IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON IAN AND KERI SCHUMACHER, ) ) No. 76022-0-I Respondents, ) ) DIVISION ONE v. ) ) UNPUBLISHED OPINION T. GARRETT CONSTRUCTION, ) INC., a Washington corporation, ) ) Appellant, ) ) and ) ) TODD G. and JESSICA YOST, ) husband and wife, and the marital ) community composed thereof, ) ) Defendants. ) FILED: May 22, 2017
TRICKEY, A.C.J. — T. Garrett Construction, Inc. (TGC) appeals the trial court's damages award to Ian and Keni Schumacher. TGC argues that the
construction defects at issue and its failure to construct a cedar fence did not
breach the agreement between the parties or any implied warranties. TGC
requests that, if it prevails on appeal,this court award it the attorney fees it incurred
below. The agreement's terms did not contain any express warranty against
construction defects and did not require TGC to construct a cedar fence. The
construction defects were not serious enough to violate the implied warranty of
, habitability. Therefore, we reverse and remand for an award of attorney fees below
to TGC. No. 76022-0-1 / 2
FACTS
TGC is a construction contractor in the business of remodeling homes and
speculative building. In 2013, TGC began construction of a new house in
Edgewood, Washington.
While the home was under construction, TGC listed it for sale through its
real estate agent, Laura Petkov. Petkov prepared a real estate sales flyer and
placed a listing on the local Multiple Listing Service (MLS). The MLS listing
contained information about the home, including mentioning a cedar fence.
In October 2013, the Schumachers toured the home with their real estate
agent, Doug Walker. The home had been framed, the roof and windows had been
installed, and a partial cedar fence separated the back yard from the neighboring
property.
On October 20, the Schumachers submitted a signed real estate purchase
and sale agreement(REPSA)to TGC offering to purchase the home for $496,900.
The REPSA listed an earnest money amount of $2,500, incorporated by reference
a building specification sheet detailing the components of the property, and
contained an integration clause, an attorney fee clause, and an inspection
addendum. It also included a counteroffer addendum, which added several terms
to the REPSA and included a copy of the sales flyer to illustrate where the additions
would be located.
The inspection addendum provided in part that the REPSA was conditional
on the Schumachers' subjective satisfaction with the property after inspecting it. If
the Schumachers were not satisfied with the property for any reason, they could
2 No. 76022-0-1/ 3
give TGC notice and terminate the REPSA. The Schumachers would waive their
right to terminate the REPSA if they failed to give timely notice or failed to act
during the reply period. The inspection addendum's reply period was set at 10
days after mutual acceptance of the REPSA. If the Schumachers waived their
rights under the inspection addendum,TGC was not obligated to make any repairs
or modifications. The REPSA did not incorporate the sales flyer or MLS listing.
On October 21, Petkov sent Walker an e-mail with an updated builder
specification sheet, which was the final version exchanged by the parties.
TGC signed the REPSA on October 22, and TGC and the Schumachers
initialed each page of the specification sheet on October 23.1
TGC continued construction of the home, including building a prestained,
non-cedar wood fence along the front and side of the home.
Between October 22, 2013 and closing on January 31, 2014, TGC and the
Schumachers communicated regularly and met at the home several times to
discuss the Schumachers' selections of finishes and other items in the home. A
formal walk-though took place on January 22, 2014. Neither party made notes
during the walk-through. The Schumachers made certain requests to TGC during
and immediately after the walk-through, which TGC responded to and satisfied.
The Schumachers did not request to cancel the sale or have their earnest
money returned to them, and did not hire a third, party to inspect the home or the
surrounding land. The home passed all inspections by the building authorities,
and the building department issued it a certificate of occupancy.
1 The parties also signed a limited builder's warranty, but later stipulated that it was unenforceable and inapplicable to the present case. 3 No. 76022-0-1 /4
After closing, the Schumachers complained to TGC about a number of
problems, including issues with the kitchen cabinets and trim, and the exterior
stone veneer of the garage. TGC had improperly installed the stone on the exterior
garage. The Schumachers obtained a bid from Reliable Masonry Service to
remove and replace the exterior garage wall stone for $5,500 plus sales tax.
A year after closing, TGC notified the Schumachers in writing that either it
or its subcontractors would repair some of the alleged defects at no cost. This
included repairing the kitchen cabinetry and trim problems and entirely removing
and replacing the stone on the exterior garage wall. The Schumachers rejected
TGC's offer.
