FILED MARCH 3, 2020 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
GENERAL CONSTRUCTION ) COMPANY, a Delaware corporation, ) No. 37044-5-III ) (consolidated w/ Respondent, ) No. 37045-3-III) ) v. ) ) PUBLIC UTILITY DISTRICT NO. 2 of ) UNPUBLISHED OPINION GRANT COUNTY, a Washington ) municipal corporation, ) ) Petitioner. )
SIDDOWAY, J. — This opinion concerns Public Utility District No. 2 of Grant
County’s (PUD) second attempt at interlocutory review of this decade-old construction
contract dispute concerning work done on the Wanapum Dam. In the first appeal of this
lawsuit, this court accepted interlocutory review of a certified question from the superior
court concerning quantum meruit and waiver of contractual provisions. See generally
Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County, 195 Wn. App. 698, 380 P.3d
636 (2016) (opinion published in part). In its current motion for discretionary review, the
PUD asks this court to accept review of a denial of a summary judgment motion. No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
Because the PUD has not met the standards for acceptance of discretionary review, this
court denies review.
FACTS
In our prior review of this case, we considered what remedies are available in a
government construction contract dispute when one party fails to abide by the contract’s
notice and claim provisions. See generally id. We held that the contract’s notice and
claim provisions did not apply to a claim sounding in quantum meruit that sought
payment for additional work performed outside the scope of the contract. Id. at 709
(discussing Bignold v. King County, 65 Wn.2d 817, 399 P.2d 611 (1965)). For additional
work done within the contract’s scope, we held that compliance with the contract’s notice
and claim provisions may be excused upon “unequivocal evidence of an intent to waive”
the provisions. Id. (discussing Mike M. Johnson, Inc. v. Spokane County, 150 Wn.2d
375, 78 P.3d 161 (2003)).
In the unpublished portion of our opinion, Court of Appeals cause no. 32305-6-III
(Wash. Ct. App. Sept. 1, 2016) (http://www.courts.wa.gov/opinions/pdf/323056
_pub.pdf), we also considered what evidence would suffice to prove a waiver. We held
that waiver could only be shown through the actions of someone with actual authority to
waive contractual provisions, or an agent with apparent authority. Id., slip op. at 20-21.
Regarding apparent authority, we noted the well-settled principle that an agent’s apparent
2 No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
authority can only be found through the objective manifestations of the principal, and that
the agent’s actions and representations are irrelevant to that determination. Id. at 20 n.19.
Following remand, the parties continued to engage in discovery, and eventually
proceeded to another round of summary judgment proceedings. The PUD sought
dismissal of General Construction Company’s remaining claims through summary
judgment, citing the recent opinion in NOVA Contracting, Inc. v. City of Olympia as a
basis for renewing its earlier motion. 191 Wn.2d 854, 426 P.3d 685 (2018). The trial
court denied the motion, and ordered the remaining claims to proceed to trial. Although
NOVA discussed the same cases at issue in our prior opinions (Bignold and Johnson), the
trial court found that NOVA’s treatment of those cases did not materially alter our prior
understanding of those cases.1
The PUD then filed a notice and motion for discretionary review. Our
commissioner denied discretionary review, and the PUD filed a motion to modify the
commissioner’s ruling.2 We now deny the motion to modify, and affirm the
commissioner’s denial of discretionary review.
1 In its briefing to this court, the PUD agrees that NOVA did not alter the validity of this court’s prior opinion. Pet’r’s Mot. to Modify Comm’r’s Ruling at 6. 2 Our commissioner also denied discretionary review of a sanctions issue presented by the PUD. The PUD does not seek to modify the commissioner’s denial of review of that order.
3 No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
ANALYSIS
In a motion to modify, this court reviews de novo the ruling of its commissioner.
State v. Nolan, 98 Wn. App. 75, 78, 988 P.2d 473 (1999), aff’d, 141 Wn.2d 620, 8 P.3d
300 (2000). Although ordinarily decided by an order, we exercise our discretion under
RAP 17.6(b) to explain our reasoning in this opinion. Minehart v. Morning Star Boys
Ranch, Inc., 156 Wn. App. 457, 460, 232 P.3d 591 (2010).
The law generally does not favor discretionary review of orders denying summary
judgment. Sea-Pac Co. v. United Food & Comm. Workers Local Union 44, 103 Wn.2d
800, 801-02, 699 P.2d 217 (1985). But this court may grant review where the moving
party meets one or more of the standards set forth in RAP 2.3(b). Here, the PUD seeks
review of the denial of its renewed summary judgment motion under RAP 2.3(b)(1)
(obvious error standard) and RAP 2.3(b)(2) (probable error standard). Explicit in both
standards is a requirement that the moving party carry a burden of production
demonstrating some degree of error.
