IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KAN CUI and YAN LIU, husband and wife, No. 88906-1-I
Appellants, DIVISION ONE v. UNPUBLISHED OPINION MELINA LIN, a single person, Respondent.
MANN, J. — Kan Cui and Yan Liu sued Melina Lin alleging that Lin failed to comply with her obligations under a signed agreement settling an earlier dispute about the extension of a shared dock. Cui and Liu appeal the trial court’s order dismissing their complaint on summary judgment.
Because genuine issues of material fact remain, we reverse and remand for trial.
I
Cui and Liu are married and have lived on a property on North Mercer Way since 2010. Cui and Liu’s property is upland and does not front on Lake Washington. Lin’s property is next door to Cui and Liu and fronts on Lake Washington. When these two properties were subdivided in 1979, the developer established easement rights between the two properties so that the upland property would have full ingress and egress to
Lake Washington, where there is a shared beach, dock, boathouse, and moorage buoy rights.
After Lin purchased and moved to her property in 2017, Lin denied access to a portion of her driveway that Cui and Liu had used for years. Cui and Liu sued and obtained an order protecting their access rights. Cui and Liu also recovered their attorney fees and costs. The parties have not been on good terms since.
In February 2022, Lin submitted an application to the City of Mercer Island (City)
to construct a dock extension that branched off the existing shared dock. According to Lin, she approached Cui and asked if he was interested in joining the dock extension, and he declined.
Cui and Liu objected to Lin’s dock extension and filed an appeal of the City’s shoreline permit to the Shoreline Hearings Board (SHB). On October 25, 2022, before the SHB hearing on the merits, the parties settled and entered a written “Agreement to Construct Dock Extensions” (agreement). The agreement provided that each party would be able to construct their own dock extension for their exclusive use. The agreement included the following terms:
1. Lin agrees to the current dock being extended up to a length allowed by code and at about the similar length as Lin’s proposed approved dock extension, by Cui, under the agreed terms and conditions herein. If this dock extension cannot be approved to a length of 50 feet or more, then this Agreement shall be void and of no effect, except for paragraph 4.
This extension is referred to as the Cui new dock extension. This extension is only for a dock extension; no additional structure shall be constructed on the dock without Lin’s express consent.
2. The Cui new dock extension must meet the code/standards, and regulations, and Cui must obtain all the required permits, and pay for all the fees, costs, modifications, improvements arising from this dock extension.
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3. Using a dock construction company reasonably acceptable to both parties, all applicable shoreline and government standards and regulations will be adhered to. Lin is not held liable legally or financially for any code compliance or claims in any form, due to Cui new dock extension. Lin will be held harmless from any liabilities resulting from the construction and the use by Cui and Cui’s guests of the Cui new dock extension.
4. Lin dock extension is solely owned and used by Lin. Lin will have exclusive use of the Lin dock extension and accompanying boat lifts and jet ski lifts which have to date been approved by the government bodies.
Lin’s dock extension will continue uninterrupted by Cui. Cui agrees not to interfere with the Lin Dock extension project and construction. Cui agrees to the construction of Lin Dock extension. Lin has the exclusive right to decide the usage on the Lin property shoreland that is on the right side of the existing dock.
5. The current Cui moorage ring buoy entitlement and anchor, allows the moorage of a boat in basically the same location as the Cui new dock extension. There are no changes on any existing easements currently in place. But when Cui new dock extension is approved and built, all the easement terms related to ring Buoy and its related rights shall become obsolete and superseded.
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8. This Agreement is not to extend any existing easement rights from the existing dock into the Cui’s new dock extension unless otherwise stated.
The easement rights for the Cui's new Dock extension are specifically stated in this agreement.
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11. Cui shall be granted full long-term perpetual and appurtenant easement rights for use and enjoyment of the Cui new dock extension as described. Cui shall have exclusive use and moorage of the left portion of the Cui new dock extension.
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13. Both parties will fully and in good faith cooperate with each other in the construction of both the Lin and Cui new dock extensions.
14. The terms of this arrangement would be put into writing as some amendments or redrafting of prior Declarations would be required. These amendments will be recorded to King County only after Cui new dock extension has been built. Cui must apply for the Cui new dock extension
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to the appropriate government authority (in this case the City of Mercer Island) within 2 years after the date of this Agreement and must substantially construct the new dock extension within three (3) years after all required permits are granted/approved. If either of these time requirements are not met, then this agreement will become void and all easements in this Agreement will be of no effect, except for paragraph 4.