The defects were aesthetic in nature and did not present a significant safety
risk to the Schumachers. The Schumachers did not move out of the home.
In February 2015,the Schumachers filed a complaint against TGC,alleging
breach of contract, breach of the implied warranties of habitability and fitness for a
particular purpose, breach of limited warranty, and violations of the Consumer
Protection Act, chapter 19.86 RCW. The trial court awarded the Schumachers
damages for their breach of contract claim in the amount of $9,772.50. The trial
court based its damages award on the defective stone on the garage exterior
($5,500 plus $522.50 in sales tax), defective cabinets and trim in the kitchen
($350), and TGC's failure to build a cedar fence ($3,400). The trial court dismissed
the Schumachers' other claims. The trial court found that the Schumachers were
the substantially prevailing party and awarded attorney fees and costs totaling
$13,021.31.
4 No. 76022-0-1/ 5
TGC appeals.
ANALYSIS
TGC Assignments of Error
The Schumachers argue that TGC improperly assigns error in its opening
brief by failing to include a specific assignment of error to the trial court's judgment.
The Schumachers claim that this precludes this court from considering any claim
of error in the trial court's judgment. We disagree.
An appellant's brief should include a separate concise statement of each
error it contends was made by the trial court, together with issues pertaining to
those assignments of error and argument in support. RAP 10.3(a)(4), (6). A party's failure to assign error or to provide argument and citation to authority in
support of an assignment of error precludes appellate consideration of an alleged
error. Escude ex rel. Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App.
183, 190 n.4,69 P.3d 895(2003). But this court will not determine cases or issues
on the basis of compliance or noncompliance of the Rules of Appellate Procedure
except in compelling circumstances where justice demands. RAP 1.2(a); State v.
Olson, 126 Wn.2d 315, 318-19, 323, 893 P.2d 629(1995).
Here, TGC's assignments of error were not defective. TGC's notice of
appeal designated the trial court's judgment. TGC's opening brief assigned error
to the three conclusions of law reached by the trial court that form the basis for its
final judgment. TGC's assignments of error are sufficient to satisfy RAP 10.3(a).
5 No. 76022-0-1/6
Stone Garage Exterior and Kitchen Cabinetry
TGC argues that the trial court erred in awarding the Schumachers
damages for its improper installation of the stone garage exterior and kitchen
cabinetry. TGC primarily argues that the implied warranty of habitability was the
only basis on which the Schumachers could have recovered, and that warranty
was not breached. It also argues that the trial court applied the wrong legal
standard to arrive at its damages award. We agree with TGC.
The Schumachers raise several grounds in support of the award: the
counteroffer addendum to the REPSA; policy considerations placing liability on the
builder-vendor; they did not have to request the particular relief awarded by the
trial court; and that TGC erroneously argues that the implied warranty was the sole
remedy available to the Schumachers. The Schumachers' arguments are
unavailing because they are not supported by the record.
A breach of contract occurs when a party to an agreement fails to comply
with a specific term. See G.W. Constr. Corp. v. Professional Serv. Indus., Inc., 70
Wn. App. 360, 364, 853 P.2d 484 (1993). An injured party suing for breach of
contract may seek either damages resulting from the breach or performance under
available warranties. See Panorama Village Homeowners Ass'n v. Golden Rule
Roofing, Inc., 102 Wn. App. 422,430, 10 P.3d 417(2000).
The only duty a builder-vendor of a newly completed residence owes to its
first purchaser, beyond complying with the express terms of the contract of sale, is
the implied warranty of habitability. Stuart v. Co!dwell Banker Comm. Grp., Inc.,
109 Wn.2d 406, 416-17, 745 P.2d 1284 (1987). Washington does not recognize
6 No. 76022-0-1/ 7
an implied warranty of workmanlike performance in contracts for construction of a
dwelling. See Urban Dev. Inc. v. Evergreen Bldg. Prods., LLC, 114 Wn. App. 639,
646, 59 P.3d 112 (2002). The implied warranty of fitness for a particular purpose
does not apply to transactions involving real property. Condon Bros., Inc. v.
Simpson Timber Co.,92 Wn.App. 275, 280-81, 966 P.2d 355(1998). Washington
does not recognize a cause of action for negligent construction on behalf of
individual homeowners. Stuart, 109 Wn.2d at 417.
In Washington,the implied warranty of habitability has replaced the doctrine
of caveat emptor in the context of the sale of new residential dwellings by builder-
vendors. Atherton Condo. Apartment-Owners Ass'n Bd. of Directors v. Blume Dev.
