IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TTG, LLC, a Washington limited liability company, No. 83849-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
ROBERT AKHTAR; and GULNOOR JAHAN-AKHTAR, husband and wife,
Appellants,
TED THOMAS and JANE DOE THOMAS, husband and wife; and DUANE SCHOOLEY, husband and wife, d/b/a FIVE STAR FLOORING,
Third Party Defendants.
BIRK, J. — Robert Akhtar and Gulnoor Jahan-Akhtar’s home suffered from
severe fire and smoke damage. The Akhtars contracted with TTG LLC to
commence repair efforts and substantially expand the house. After protracted
disputes over payments, progress on the house, and the Akhtars’ refusal to sign
change orders, TTG terminated its services, recorded a lien against the property,
and filed this action. The superior court awarded TTG damages for work the court
found TTG had performed for which the Akhtars had not paid, together with
prejudgment interest and attorney fees. We remand for recalculation of
prejudgment interest, but otherwise affirm and award attorney fees and costs on
appeal to TTG. No. 83849-1-I/2
I1
In March 2017, a fire caused extensive damage to the Akhtars’ rental
property (House) in Bellevue. The Akhtars had insurance coverage with Safeco
Insurance Company of America. On April 18, 2017, Safeco preliminarily estimated
the total cost of repairs to be $116,006.14. At times during the project, Safeco
issued increased estimates based on items of work not contemplated in its earlier
estimates. The Akhtars had a mortgage through Chase Bank. Safeco paid the
insurance proceeds for repair and restoration to Chase. Chase released funds
based on the percentage of work completed. A Chase inspector reviewed the
percentage of completion of the work done and determined the amount Chase
would disburse.
The Akhtars contacted Ted Thomas, owner of TTG, about performing
repairs. The parties discussed the Akhtars’ desire to construct additions to the
House that would significantly increase its size. In late June 2017, the parties
agreed to have TTG begin demolition to explore the extent of the fire damage.
TTG obtained a permit from the City of Bellevue and removed obviously destroyed
parts of the House. TTG submitted a demolition invoice to the Akhtars for
$13,514.00, which the Akhtars paid in full. TTG discovered additional required
repairs not included in Safeco’s initial estimates.
On July 1, 2017, TTG provided Akhtar with a written proposal, which
included all work itemized on Safeco’s estimate. On July 5, 2017, Akhtar executed
1 We incorporate unchallenged findings of fact which are accepted as true
on appeal. In re Det. of L.S., 23 Wn. App. 2d 672, 686, 517 P.3d 490 (2022).
2 No. 83849-1-I/3
a contract with Thomas’s company IOAP, LLC, to prepare the design for the House
expansion.
Thomas testified his initial repair estimate was $156,104.00. On July 19,
2017, TTG sent a revised estimate, signed and dated by Thomas, to Akhtar for
$137,016.00. Thomas testified he revised the estimate to match Safeco’s then
current estimate being held by Chase. Thomas did not believe the repairs could
be accomplished for that amount, but anticipated further discussion of open line
items with Safeco. In August, TTG sent a letter with the same revised estimate,
again signed by Thomas on behalf of TTG. On or about August 14, 2017, TTG
prepared a proposed written construction agreement (Contract), which listed TTG
as the contractor and a total price of $137,016.00, and e-mailed it to Akhtar. The
contract price equaled Safeco’s then current estimate. Article 5 of the Contract
provided, “All change orders shall be in writing and signed both by Owner and
Contractor, and shall be incorporated in, and become part of the contract.” Article
5 further provided, “Contractor may suspend work on the job until such time as all
payments due have been made. A failure to make payments for a period in excess
of 20 days from the due date of the payment shall be deemed a material breach of
this contract.” While Akhtar never signed the Contract despite telling Thomas he
would, Akhtar’s subsequent actions manifested his assent to the Contract.
After TTG commenced work under the Contract, it again discovered
additional required repairs and code upgrades not included in Safeco’s initial
estimates. In March 2018, Safeco increased its estimate to $185,611.37.