15. The location and construction of the Lin and Cui new dock extension will not impede or obstruct any prior easement rights of either party unless it is stated otherwise.
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17. The parties hereto shall execute and deliver all documents and provide all information as may be necessary or appropriate to achieve the purposes of this Agreement.
18. This Agreement is not designed to change or alter any previous easement agreements or rulings regarding the waterfront and dock rights of the parties.
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20. If permits and applications for Cui new dock extension are rejected for any reason, then this Agreement will be invalid and of no further effect.
Based on the agreement, the SHB appeal was dismissed. Lin then began construction of her dock extension with Seaborn Pile Driving (Seaborn) as the contractor. Lin’s dock extension was completed in 2023.
Cui and Lin also retained Seaborn to construct their dock extension. On December 16, 2022, at Lin’s request, Cui and Liu sent Lin their proposed dock extension plan. Seaborn informed Cui and Liu that they would need to obtain four permits or approvals: (1) review under the State Environmental Policy Act (SEPA); (2) a City building permit; (3) a permit from the Washington State Department of Fish and Wildlife; and (4) a permit from the US Army Corps of Engineers. The SEPA review and
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building permit was required by the City. Cui and Liu, through Seaborn, applied to the City for their dock extension in February 2023.
Because Lin owned the property where the dock extension was proposed, the City required Lin’s written approval before it could approve the permits. On June 7, 2023, the City asked both parties to re-sign the dock extension agreement in front of a notary so that Cui and Liu’s permit could be approved. The City stated that the application would be on hold until it received the notarized agreement. The City set a deadline of September 5, 2023, or Cui and Liu’s permit application would expire. Both parties received the letter.
On September 8, 2023, the City e-mailed Seaborn stating that the dock extension agreement needed to be re-signed and notarized. Lin responded that she would hire an attorney to review the agreement. Cui and Liu asked the City to extend the deadline date to October 4, 2023.
On September 26, 2023, the City revised its request and asked for a letter from Lin stating that she consented to Cui and Liu’s dock extension, replacing the previous requirement for a notarized agreement. Lin again refused to re-sign the agreement, and Cui and Liu requested another deadline extension from the City until November 24, 2023.
On October 12, 2023, Lin e-mailed that she obtained an attorney to review the agreement. On November 22, 2023, Cui and Liu e-mailed Lin attaching the e-mails from the City requiring that Lin write a letter consenting to the dock extension. Lin did not write the letter, and Cui and Liu requested another deadline extension.
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On July 11, 2024, the City sent a letter to Seaborn stating that Lin needed to submit a letter consenting to the dock extension and attached an affidavit of ownership and affidavit of agent authorization for Lin’s signature. The City set a new deadline date of September 9, 2024. On August 2, 2024, Cui and Liu sent Lin the City’s July 2024 letter by e-mail and certified mail. Lin sent an e-mail on August 2, 2024, stating that she would like to get a new easement agreement drafted and signed before she signed the letter for the City.
On August 16, and again on August 20, 2024, Cui and Liu e-mailed Lin asking her to sign the documents before the City’s deadline of September 9 or that she would breach the agreement.
On September 9, 2024, a new attorney for Lin contacted Cui and Liu’s attorney stating that the agreement needed to be rewritten because it was confusing.
On October 21, 2024, the City confirmed with Lin that that the permit application had expired and that a new permit application would be needed.
Cui and Liu sued Lin for breach of the agreement in November 2024. Cui and Liu also sought declaratory relief asking the court to grant Liu and Cui full access to Lin’s dock extension and prohibiting Lin from obstructing the full use and access.
Lin moved for summary judgment and dismissal. Cui and Liu moved for partial summary judgment to establish breach of contract.
The trial court granted summary judgment to Lin. The trial court concluded that:
(1) Lin complied with her contractual obligations in the dock extension agreement, (2) Cui and Liu failed to timely execute an easement agreement per the dock extension
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agreement, and (3) Cui and Liu failed to timely apply for a permit extension with the City.
Cui and Liu appeal.
II
A
We review summary judgment orders de novo and perform the same inquiry as the trial court. Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). Summary judgment is proper if the record before the trial court establishes “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).