Co., 115 Wn.2d 506, 518, 799 P.2d 250 (1990) (citing House v. Thornton, 76
Wn.2d 428, 457 P.2d 199 (1969)). This implied warranty requires that "the
foundations supporting [the new house] are firm and secure and that the house is
structurally safe for the buyer's intended purpose of living in it." House, 76 Wn.2d
at 436. This implied warranty of habitability arises by implication from the sales
transaction itself and, therefore, is independent of the terms of the sales contract.
Stuart, 109 Wn.2d at 417.
The implied warranty applies to defects that may severely restrict the
habitability of the dwelling, amount to serious structural deficiencies, or present a
substantial risk of future danger. Westlake View Condo. Ass'n v. Sixth Ave. View
Partners, LLC, 146 Wn. App.760,771-72, 193 P.3d 161 (2008); see also Atherton,
115 Wn.2d at 520. The implied warranty does not apply to mere defects in
workmanship, and does not require a builder-vendor to construct a perfect
7 No. 76022-0-1 / 8
residential dwelling. Atherton, 115 Wn.2d at 520, 522 (citing Stuart, 109 Wn.2d at
417).
TGC does not challenge any of the trial court's findings of fact on appeal,
therefore, they are verities on appeal. Tapper V. Emp't Sec. Dep't, 122 Wn.2d 397,
407, 858 P.2d 494 (1993). An appellate court's review is limited to determining
whether those facts support the trial court's conclusions of law and judgment.
Lakeside Pump & Equip., Inc. v. Austin Constr. Co., 89 Wn.2d 839, 842, 576 P.2d
392 (1978). Contract interpretation is a question of law reviewed de novo when
the interpretation does not depend on the use of extrinsic evidence. Wash. State
Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-
Kiewit Constr. Co., 176 Wn.2d 502, 517, 296 P.3d 821 (2013).
In their complaint, the Schumachers claimed that TGC breached the
REPSA by failing to provide all of the items identified in the agreement and building
specification sheet, as well as some of the items paid for as upgrades. At trial,
TGC argued that the Schumachers' breach of contract claim, as related to the
stone garage exterior and kitchen cabinetry defects, had been waived under the
inspection addendum in the REPSA.
The trial court ruled that the inspection addendum's waiver of rights was
enforceable and precluded a number of the Schumachers' claims. The trial court
found that there were several aesthetic defects in and around the home, but none
presented a significant safety risk to the occupants of the home. The trial court
nonetheless awarded damages to the Schumachers for the improper installation No. 76022-0-1 /9
of the stone garage exterior and kitchen cabinetry.2 In its judgment, the trial court
stated that these damages were awarded for breach of contract. The trial court
appeared to base its decision on whether the defects were observable during the
inspection.
The trial court erred in awarding damages to the Schumachers for the
improper installation of the stone garage exterior and kitchen cabinetry. First, the
improper installation of the garage stone and kitchen cabinetry did not breach the
terms of the REPSA. The REPSA did not represent that the challenged items
would be properly installed. The parties did not negotiate any warranty that TGC's
construction work would be performed in a workmanlike manner or to any other
standard. The terms of the REPSA did not provide a basis on which the
Schumachers could maintain a breach of contract claim based on the improper
installation of the stone garage exterior and kitchen cabinetry.
Second, the inspection addendum bars the Schumachers' recovery of
damages for the improper installation of the stone garage exterior and kitchen
cabinetry. The trial court ruled that the inspection addendum was valid and barred
a number of the Schumachers' claims. The parties do not challenge the validity of
the inspection addendum on appeal.
As discussed above, the Schumachers inspected the home and made
certain requests to TGC, which it responded to and satisfied. No further action
was taken during the inspection period. Under the inspection addendum, the
2 In its conclusions of law, the trial court also held that the Schumachers were not entitled to any damages for construction defects or improperly performed work. The trial court similarly held that the inspection addendum barred the Schumachers from recovering damages for a number of other claims. 9 No. 76022-0-1/10
Schumachers thus signaled their subjective satisfaction with the home and waived
their right to demand that TGC make additional repairs or modifications.
Whether the defects were readily observable during the inspection is
irrelevant under the REPSA and the inspection addendum. Under the inspection
addendum, the Schumachers had the opportunity to retain their own inspectors
and to negotiate an extension of the inspection period. The fact that they did
neither does not make TGC contractually liable to them for the improper installation
of the stone garage exterior or kitchen cabinetry. Therefore, the Schumachers
were not entitled to damages for the improperly installed stone garage exterior or
kitchen cabinetry under the REPSA.