3 No. 83849-1-I/4
On or about April 2, 2018, the parties signed a written amendment
(Amendment) to the Contract. The Amendment increased the Contract price to
$185,000.00. It established a payment schedule pursuant to which the Akhtars
paid TTG $22,500.00. Paragraph 18 of the Amendment permitted the Akhtars to
order additions, deletions or modifications to the work, and the Akhtars agreed to
make corresponding, applicable adjustments to the Contract price and time of
completion. All changes “will be authorized in a written ‘Change Order’ signed by
Owner and Contractor.” TTG would be permitted to recover, among other things,
payment for all work completed.
Per the Amendment’s terms, the parties agreed the Akhtars’ next payment
would become due when the project was at 70 percent completion. On September
6, 2018, the Akhtars paid $45,195.01 for the 70 percent project completion
payment. The Akhtars’ payments to TTG totaled $130,044.46. The final payment
was due on completion.
The Akhtars requested TTG perform additional work outside the scope of
the Contract and Amendment. The scope of the work and TTG’s pricing for the
Akhtars’ requests were generally described in six change orders. TTG asked
Akhtar to sign the change orders, but he never did and instead stated that he
wanted to sort them out after TTG completed all of its work on the project.
TTG attributed project delays to the time it took the City of Bellevue to
provide permitting, the Akhtars’ changing intentions for the scope of work, and a
setback issue that arose when Akhtar mistook the location of his lot line, among
other things. TTG viewed certain change orders as impacting the ability to proceed
4 No. 83849-1-I/5
with the project. TTG declined to do additional work and work out payment terms
only later.
TTG ceased its project work in April 2019. That month, Chase’s inspector
valued the total loss amount at $205,798.08. Chase’s inspector estimated the
work was 45 percent complete. TTG estimated the work was at least
approximately 70 percent complete. On April 9, 2019, TTG recorded a claim of
lien pursuant to chapter 60.04 RCW against the property.
On May 23, 2019, TTG filed a lawsuit against the Akhtars alleging breach
of contract and requesting foreclosure of its lien. The Akhtars pleaded affirmative
defenses, added Thomas and another party as third party defendants, and
counterclaimed for breach of contract and violations of the Washington Consumer
Protection Act, chapter 19.86 RCW. The Akhtars later added several affirmative
defenses and a counterclaim for fraud.
Following a bench trial, the superior court found in favor of TTG and against
the Akhtars. TTG’s further performance was deemed excused by the Akhtars’
refusal to sign the change orders. The court calculated the Akhtars owed TTG
$14,014.20, which was determined by taking 70 percent of $205,798.08 and
subtracting the Akhtars’ payments. The court awarded TTG prejudgment interest,
reasonable attorney fees, and a decree of foreclosure. The court rejected the
Akhtars’ counterclaims, but ordered TTG to return appliances that the Akhtars had
purchased and TTG had stored and later withheld. The court entered final
judgment in the amount of $52,466.14. The Akhtars appeal.
5 No. 83849-1-I/6
II
A
We first consider the Akhtars’ challenge to several findings of fact
concerning their failure to execute change orders. Findings of fact are reviewed
for substantial evidence. Real Carriage Door Co., Inc. ex. rel. Rees v. Rees, 17
Wn. App. 2d 449, 457, 486 P.3d 955, review denied, 198 Wn.2d 1025, 497 P.3d
394 (2021). Substantial evidence is evidence sufficient to persuade a fair-minded,
rational person of the truth of the finding. Holland v. Boeing Co., 90 Wn.2d 384,
390-91, 583 P.2d 621 (1978). On substantial evidence review, all evidence is
construed in favor of the prevailing party. Mangan v. Lamar, 18 Wn. App. 2d 93,
95, 496 P.3d 1213 (2021). We do not review the trial court’s credibility
determinations on appeal. Columbia State Bank v. Invicta Law Grp. PLLC, 199
Wn. App. 306, 319, 402 P.3d 330 (2017).
The Akhtars challenge the findings to the effect the Contract required them
to sign written change orders. The crux of their argument rests on a challenge to
findings of fact 17 and 21, which stated,
17. The original contract (Exhibit 1) and the Amended Contract (Exhibit 2) both required that change orders be signed by both Mr. Thomas (or TTG) and the Akhtars. Paragraph 18 of the Amendment required this by stating: “All changes will be authorized in a written “Change Order” signed by Owner and Contractor, which shall be incorporated by reference herein.” Article 5 of the original contract, Exhibit 1, also required that any changes to the scope of work be signed when it specified that any changes in the scope of work be done “only upon written order for the same, signed by Owner and Contractor.”