In denying discretionary review, our commissioner, like the parties, looked to the
reasoning in the superior court’s letter decision that explained why the court was again
denying summary judgment. But we do not do so because “[f]indings of fact on
summary judgment are not proper, are superfluous, and are not considered by the
appellate court.” Kries v. WA-SPOK Primary Care, LLC, 190 Wn. App. 98, 117, 362
P.3d 974 (2015). Instead, we look to the letter decision only to the extent that it informs
4 No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
us of what evidence, briefs, and other materials were before the trial court. From there,
we view that evidence in the light most favorable to the nonmoving party. Id.
In other words, the obvious or probable error that we look for in this context is
whether the superior court’s ultimate result was erroneous, not whether its reasons for
doing so were flawed. This is in keeping with the rule that this court may affirm on any
grounds supported in fact and law, even if different than those stated by the trial court.
RAP 2.5(a). This is also inherent in the standards for discretionary review, requiring the
error be one that renders further proceedings useless (RAP 2.3(b)(1)) or substantially
alter the status quo (RAP 2.3(b)(2)). Further proceedings are not useless and the status
quo is not substantially altered if this court accepts review only to affirm on the same or
other grounds.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED MARCH 3, 2020 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
GENERAL CONSTRUCTION ) COMPANY, a Delaware corporation, ) No. 37044-5-III ) (consolidated w/ Respondent, ) No. 37045-3-III) ) v. ) ) PUBLIC UTILITY DISTRICT NO. 2 of ) UNPUBLISHED OPINION GRANT COUNTY, a Washington ) municipal corporation, ) ) Petitioner. )
SIDDOWAY, J. — This opinion concerns Public Utility District No. 2 of Grant
County’s (PUD) second attempt at interlocutory review of this decade-old construction
contract dispute concerning work done on the Wanapum Dam. In the first appeal of this
lawsuit, this court accepted interlocutory review of a certified question from the superior
court concerning quantum meruit and waiver of contractual provisions. See generally
Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County, 195 Wn. App. 698, 380 P.3d
636 (2016) (opinion published in part). In its current motion for discretionary review, the
PUD asks this court to accept review of a denial of a summary judgment motion. No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
Because the PUD has not met the standards for acceptance of discretionary review, this
court denies review.
FACTS
In our prior review of this case, we considered what remedies are available in a
government construction contract dispute when one party fails to abide by the contract’s
notice and claim provisions. See generally id. We held that the contract’s notice and
claim provisions did not apply to a claim sounding in quantum meruit that sought
payment for additional work performed outside the scope of the contract. Id. at 709
(discussing Bignold v. King County, 65 Wn.2d 817, 399 P.2d 611 (1965)). For additional
work done within the contract’s scope, we held that compliance with the contract’s notice
and claim provisions may be excused upon “unequivocal evidence of an intent to waive”
the provisions. Id. (discussing Mike M. Johnson, Inc. v. Spokane County, 150 Wn.2d
375, 78 P.3d 161 (2003)).
In the unpublished portion of our opinion, Court of Appeals cause no. 32305-6-III
(Wash. Ct. App. Sept. 1, 2016) (http://www.courts.wa.gov/opinions/pdf/323056
_pub.pdf), we also considered what evidence would suffice to prove a waiver. We held
that waiver could only be shown through the actions of someone with actual authority to
waive contractual provisions, or an agent with apparent authority. Id., slip op. at 20-21.
Regarding apparent authority, we noted the well-settled principle that an agent’s apparent
2 No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
authority can only be found through the objective manifestations of the principal, and that
the agent’s actions and representations are irrelevant to that determination. Id. at 20 n.19.
Following remand, the parties continued to engage in discovery, and eventually
proceeded to another round of summary judgment proceedings. The PUD sought
dismissal of General Construction Company’s remaining claims through summary
judgment, citing the recent opinion in NOVA Contracting, Inc. v. City of Olympia as a
basis for renewing its earlier motion. 191 Wn.2d 854, 426 P.3d 685 (2018). The trial
court denied the motion, and ordered the remaining claims to proceed to trial. Although
NOVA discussed the same cases at issue in our prior opinions (Bignold and Johnson), the
trial court found that NOVA’s treatment of those cases did not materially alter our prior
understanding of those cases.1
The PUD then filed a notice and motion for discretionary review. Our
commissioner denied discretionary review, and the PUD filed a motion to modify the
commissioner’s ruling.2 We now deny the motion to modify, and affirm the
commissioner’s denial of discretionary review.
1 In its briefing to this court, the PUD agrees that NOVA did not alter the validity of this court’s prior opinion. Pet’r’s Mot. to Modify Comm’r’s Ruling at 6. 2 Our commissioner also denied discretionary review of a sanctions issue presented by the PUD. The PUD does not seek to modify the commissioner’s denial of review of that order.
3 No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
ANALYSIS
In a motion to modify, this court reviews de novo the ruling of its commissioner.
State v. Nolan, 98 Wn. App. 75, 78, 988 P.2d 473 (1999), aff’d, 141 Wn.2d 620, 8 P.3d
300 (2000). Although ordinarily decided by an order, we exercise our discretion under
RAP 17.6(b) to explain our reasoning in this opinion. Minehart v. Morning Star Boys
Ranch, Inc., 156 Wn. App. 457, 460, 232 P.3d 591 (2010).
The law generally does not favor discretionary review of orders denying summary
judgment. Sea-Pac Co. v. United Food & Comm. Workers Local Union 44, 103 Wn.2d
800, 801-02, 699 P.2d 217 (1985). But this court may grant review where the moving
party meets one or more of the standards set forth in RAP 2.3(b). Here, the PUD seeks
review of the denial of its renewed summary judgment motion under RAP 2.3(b)(1)
(obvious error standard) and RAP 2.3(b)(2) (probable error standard). Explicit in both
standards is a requirement that the moving party carry a burden of production
demonstrating some degree of error.
In denying discretionary review, our commissioner, like the parties, looked to the
reasoning in the superior court’s letter decision that explained why the court was again
denying summary judgment. But we do not do so because “[f]indings of fact on
summary judgment are not proper, are superfluous, and are not considered by the
appellate court.” Kries v. WA-SPOK Primary Care, LLC, 190 Wn. App. 98, 117, 362
P.3d 974 (2015). Instead, we look to the letter decision only to the extent that it informs
4 No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
us of what evidence, briefs, and other materials were before the trial court. From there,
we view that evidence in the light most favorable to the nonmoving party. Id.
In other words, the obvious or probable error that we look for in this context is
whether the superior court’s ultimate result was erroneous, not whether its reasons for
doing so were flawed. This is in keeping with the rule that this court may affirm on any
grounds supported in fact and law, even if different than those stated by the trial court.
RAP 2.5(a). This is also inherent in the standards for discretionary review, requiring the
error be one that renders further proceedings useless (RAP 2.3(b)(1)) or substantially
alter the status quo (RAP 2.3(b)(2)). Further proceedings are not useless and the status
quo is not substantially altered if this court accepts review only to affirm on the same or
other grounds. Accordingly, for this court to properly consider a motion for discretionary
review, the moving party must provide this court not just with the decision of the trial
court, but also with the evidence presented to that court.
Here, the PUD has not provided this court with all of the materials relied on by the
trial court to reach its decision. Without that information, this court cannot determine
whether the trial court committed any error, let alone obvious or probable error, when it
denied summary judgment. Accordingly, the PUD has not met its burden of production
under RAP 2.3(b)(1) and (2).
While we do not consider the letter decision, the PUD urges us to make an
exception because the PUD believes the court contradicted the law of the case in that
5 No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Constr. Co. v. Pub. Util. Dist. No. 2 of Grant County
decision. Thus, the PUD argues review is necessary for this court to enforce its prior
judgment. Such a scenario might be grounds for looking to a court’s letter decision on
summary judgment, but only if the purported error meets all of the requirements of RAP
2.3(b)(1) and/or (2).
Specifically, the PUD points to pages 3 and 4 of the Grant County Superior
Court’s letter decision. Pet’r’s Mot. to Modify Comm’r’s Ruling, App. G, at 66-70.
There, the court appears to state that a reasonable jury could find that the PUD’s agent
had apparent authority to waive the contract’s notice and claim provisions based on the
actions and representations of that agent concerning his own authority. If true, that view
of the law would violate our prior holding that apparent authority is to be found in the
objective manifestations of the principal. But we doubt that the trial court actually
intended to violate the law of the case. This is because, as the PUD points out, the same
court in an earlier summary judgment decision from this case correctly stated that
“[p]laintiff may not rely on the acts and words of [the agent] alone to establish a waiver
of the notice claim provisions of the contract.” Pet’r’s Mot. to Modify Comm’r’s Ruling,
App. E, at 25.
Even if the lower court had incorrectly changed its view of the law in violation of
our prior opinion, discretionary review is not warranted because the PUD has not shown
that the error would render further proceedings useless, substantially alter the status quo,
or substantially limit the freedom of a party to act. The court’s statement was one of
6 No. 37044-5-III (consolidated w/ No. 37045-3-III) Gen. Cons tr. Co. v. Pub. Util. Dist. No. 2 of Grant County
multiple alternative bases for summary judgment. Because the PUD has not provided all
of the evidence relied on by the trial court, we cannot make a determination that the
decision to deny summary judgment was wrong in its entirety.
CONCLUSION
The motion to modify the commissioner's ruling of November 15, 2019, is denied.
The case is remanded to the superior court for further proceedings in accordance with this
opinion and our prior opinion filed September 1, 2016.
A majority of the panel has 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.
WE CONCUR:
Q_ Pennell, A.CJ.