Third, the implied warranty of habitability does not provide a basis for
awarding damages to the Schumachers. The trial court found that the defects in
and around the home did not present a significant safety risk to the occupants of
the home, and did not breach the implied warranty of habitability. Therefore, the
implied warranty of habitability does not provide an alternate basis to justify the
damages awarded to the Schumachers for the improper installation of the stone
garage exterior or kitchen cabinetry.
In sum,TGC did not breach the terms of the REPSA,there was no express
warranty between the parties, and the challenged defects did not rise to the level
of breaching the implied warranty of habitability. The trial court erred in awarding
damages to the Schumachers for TGC's improper installation of the stone garage
exterior and kitchen cabinetry.
10 No. 76022-0-1 / 11
The Schumachers claim that the trial court's damages award is supported
by the counteroffer addendum attached to the REPSA. The Schumachers contend
that the counteroffer addendum shows that the parties agreed to install stone
masonry to the front wall of the home. The counteroffer addendum does not add
terms to the REPSA beyond the addition of masonry to the areas indicated in
exhibit B of the counteroffer addendum, and does not provide an express warranty
regarding the quality of workmanship. For the same reasons discussed above, the
counteroffer addendum does not provide a contractual basis for the Schumachers'
recovery of damages.
The Schumachers rely on Atherton to argue that it was proper for the trial
court to consider whether the defects were observable during the walk-through in
light of public policy considerations. 115 Wn.2d 506. Under Atherton, purchasers
have a right to expect to receive what they bargained for and are protected from
latent defects. 115 Wn.2d at 521-22. Liability for defects is properly fixed on the
builder-vendor rather than the purchaser due to the builder-vendor's superior
knowledge and ability to avoid. Atherton, 115 Wn.2d at 521-22. But Atherton
announced these policy considerations in the context of the implied warranty of
habitability. The trial court held that TGC did not breach the implied warranty of
habitability. The defects at issue here are aesthetic and, therefore, the policy
considerations underlying Atherton's analysis of the implied warranty of habitability
carry less weight.
The Schumachers contend that the trial court's damages award for the
stone garage exterior and kitchen cabinetry was proper even though they did not
11 No. 76022-0-1 / 12
request that particular relief. It is true that final judgments must grant the relief a
party is entitled to, even if that party has not requested that particular relief in its
pleading. CR 54(c). But CR 54(c) is inapplicable to the present case because
• TGC is not objecting to the award on that basis. TGC argues that there was not a
valid legal basis to sustain the trial court's damages award to the Schumachers,
not that the trial court erred by awarding relief the Schumachers did not seek. As
discussed above, neither the REPSA nor the implied warranty of habitability
provide a basis. Whether the Schumachers requested the particular relief granted
by the trial court is irrelevant.
The Schumachers argue that TGC erroneously claims that the implied
warrant of habitability is the exclusive remedy available to purchasers of new
residential property from a builder-vendor. The Schumachers claim that TGC
offered no evidence that the parties intended to limit the remedies available to
them. Parties may contract for an exclusive remedy via express agreement, but
the agreement must clearly indicate that the parties intended to limit the available
remedies. Graoch Assocs. No. 5 Ltd. P'ship v. Titan Const. Corp., 126 Wn. App.
856, 865, 109 P.3d 830 (2005). The Schumachers mischaracterize TGC's
position. TGC argues that the implied warranty of habitability is the only implied
warranty that applies to the present case and that the terms of the REPSA do not
provide express warranties. TGC is correct. The REPSA did not limit the remedies
available to the parties. The Schumachers were able to sue for a breach of the
REPSA or any other ground available to them under Washington law. The
12 No. 76022-0-1 /13
Schumachers have not shown that they were impermissibly barred from seeking
remedies by the REPSA or otherwise.
Cedar Fence
TGC argues that the trial court erred in awarding damages to the
Schumachers for their breach of contract claim based on TGC's alleged failure to
build a cedar fence. TGC contends that the REPSA did not require it to build a
cedar fence for the Schumachers, and in the alternative that the inspection
addendum in the REPSA precluded the Schumachers' claim. We agree.
Contractual Obligation
TGC first argues that it was not contractually obligated to build a cedar
fence. Specifically, it argues that the REPSA does not contain any reference to a
cedar fence, including in the specification sheet. The Schumachers claim that
TGC was obligated to construct a cedar fence because the sales flyer, attached to
the counteroffer addendum as exhibit B, mentions one. Because the REPSA did
not require TGC to construct a cedarfence and the sales flyer was not incorporated
in its entirety, we agree with TGC.
"Absent fraud, deceit or coercion, a voluntary signator is bound to a signed
contract." Sherman v. Lunsford, 44 Wn. App. 858, 861, 723 P.2d 1176 (1986).
Parties are bound by the contract as-signed. Wells Trust by Horning v. Grant Cent.
Sauna and Hot Tub Co. of Seattle, 62 Wn. App. 593, 602, 815 P.2d 284 (1991).
The presence of an integration clause "strongly supports a conclusion that
the parties' agreement was fully integrated." Olsen Media v. Enemy Sciences,
Inc., 32 Wn. App. 579, 584, 648 P.2d 493 (1982). If the contract is integrated,
13 No. 76022-0-1 /14
other documents are inadmissible as parol evidence. Olsen Media, 32 Wn. App.
at 584. But if the parties to a contract clearly and unequivocally incorporate by
reference some other document into their contract, that document becomes part
of the contract. Satomi Owners Ass'n v. Satomi, LLC, 167 Wn.2d 781, 801, 225
P.3d 213(2009). Where material is incorporated for a limited purpose, it becomes
part of the contract for that purpose only, and is treated as irrelevant for all other
purposes. W.Wash. Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 102 Wn.
App. 488, 499, 7 P.3d 861 (2000).
The correct interpretation of an integrated agreement is determined as a
question of law, unless it depends on the credibility of extrinsic evidence or a
choice among reasonable inferences that can be drawn from extrinsic evidence.
Berg v. Hudesman, 115 Wn.2d 657, 667-68, 801 P.2d 222 (1990) (quoting
RESTATEMENT(SECOND)OF CONTRACTS § 212(1981)).
Here, the REPSA did not require TGC to construct a cedar fence for the
Schumachers. The REPSA and attached specification sheet do not contain any
provisions requiring TGC to build a fence as part of the home. For example, the
specification sheet details many aspects of the home's construction, but the
landscaping and exterior structure sections do not list a fence. As the trial court
noted in its oral decision, the REPSA and the specification sheet did not mention
a fence.3 Therefore, the REPSA and specification sheet did not create a
contractual duty for TGC to construct a cedar fence.
3 The trial court appeared to determine that the fence was part of the deal based on the fact that one was actually constructed. 14 No. 76022-0-1/ 15
The Schumachers argue that, because exhibit B of the counteroffer
addendum to the REPSA contains a reference to a cedar fence, the parties
intended to require TGC to build a cedar fence. But exhibit B was not incorporated
in its entirety, and the cedar fence was not included in the REPSA as an additional
term.
Exhibit B is a copy of the sales flyer for the home with circled areas on an
illustration of the home. The paragraph describing the home states, "Cedar
fence." But the parties attached this exhibit for the limited purpose of illustrating
two additional terms contained in the counteroffer addendum: "Masonry stone to
be installed in all areas as shown on attached exhibit B (see circled areas)" and
"Covered front porch to be installed as shown on attached exhibit B (see circled
area)."5 The counteroffer addendum does not mention the cedar fence. There is
no indication in the counteroffer addendum that the parties also intended to
incorporate exhibit B's reference to a cedar fence as a term in the contract.
And nothing in the REPSA suggests that the parties meant to incorporate
the other terms in the sales flyer. The REPSA contained an integration clause that
stated, "This Agreement constitutes the entire understanding between the parties
and supersedes all prior or contemporaneous understandings and
representations."6 The REPSA incorporated by reference eight addenda, which
did not include the sales flyer or MLS listing. As the trial court noted, the sales
4 Ex. 1. 5 Ex. 1. 6 Ex. 1 at 4.
15 No. 76022-0-1 / 16
flyer and MLS listing predated the REPSA and were not incorporated by reference
and, therefore, were superseded by operation of the REPSA's integration clause.
In sum, TGC was not contractually obligated to construct a fence for the
Schumachers. The REPSA and its addenda did not include any provision requiring
TGC to construct a fence. The MLS listing and sales flyer both mentioned a cedar
fence, but neither were incorporated into the REPSA. Although a copy of the sales
flyer was included in the counteroffer addendum, it was for the limited purpose of
illustrating the changes to the REPSA agreed to by the parties. Therefore, the trial
court erred in awarding breach of contract damages to the Schumachers based on
TGC's failure to construct a cedar fence.
The trial court, relying on Beg, determined that TGC and the Schumachers
intended that TGC would construct a cedar fence by looking to the MLS listing and
sales flyer as extrinsic evidence. 115 Wn.2d 657. The relevant issue before the
Berg court was the admissibility of extrinsic evidence as to the entire
circumstances under which the contract was made, as an aid to ascertaining the
parties' intent. 115 Wn.2d at 667. Berg involved a dispute between a landlord and
tenant regarding the proper formula used to calculate rent. 115 Wn.2d at 661-63.
To resolve ambiguity in the lease document, the court looked to prior agreements,
prior rental income from subtenants, and other values outside of the master lease
at issue. Berg, 115 Wn.2d at 672-73.
Berg is inapplicable here. As discussed above, the REPSA contained an
integration clause that explicitly superseded all prior or contemporaneous
understandings and representations. The trial court found in its conclusions of law
16 No. 76022-0-1 / 17
that the sales flyer and MLS listing predated the REPSA and were superseded.
The parties did not put forward any other extrinsic evidence in support of their
intent that a cedar fence was part of the REPSA. The trial court erred when it
relied on Berg to find that the parties intended that TGC would construct a cedar
fence.
Inspection Addendum Waiver
In the alternative, TGC argues that even if it was contractually obligated to
construct a cedar fence, the inspection addendum to the REPSA operates to bar
the Schumachers' claims. Because we hold there was no contractual obligation,
we do not determine whether the Schumachers would have waived that right.
The Schumachers argue for the first time on appeal that TGC failed to
establish that it constructed the non-cedar fence within the 10-day inspection
period. They argue that this precludes TGC's argument that the inspection
addendum bars their claim. The Schumachers did not raise this argument
concerning the 10-day inspection period in their complaint or trial brief below.
An appellate court may refuse to review any claim of error which was not
raised in the trial court. RAP 2.5(a). "A party may present a ground for affirming
a trial court decision which was not presented to the trial court if the record has
been sufficiently developed to fairly consider the ground." RAP 2.5(a); see Wilson
& Son Ranch, LLC v. Hintz, 162 Wn. App. 297, 304-05, 253 P.3d 470 (2011)
(allowing a novel argument on appeal may result in injustice to the opposing party
due to lack of notice that it must develop a record).
17 No. 76022-0-1/ 18
Here, the record has not been sufficiently developed to consider the
Schumacher's novel argument. TGC was not given an opportunity below to
address whether the non-cedar fence was constructed within the inspection period
and, if so, how this affected the inspection addendum. We decline to consider the
Schumachers' new argument on appeal.
Attorney Fees and Costs
TGC requests that, if this court reverses the trial court's damages award to
the Schumachers, it also award TGC the attorney fees and costs it incurred below.
The REPSA contains an attorney fees provision, which states that "if Buyer or
Seller institutes suit against the other concerning this Agreement the prevailing
party is entitled to reasonable attorneys'fees and expenses."7 The trial court held
that the Schumachers were the substantially prevailing party and were entitled to
their reasonable attorney fees and costs.
Because we reverse the trial court's damages award for the stone garage
exterior, kitchen cabinetry, and lack of a cedar fence, the Schumachers have not
prevailed on any of their claims against TGC. Therefore, TGC is the substantially
prevailing party and is entitled to recover its reasonable attorney fees and costs
below under the REPSA in an amount to be determined on remand.
Attorney Fees and Costs on Appeal
TGC and the Schumachers each request an award of appellate attorney
fees and costs if they prevail. RAP 18.1. In an action on a contract that specifically
provides for attorney fees and costs, the prevailing party is entitled to its
7 Ex. 1 at 4. 18 No. 76022-0-1/ 19
reasonable attorney fees and costs incurred to enforce the provisions of the
contract. RCW 4.84.330.
The REPSA contains an attorney fees and costs provision that entitles the
prevailing party to its reasonable attorney fees and expenses. On appeal, TGC
challenged the trial court's damages award for construction defects and the lack
of a cedar fence. TGC has prevailed on both. TGC is the substantially prevailing
party on appeal, and is entitled to recover its reasonable appellate attorney fees
and costs.
Reversed and remanded for further proceedings consistent with this
opinion.
WE CONCUR:
--4 577. rn
"