....
6 No. 83849-1-I/7
21. Mr. Akhtar did not sign any of the Change Orders though, and instead stated that he wanted to sort them out after TTG completed all of its work on the project. Mr. Akhtar’s position was not supported by the terms of the Amendment. The Akhtars’ wrongful refusal to sign any of TTG’s Change Orders was a material breach of the Amendment and the Contract and excused TTG from performing any further work on the Akhtars’ project.
The Akhtars challenge aspects of other findings. Finding of fact 20 states TTG
performed “almost all of the work identified in TTG’s Change Orders.” Finding of
fact 27 states the court found the Contract required the parties to execute change
orders “to address any issues in the project,” and the Akhtars could not defer
executing change orders in “ ‘good faith’ ” until after the project’s completion.
Substantial evidence supports the superior court’s findings that the Akhtars
refused to execute written change orders and that their failure to do so was not
consistent with the Contract. Article 5 of the Contract referenced in finding of fact
17 indicated that following a written change order, “if there is any charge for such
alteration or deviation, the additional charge will be added to the contract price
. . . . If payment is not made when due, Contractor may suspend work.” The
Contract permitted the Akhtars to order changes to the work, provided they agreed
to make corresponding, applicable adjustments to the price and time of completion.
Changes were to be memorialized “in a written ‘Change Order’ signed by Owner
and Contractor.” In several e-mails from February and March 2019, Thomas sent
Akhtar the change orders stating, “We need to get these signed and 50 percent
payment [as soon as possible],” and “[t]here is payment required to make all of this
happen.” Thomas disputed the Akhtars’ claims that the work items outlined in the
change orders were already contemplated in the Contract or Amendment, and
7 No. 83849-1-I/8
noted their proposal to analyze the change orders on a need basis “will continue
to delay construction completion as noted in the change Orders as previously
submitted” and “[t]he Change Orders are to be executed and a partial payment
made know [sic] before any further work progress’s [sic].”
The contractual provisions for change orders to be in writing, and permitting
TTG to suspend work in case of nonpayment, support the superior court’s finding
of fact 17 that TTG was entitled to require that changes to the work be established
in written change orders with agreed adjustments to price. They further support
the portion of finding of fact 27 that notes TTG was not required to acquiesce to
the Akhtars’ stated preference to agree on a price adjustment only after TTG’s
completion of the work, and that the Akhtars’ position in this regard “was not
supported by the terms of the Amendment.”
B
The Akhtars challenge the superior court’s conclusion of law 4 that “[t]he
Akhtars breached the Contract and the Amendment by refusing to sign TTG’s
Change Orders,” and that TTG’s further performance was excused by their failure
to do so. Where findings of fact after a bench trial are supported by substantial
evidence, we consider whether they support the trial court’s conclusions of law.
Real Carriage Door, 17 Wn. App. 2d at 457. The Akhtars argue they did not agree
to change the Contract, and their failure to sign change orders with which they did
not agree was not a breach. We agree with the superior court, however, their
refusal to execute written change orders with agreed price adjustments excused
TTG’s further performance.
8 No. 83849-1-I/9
In an analogous case, a prime contractor sought a contract modification
with CKP, its grading subcontractor, based on revised grading plans which “would
have required virtually all of the installed utilities to be adjusted.” CKP, Inc. v. GRS
Const. Co., 63 Wn. App. 601, 605, 821 P.2d 63 (1991). When the prime contractor
and CKP were unable to agree on change orders, the prime contractor “threatened
to withhold payment unless CKP agreed to terms it proposed.” Id. CKP did not
agree and terminated its work. Id. We held the prime contractor repudiated the
contract, excusing CKP’s further performance. Id. at 620. We explained the rule:
Repudiation of a contract by one party may be treated by the other as a breach which will excuse the other’s performance. Whether facts have been established showing repudiation is a question for the finder of fact. An intent to repudiate may be expressly asserted or circumstantially manifested by conduct. Hemisphere Loggers & Contractors, Inc. v. Everett Plywood Corp., 7 Wn. App. 232, 234, 499 P.2d 85, review denied, 81 Wn.2d 1007 (1972). An anticipatory breach occurs when one of the parties to a bilateral contract either expressly or impliedly repudiates the contract prior to the time for performance. The law requires a positive statement or action indicating distinctly and unequivocally that the repudiating party will not substantially perform his contractual obligations. Lovric v. Dunatov, 18 Wn. App. 274, 282, 567 P.2d 678 (1977).