We review the trial court’s conclusions of law pertaining to contract interpretation de novo. Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 712, 334 P.3d 116 (2016). “It is the duty of the court to declare the meaning of what is written, and not what was intended to be written.” Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990) (quoting J.W. Seavey Hop Corp. of Portland v. Pollock, 20 Wn.2d 337, 348- 49, 147 P.2d 310 (1944)).
To interpret the contract, we give its words their ordinary, usual, and popular meaning unless the entire agreement clearly demonstrates a contrary intent. Hearst Commc’n, Inc. v. Seattle Times Co., 154 Wn.2d 493, 504, 115 P.3d 262 (2005). “An interpretation of a contract that gives effect to all provisions is favored over an interpretation that renders a provision ineffective.” Snohomish County Pub. Transp. Benefit Area Corp. v. FirstGroup Am., Inc., 173 Wn.2d 829, 840, 271 P.3d 850 (2012).
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And we view “the contract as a whole, interpreting particular language in the context of other contract provisions.” Viking Bank, 183 Wn. App. at 713.
B
Cui and Liu argue that the trial court erred when it concluded that the separate easement agreement was a condition precedent to Lin’s performance under the dock extension agreement. We agree.
“‘Conditions precedent’ are ‘those facts and events, occurring subsequently to the making of a valid contract, that must exist or occur before there is a right to immediate performance, before there is a breach of contract duty, before the usual judicial remedies are available.’” Tacoma Northpark, LLC v. NW, LLC, 123 Wn. App. 73, 79, 96 P.3d 454 (2004) (quoting Ross v. Harding, 64 Wn.2d 231, 236, 391 P.2d 526 (1964)). “Whether a contract provision is a condition precedent or a contractual obligation depends on the intent of the parties.” Tacoma Northpark, 123 Wn. App. at 80. If the condition does not occur, the parties are excused from performance. U.S. Bank Nat’l Ass’n v. Roosild, 17 Wn. App. 2d 589, 599, 487 P.3d 212 (2021). Whether a contract provision is a condition precedent or a contractual promise depends on the intent of the parties, to be determined from a fair and reasonable construction of the language used in light of all the surrounding circumstances. Roosild, 17 Wn. App. 2d at 599.
“[W]ords such as ‘provided that,’ ‘on condition,’ ‘when,’ ‘so that,’ ‘while,’ ‘as soon as,’ and ‘after’ suggest a conditional intent, not a promise.” Tacoma Northpark, 123 Wn. App. at 80 (quoting Jones Assocs., Inc. v. Eastside Props., Inc., 41 Wn. App. 462, 467,
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704 P.2d 681 (1985)). The terms “subject to” and “contingent upon” also demonstrate an intent to form a condition precedent. Tacoma Northpark, 123 Wn. App. at 80.
Paragraph 14 of the agreement provides:
14. The terms of this arrangement would be put into writing as some amendments or redrafting of prior Declarations would be required. These amendments will be recorded to King County only after Cui new dock extension has been built.
(Emphasis added.)
Paragraph 14 requires that the amendments or redrafting of the prior declarations will be recorded only after Cui and Liu’s dock extension is built. There is no language describing when an easement agreement needs to be drafted or signed or by whom. The agreement states only that a new easement agreement will be recorded after Cui’s dock extension has been built. This is not something that needs to happen before Lin needs to perform other obligations under the agreement. Lin demanded an easement agreement before she would provide the necessary documents for permitting. But she did not have a right to do so under the contract. There is no conditional language such as “only if” or “when” or “subject to.” Therefore, the language of the contract does not demonstrate that there is a condition precedent.
C
Cui and Liu argue that the trial court erred by concluding Lin’s actions and inactions did not amount to breaches of the agreement. Lin asserts the agreement was void when Cui and Liu let the permits expire. Lin also asserts that she did not breach the agreement by asking for clarifications prior to notarizing the agreement.
To establish breach of contract, a plaintiff must show (1) a valid contract, (2) a breach of duty arising out of that contract, and (3) the resulting damage. Silvey v.
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Numerica Credit Union, 23 Wn. App. 2d 535, 544, 519 P.3d 920 (2022). Additionally, “[t]here is in every contract an implied duty of good faith and fair dealing. This duty obligates the parties to cooperate with each other so that each may obtain the full benefit of performance.” Badgett v. Sec. State Bank, 116 Wn.2d 563, 569, 807 P.2d 356 (1991). It compels the parties to a contract to maintain “‘faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.’” Edmonson v. Popchoi, 172 Wn.2d 272, 280, 256 P.3d 1223 (2011) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. a (A.L.I. 1981)).
Material breach is an affirmative defense to a breach of contract claim. Wlasiuk v. Whirlpool Corp., 81 Wn. App. 163, 179, 914 P.2d 102 (1996). If a breach of contract is material, “‘it follows that substantial performance has not been rendered, and further performance by the other party is excused.’” Roosild, 17 Wn. App. 2d at 602-03 (quoting DC Farms, LLC v. Conagra Foods Lamb Weston, Inc., 179 Wn. App. 205, 220, 317 P.3d 543 (2014)). Whether a breach of contract is material is a question of fact. TMT Bear Creek Shopping Ctr., Inc. v. Petco Animal Supplies, Inc., 140 Wn. App. 191, 209, 165 P.3d 1271 (2007).
Paragraphs 13 and 17 of the agreement are important to our review. Paragraph 13 requires that the parties act in good faith:
13. Both parties will fully and in good faith cooperate with each other in the construction of both the Lin and Cui new dock extensions.
And paragraph 17 requires the parties to execute and deliver all necessary documents:
17. The parties hereto shall execute and deliver all documents and provide all information as may be necessary or appropriate to achieve the purposes of this Agreement.
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Cui and Liu, either directly or through their attorney, requested that Lin execute and deliver a notarized copy of the agreement on multiple occasions. The City requested a notarized copy of the agreement to process the permit application. Lin did not provide the requested notarized agreement. Later, Cui and Liu’s attorney attached an e-mail from the City indicating that Lin needed to sign two documents rather than a notarized agreement and stated that time was of the essence. Again, Lin still did not do so. Because the notarized agreement or letter authorization was deemed necessary by the City, it appeared necessary to “achieve the purposes” of the agreement— construction of dock extensions for both parties. It appears that Lin breached paragraph 17.
But paragraph 17 must be read along with paragraph 13—the requirement for good faith performance. Lin asserts that she acted in good faith when she did not provide the necessary documents. Lin explained below:
The only key question for purposes of both parties’ summary judgment motions is: Did Ms. Lin act in bad faith by seeking an updated easement agreement from Plaintiffs before providing her final consent to Plaintiffs[’]
dock construction, where the governing October 25, 2022 Agreement to Construct Dock Extensions (“Agreement”) specifically provided that such an easement agreement be drafted and recorded by the parties?
While, as discussed above, the agreement did not expressly require a new easement be prepared and signed before construction of the Cui and Liu dock extension, whether Lin acted in good faith by requiring the easement before providing authorization is a question of material fact and remains for a factfinder to find after trial. TMT Bear Creek, 140 Wn. App. at 209.
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D
Cui and Liu lastly argue that the trial court erred when it concluded that they were required to continue to pursue permit extensions in light of Lin’s repeated breaches. We agree.
The trial court concluded that Cui and Liu failed to timely apply for a permit extension with the City. Paragraph 14 provides that:
Cui must apply for the Cui new dock extension to the appropriate government authority (in this case the City of Mercer Island) within 2 years after the date of this Agreement and must substantially construct the new dock extension within three (3) years after all required permits are granted/approved. If either of these time requirements are not met, then this agreement will become void and all easements in this Agreement will be of no effect, except for paragraph 4.
(Emphasis added.) The agreement was executed on October 25, 2022. Cui and Liu met the opening requirement of paragraph 14 by applying to the City within 2 years. Nothing in paragraph 14 required Cui and Liu to repeatedly apply for a permit where the original application expired because Lin failed to provide the requested notarized agreement or authorization. The law does not require performance of a futile act. Music v. United Ins. Co. of Am., 59 Wn.2d 765, 769, 370 P.2d 603 (1962). Further, if the trier of fact determines that Lin breached the agreement by not acting in good faith to provide necessary documents, then performance by Cui and Liu might be excused. Roosild, 17 Wn. App. 2d at 602-03. Again, whether any breach was material is a question of fact to be determined after trial. Whether Cui and Liu materially breached paragraph 14 by not continuing to re-apply for permits in light of Lin’s actions is also a question of material fact to be decided after trial. TMT Bear Creek, 140 Wn. App. at 209.
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Because genuine issues of material fact remain, we reverse and remand for trial.
WE CONCUR: