarations from former Washington Supreme Court Justice Phillip
Talmadge. Talmadge opined that Ryan had engaged in the unauthorized practice of law by drafting
the AUP and that Ryan breached both his duty of care and fiduciary duty as an attorney to DWP
through his negligence in drafting the AUP. Talmage stated that Wilson’s negligence was the
proximate cause of DWP’s damages, because “had Wilson raised the issue in October 2016, when
6 No. 59099-9-II
he acknowledged that DWP had leverage, DWP could have avoided or mitigated liability in
connection with delay. Lee was desperate to have DWP return to the project and he likely would
have signed whatever was required to accomplish that result.” CP at 754. DWP did not submit
any evidence of statements or testimony from Lee that he would have waived consequential
damages or agreed to extend the construction deadline in order to have DWP resume work.
In reply, Wilson asserted that Talmadge’s opinion “regarding proximate cause consists of
nothing more than inadmissible speculation and conclusory statements.” CP at 807. Wilson
argued that DWP had provided “no evidence . . . that Howard Lee would ever agree to any sort of
change” in the contract deadline and “no evidence that [DWP] would have been in a better position
had it simply quit” because DWP would still have been liable for breach of contract as well as any
increased construction costs when Lee hired a replacement contractor to complete the project.
VRP at 45; CP at 807.
2. Summary Judgment Ruling
The trial court ruled that Wilson had “engaged in activities that normally would be done
by an attorney,” but the court was unconvinced that DWP had any evidence to support its claim
that Wilson proximately caused DWP’s damages. VRP at 51. The trial court also ruled that
DWP’s Consumer Protection Act claim failed as a matter of law.3 Accordingly, the trial court
denied DWP’s motion for partial summary judgment, granted Wilson’s motion for summary
judgment, and dismissed all of DWP’s claims with prejudice.
DWP appeals.
3 This claim is not at issue in this appeal.
7 No. 59099-9-II
ANALYSIS
DWP argues that the trial court erred by dismissing its claims on summary judgment
because there was a genuine issue of material fact as to whether Wilson proximately caused DWP’s
damages. DWP asserts that Pavlina’s declaration claiming that Ryan told Pavlina DWP would not
get sued was evidence that a reasonable juror could use to “fairly infer that both DWP and Wilson
understood the [AUP] to include a waiver of consequential damages and modify the construction
schedule.” Br. of Appellant at 22-23. DWP argues that evidence that Lee wanted DWP to resume
work was evidence from which a rational juror could infer that, had the AUP included the
consequential damages waiver and reset the construction schedule, Lee would have agreed to those
concessions. DWP insists that such a modification to the contract schedule would have been
supported by consideration in the form of Wilson’s management of the project and DWP not suing
Lee for his failure to pay.
Wilson responds that it is not possible to reasonably infer that Lee would have waived the
breach of contract claims that led to DWP’s damages. Wilson emphasizes that there was no
evidence except improper speculation from Talmage that Lee would have accepted an AUP term
that waived his claim for consequential damages or reset the construction schedule. And had DWP
abandoned the job entirely instead of signing the AUP, DWP would similarly have been exposed
to liability for breach of contract.
A. LEGAL PRINCIPLES
We review a trial court’s summary judgment ruling de novo. Crisostomo Vargas v. Inland
Wash., LLC, 194 Wn.2d 720, 728, 452 P.3d 1205 (2019). Summary judgment is appropriate when
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the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any
genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR
56(c). “We review all facts and reasonable inferences drawn from those facts in the light most
favorable to the nonmoving party.” W.M. v. State, 19 Wn. App. 2d 608, 621, 498 P.3d 48 (2021),
review denied, 1 Wn.3d 1012 (2022).
“A genuine issue of material fact exists if reasonable minds could disagree on the
conclusion of a factual issue.” Id. In other words, “[s]ummary judgment is appropriate if a plaintiff
fails to show sufficient evidence that creates a question of fact about an essential element on which
[they] will have the burden of proof at trial.” Sartin v. Estate of McPike, 15 Wn. App. 2d 163,
172, 475 P.3d 522 (2020), review denied, 196 Wn.2d 1046 (2021). “[S]peculation and
argumentative assertions are not sufficient to create a genuine issue of material fact.” Hungerford
v. Dep’t of Corr., 135 Wn. App. 240, 254, 139 P.3d 1131 (2006), review denied, 160 Wn.2d 1013
(2007).
An expert opinion may be sufficient to create a genuine issue of material fact and defeat
summary judgment. Sartin, 15 Wn. App. 2d at 172. “But an expert’s opinion must be grounded
in fact, and statements based solely on speculation or assumptions will not preclude summary
judgment.” Id. at 173.
“The elements of a negligence cause of action are the existence of a duty to the plaintiff,
breach of the duty, and injury to plaintiff proximately caused by the breach.” Hertog v. City of
Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Similarly, even assuming without deciding
that Ryan engaged in the unauthorized practice of law when he drafted the AUP that was
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incorporated into the original contract that Pavlina drafted, “[l]egal malpractice requires a showing
of (1) the existence of an attorney-client relationship giving rise to a duty of care to the client, (2)
act or omission in breach of the duty, (3) damages to the client, and (4) proximate causation
between the breach and damages.” Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 863-64,
147 P.3d 600 (2006), review denied, 161 Wn.2d 1011 (2007). The trial court’s ruling in this case
primarily rested on the proximate cause element of any claim, and that is the only element at issue
in this appeal.
Proximate cause is usually a question of fact, but a court may decide the issue “where the
causation question requires legal analysis.” Hipple v. McFadden, 161 Wn. App. 550, 562, 255
P.3d 730, review denied, 172 Wn.2d 1009 (2011). And “[t]he court may decide cause in fact as a
matter of law . . . if the facts and inferences from them are plain and not subject to reasonable
doubt or difference of opinion.” Behla v. R.J. Jung, LLC, 11 Wn. App. 2d 329, 347, 453 P.3d 729
(2019), review denied, 195 Wn.2d 1012 (2020). In other words, causation “becomes a question of
law for the court only when the causal connection is so speculative and indirect that reasonable
minds could not differ.” Mehlert v. Baseball of Seattle, Inc., 1 Wn. App. 2d 115, 119, 404 P.3d
97 (2017).
“When determining questions of causation in a legal malpractice action, the concern is
cause in fact, i.e., the ‘but for’ consequences of an attorney’s negligent act or omission.” Hipple,
161 Wn. App. at 562. “The plaintiff must demonstrate that ‘but for’ the attorney’s negligence
[they] would have obtained a better result.” Smith, 135 Wn. App. at 864. Specifically, “the
evidence in the legal negligence matter must be sufficient to allow the trier of fact to reach a
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conclusion that is more favorable than the one that was reached based on the original presentation.”
Dang v. Floyd, Pflueger & Ringer, PS, 24 Wn. App. 2d 145, 165, 518 P.3d 671 (2022), review
denied, 200 Wn.2d 1032 (2023).
B. NO GENUINE ISSUE OF MATERIAL FACT REGARDING PROXIMATE CAUSE
Here, establishing a causal link between Ryan’s preparation of the AUP and DWP’s
damages required evidence that, in a document governing construction administration prepared six
months after the original deadline for construction completion had passed, Lee would have agreed
to waive the approximately $500,000 in consequential damages that he later pursued and won at
trial against DWP. The only evidence DWP cites in support of this theory is Talmadge’s
declaration, which asserted that Lee “was desperate to have DWP return to the project and he
likely would have signed whatever was required to accomplish that result.” CP at 754.
“[A]n expert’s opinion must be grounded in fact, and statements based solely on
speculation or assumptions will not preclude summary judgment.” Sartin, 15 Wn. App. 2d at 173.
There is no evidence that Lee would have waived consequential damages or agreed to extend the
contract timeline in order to have DWP resume work. At best, there was evidence from Lee’s
deposition that he wanted the project finished and was not particularly worried about handing over
the administrative reins to Wilson. But in that same deposition, Lee stated that he did not believe
the AUP changed the original contract deadline, which was consistent with the plain language of
the change order incorporating the AUP into the contract. And Wilson is correct that, had DWP
refused to return to work on the project unless its hypothetical demands were met, Lee could have
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hired another contractor to finish the project and then sought additional damages in his lawsuit
against DWP.
Even viewing the evidence and drawing all reasonable inferences in the light most
favorable to DWP, there is no evidence in the record to support Talmadge’s speculation that Lee
“likely would have signed whatever was required” to bring DWP back onto the project. CP at 754.
Without evidence that Lee would have waived consequential damages and extended the
construction deadline, there is no evidence to create a genuine question of material fact about
whether Ryan’s drafting of the AUP proximately caused DWP’s damages resulting from the
breach of contract trial between Lee and DWP. Mehlert, 1 Wn. App. 2d at 119.
DWP argues that it could have waived its breach of contract claim against Lee in exchange
for Lee waiving consequential damages and extending the contract deadline, and that this
agreement would have been supported by consideration. But the theoretical possibility of such an
agreement does not change the lack of evidence that Lee would have agreed to waive his claims
in the first place or that the waiver of claims was ever an issue during negotiation of the AUP.
DWP offers no evidence that it ever considered offering to waive its breach of contract claim
against Lee. Similarly, evidence about what Ryan told Pavlina about the effect of the AUP or how
Pavlina interpreted the AUP does not change the plain language of the change order that Pavlina
signed, which clearly states that the AUP did not change the original construction deadline. Viking
Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 713, 334 P.3d 116 (2014) (explaining that
extrinsic evidence may be used to determine the meaning of specific words or terms in a contract,
but not to contradict or modify the contract’s plain language).
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DWP cannot establish a genuine issue of material fact regarding proximate cause sufficient
to preclude summary judgment. Accordingly, we hold that the trial court did not err by granting
Wilson’s motion for summary judgment and dismissing DWP’s claims.4
ATTORNEY FEES ON APPEAL
Wilson requests attorney fees and costs on appeal as a sanction for a frivolous appeal under
RAP 18.9. RAP 18.9(a) authorizes this court to order a party to “pay terms or compensatory
damages” if the party files a frivolous appeal. “An appeal is frivolous if, considering the entire
record, the court is convinced that the appeal presents no debatable issues upon which reasonable
minds might differ and that it is so devoid of merit that there is no possibility of reversal.” Lutz
Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007), review denied, 162 Wn.2d 1009
(2008). “And we resolve all doubts to whether an appeal is frivolous in favor of the appellant.”
Id.
Although DWP does not prevail on appeal, its appeal was not utterly devoid of merit.
Therefore, we deny Wilson’s request for attorney fees and costs on appeal.
CONCLUSION
We affirm the trial court’s summary judgment order. And we deny Wilson’s request for
appellate attorney fees and costs.
4 Wilson also asserts that DWP is judicially estopped from changing the position DWP took during the breach of contract litigation with Lee, where DWP argued that the AUP did not change the construction deadline. And Wilson argues that Pavlina’s declaration statement interpreting the AUP is inadmissible extrinsic evidence. Because we resolve this case in Wilson’s favor on the proximate cause issue, we do not reach Wilson’s arguments about judicial estoppel or extrinsic evidence.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Maxa, P.J.
Che, J.