Id. We held CKP was justified in terminating its work because the prime contractor
had “repeatedly threatened to withhold payment from CKP unless it signed
contract modification 2,” and this “was a repudiation” and “an anticipatory breach”
of the contract. Id.
Here, the superior court’s unchallenged findings as well as those we have
found supported by substantial evidence establish the Akhtars requested TTG to
perform additional work not within the scope of the Contract. TTG’s pricing for this
9 No. 83849-1-I/10
work was described in the six change orders, and the Contract called for change
orders to be memorialized in writing. This would incorporate change orders into
the Contract, and bring them within the other established contractual terms,
relevant here the Akhtars’ duty to make timely payment and TTG’s right to cease
working if they did not do so. The Akhtars did not sign the change orders,
expressing a preference to settle after TTG had completed the work. Like the
prime contractor’s refusal to pay in CKP, the Akhtars’ refusal to sign the change
orders was a refusal to agree to TTG’s pricing and terms. The findings support the
superior court’s conclusion of law 4 that “TTG’s performance under [the] Contract
and Amendment was excused by the Akhtars’ refusal to sign the Change Orders.”
III
The Akhtars further challenge the superior court’s calculation of the amount
due to TTG, and its award of prejudgment interest.
Finding of fact 19 states that by September 2018, the project had reached
70 percent completion. Finding of fact 20 states TTG performed almost all of the
work identified in TTG’s change orders. Finding of fact 22 states the mortgage
lender’s inspector valued the total loss at $205,798.08. It states further that based
on the parties’ having had the intent to match Safeco’s total loss amount, the “total
contract price” including all change orders totaled $205,798.08.
Thomas testified TTG performed 70.5 to 71 percent of the work on the
contract line items, and “[a]pproximately 75 to 80 percent” of work under change
orders 1-6. Exhibit 113 is the mortgage lender’s inspection report that estimated
10 No. 83849-1-I/11
the total loss amount to be $205,798.08 and approximated the work done to total
45 percent. Although the superior court cited Exhibit 113 to conclude the
aggregate contract value including all change orders totaled $205,798.08, that did
not also require the superior court to accept its statement TTG completed 45
percent of the project. Substantial evidence supports the superior court’s findings
concerning the percentage of the work completed and the value of the work.
These findings support the superior court’s calculation of the amount due to
TTG. Given the total value of the work of $205,798.08, and given TTG’s
completion of 70 percent of the work, the value of TTG’s work was $144,058.66.
After crediting the Akhtars’ total payments of $130,044.46, the superior court
concluded the amount due to TTG was $14,014.20. The superior court’s
conclusion of law 3 is supported by the findings of fact. The Akhtars argue that the
superior court was obligated to calculate TTG’s damages based on valuing
allegedly incomplete line items in Safeco’s final estimate. They base this argument
on contract terms contemplating that the parties would use Safeco’s line items for
pricing and for adjustments in the event of the work deviating from those line items.
The measure of the money damages remedy for breach of contract is
designed to give the non-breaching party “ ‘the benefit of [the] bargain’ ” by
awarding a sum of money that will, to the extent possible, put the non-breaching
party “ ‘in as good a position as [it] would have been in had the contract been
performed.’ ” Eastlake Const. Co., Inc. v. Hess, 102 Wn.2d 30, 46, 686 P.2d 465
(1984) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 347 cmt. a, at 112
(1981)). In case of a construction contract, this can be measured in more than one
11 No. 83849-1-I/12
way, one of which is “ ‘the difference between the values to [the non-breaching
party] of the finished and the unfinished performance.’ ” Id.at 47 (quoting
RESTATEMENT (SECOND) OF CONTRACTS § 347 cmt. c, at 121). The superior court’s
determination of damages was appropriate.
Under conclusion of law 5, the superior court awarded prejudgment interest
from April 9, 2019, the date of TTG’s lien. We reverse this award in part, because
only a portion of the superior court’s damages award was liquidated. Prejudgment
interest is available only when a claim is “liquidated,” which means the claim is in
an amount capable of determination without opinion or discretion. Austin v. U.S.
Bank of Wash., 73 Wn. App. 293, 312-13, 869 P.2d 404 (1994). When a contract
provides for a fixed price, a claim on the contract is liquidated notwithstanding a
dispute about the percentage of completion. CKP, 63 Wn. App. at 614. Here, the
parties agreed on a contract price of $185,000 for the original scope of work, and
this amount is liquidated.
However, the parties never agreed on a price for the change order work,
and the superior court’s findings refer to the pricing stated in the change orders
only as “TTG’s pricing.” As stated in CKP, items “reduced to definite sums in
contract modification orders signed by both parties . . . represent liquidated
amounts to which prejudgment interest may be applied.” 63 Wn. App. at 617. In
contrast, for “extra work . . . not reduced to written contract modifications executed
by both parties,” but rather “proved by testimony, job diaries, and other such
documents,” recovery is in quantum meruit. Id. CKP relied on Modern Builders,
12 No. 83849-1-I/13
Inc. of Tacoma v. Manke, 27 Wn. App. 86, 91, 93-95, 615 P.2d 1332 (1980), in
which we held the proper measure of damages for “extra work” incurred outside
an express contract is a quantum meruit recovery for costs and a reasonable profit.
“Quantum meruit may substitute for the contract price and form the basis of total
recovery only when substantial changes occur as work progresses which are not
covered by the original contract and which were not within the contemplation of the
parties when the contract was formed.” Id. at 93-94. Changes and modifications
agreed to by the parties may be recovered in quantum meruit in addition to the
contract price if that work qualifies as “extra work” arising outside and independent
of the contract. Id. at 95.
Quantum meruit awards are unliquidated and may not be the basis of an
award of prejudgment interest. CKP, 63 Wn. App. at 615. In Manke, the court
held the trial court erred by awarding prejudgment interest because “prejudgment
interest may not be awarded when a labor and materialmen’s lien is set by
quantum meruit.” 27 Wn. App. at 96. In CKP, also, the court held the trial court
erred in awarding prejudgment interest on unliquidated quantum meruit recovery.
63 Wn. App. at 618. Accordingly, to the extent the superior court’s damages
award, which we affirm, represented compensation for work within the scope of
the contract, the award is liquidated and the award of prejudgment interest was
appropriate. To the extent the damages award represented compensation for work
within the scope of the unsigned change orders, the award was unliquidated and
the award of prejudgment interest was error.
13 No. 83849-1-I/14
The superior court’s running interest from the date of the lien was
appropriate. TTG did not prove, and the superior court did not find, a date by which
payment was due either for the unfinished contract work or the change order work.
The Contract and Amendment terms are inconclusive on that point, in that they in
some cases suggest payment was due within 20 days of billing, and in other cases
pursuant to a payment schedule, the final payment of which never came due
because completion was not reached. Authority supports that in the absence of
proof of an earlier payment date, interest runs from the date of a valid lien. See
Shelcon Constr. Grp., LLC v. Haymond, 187 Wn. App. 878, 896, 351 P.3d 895
(2015). By the time of TTG’s lien, it had performed the work at issue, and the
Akhtars had by their actions excused TTG’s further performance. In these
circumstances, interest on liquidated amounts was appropriately run from the date
of the lien.
IV
Both parties request reasonable attorney fees and costs on appeal. The
Amendment contains an attorney fees provision, which provides, “If either Party
brings legal action to enforce its rights under this Amendment, the prevailing party
will be entitled to recover from the other Party its expenses (including reasonable
attorneys’ fees and costs) incurred in connection with the action and any appeal.”
Too, RCW 60.04.181(3) authorizes courts to allow the prevailing party in a
construction lien action, “the moneys paid for . . . attorneys’ fees and necessary
expenses incurred by the attorney in the superior court[ or] court of appeals” as
the court deems reasonable. We grant TTG’s request for its reasonable attorney
14 No. 83849-1-I/15
fees and costs on appeal under the contract and RCW 60.04.181(3), and we deny
the Akhtars’ request for its reasonable attorney fees. TTG is further award
statutory costs under RAP 14.2.
We reverse in part and remand solely on the issue of segregating that part
of the damage award on which prejudgment interest is allowed from that part on
which such interest is not allowed, as set forth in this opinion, and for recalculation
of prejudgment interest accordingly. We otherwise affirm.
WE CONCUR: