                                                      FILED
                                                  OCTOBER 1, 2015
                                             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

NINA M. FlREY, a single woman,          )
                                        )      No. 33232-2-111
                     Appellant,         )
                                        )
               v.                       )
                                        )
NICOLAS SA OROZCO and MIGUEL            )
OROZCO, wife and husband and the        )
marital community composed thereof,     )
d/b/a OROZCO CONSTRUCTION; and          )
UNITED STATES FIRE INSURANCE            )
COMPANY; CHRISTOPHER COOK and )
"JANE DOE" COOK, husband and wife       )
and the marital community composed      }      UNPUBLISHED OPINION
thereof; ALBERT OTTERNESS and           )
"JANE DOE" OTTERNESS, husband and )
wife and the marital community composed )
thereof, d/b/a AOK CONSTRUCTION,        )
and AMERICAN CONTRACTORS                )
INDEMNITY COMPANY,                      )
                                        )
                     Defendants,        )
                                        )
TAMMIE MYERS and RON MYERS,             )
husband and wife, and the marital       )
community composed thereof;             )
KENNETH BANNISTER and DORIS             )
BANNISTER, husband and wife and the     )
marital community composed thereof;     )
No. 33232-2-III
Firey v. Orozco


K & T CONSTRUCTION, a partnership;             )
STATE FARM FIRE & CASUALTY,                    )
MICHAEL F. LYON and JOAN D.                    )
LYON, husband and wife and the marital         )
community composed thereof, d/bla              )
CROWN MOBILE HOME SET -UP/SVC;                 )
RLI INSURANCE COMPANY,                         )
                                               )
                     Respondents,              )

       LAWRENCE-BERREY, J. -        We are asked to decide whether the trial court properly

granted summary judgment to K&T Construction and Crown Mobile Homes. In this

lawsuit, Nina Firey claims breach of contract against the first five of several contractors

she hired to make livable a house that she purchased from a foreclosure sale. The central

issue on appeal is whether the trial court erred in determining that the opinions of Ms.

Firey's two experts lacked a sufficient factual basis to withstand summary judgment. We

hold that the trial court did not err and affirm the summary judgment dismissals.

                                          FACTS

       Nina Firey purchased a vacant, foreclosed home in Centralia, Washington, in

2011. The purchase price was $75,000. The home was in significant disrepair. Ms.

Firey obtained a prepurchase home inspection that revealed a number of issues that

needed to be addressed to rehabilitate the home. Ms. Firey had a budget of $25,000 to

complete the necessary repairs.

      Ms. Firey first hired K&T Construction to perform work on the home. K&T

Construction is owned by Kenneth Bannister. Mr. Bannister said he would work for an

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No. 33232-2-III
Firey v. Orozco


hourly rate plus cost of materials. Invoices submitted for each week's work show that

K&T Construction worked on the house during the latter half of May 2011. Ms. Firey

fired K&T Construction because she believed its hourly rate of $1 00 was excessive.

       After firing K&T Construction, Ms. Firey hired Michael Lyon, d/b/a Crown

Mobile Homes Set-Up, on a time and materials basis. Crown Mobile did not have a

written contract identifYing the scope of work to be performed, nor were there written

estimates, quotes, plans, or specifications. With the exception of the final contractor,

none of the contractors who worked on Ms. Firey's house had written contracts, plans,

bids, or estimates. Crown Mobile worked on the project for approximately 10 days in

late May and June 2011. It charged Ms. Firey $6,540. Crown Mobile persuaded Ms.

Firey that it was too busy to continue the project and assisted Ms. Firey in hiring her third

contractor.

       Over the next few months, Ms. Firey went through several other contractors and a

friend to continue repairs to the house. I In August or September 2011, Ms. Firey hired

her last contractor, Bar-None Construction.

       Bar-None began a series of repairs. Eventually, Bar-None advised Ms. Firey that

additional repairs should not be done until the house was re-Ieveled. Ms. Firey directed



       Respondents contend that Ms. Firey hired a total of 12 contractors. The record
       I
shows at least 10 contractors worked on the project, but we are unable to determine how
many contractors performed general repairs and how many performed specific projects.

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No. 33232-2-III
Firey v. Orozco


Bar-None to re-Ievel the house. This caused structural damage throughout the house,

requiring Bar-None to repair some of its own work in the process. Around February

2012, Bar-None prepared a scope of work document, setting forth the work it had

performed, the amounts charged, and the scope and charges to complete necessary

repairs. The total cost of completed and remaining repairs exceeded $100,000.

       In July 2012, Ms. Firey filed a single complaint against the first five contractors

and their insurance companies. She asserted a breach of contract claim against the

contractors. Ms. Firey settled with two of the contractors. This action proceeded against

K&T Construction and Crown Mobile and their respective insurance companies. The

remaining contractor is not a party to this appeal.

       K&T Construction and Crown Mobile filed separate summary judgment motions.

Each construction company presented its own argument and documents to support its

motion. The trial court reviewed the summary judgment motions independently from

each other.

       K&T Construction. In its summary judgment motion, K&T Construction argued

that Ms. Firey could not bring a claim for breach of contract based on work not

performed or left uncompleted because she terminated the contract when she fired it and

would not let it finish the project.

       Attached to K&T Construction's summary judgment motion were portions of Ms.

Firey's deposition. In her deposition, Ms. Firey admitted that she was paying K&T

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No. 33232-2-III
Firey v. Orozco


Construction an hourly rate for the time that it spent working on the home and that she

kept track of its hours. As for the scope of the project, Ms. Firey told K&T Construction

that she had a very limited budget of$25,000 and wanted a "fully functional house."

Clerk's Papers (CP) at 52. In her deposition, Ms. Firey stated that she did not tell K&T

what work to perform, except not to touch the front porch. When asked if there were

other terms discussed between her and K&T Construction, Ms. Firey responded, "There

were probably little things here and there, but not on the big picture, no." CP at 52. She

also stated that she fired K&T Construction because she was angry about the hourly rate

she was paying. Later in her deposition, she explained that after she fired K&T

Construction, she noticed workmanship problems.

       In a declaration submitted after her deposition, Ms. Firey said that she compiled a

list of projects that she wanted completed, but did not direct how the work would be

performed. There is no indication that she provided her list to K&T Construction. Ms.

Firey said in her declaration that she was concerned that the work was not being done

properly, "including electrical and plumbing work that [Ms. Firey] later realized K&T

was not authorized to do." CP at 302. She said that K&T Construction damaged existing

structures, including the front porch and kitchen cabinets.

       Curiously, the name of the second contractor, "Crown," appears on this list. The

list contains dates by some of the projects, but the dates do not correspond with K&T

Construction's work on the house. For example, K&T Construction's last invoice was

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No. 33232-2-III
Firey v. Orozco


dated June 3, 2011, whereas the dates on Ms. Firey's list start with June 16,2011. Ms.

Firey checked off some of the projects as completed, but did not attribute the work to any

particular contractor. There was no other evidence to establish the scope of K&T

Construction's work on Ms. Firey's home.

       Ms. Firey retained expert Vincent McClure, who created a report that estimated

the cost impacts to the Firey house caused by the various contractors who worked on the

project. In addition, he filed a supplementary declaration to his report to detail the scope

of the work done by each contractor and to identifY the repairs necessitated by each of the

various contractors. Mr. McClure based his report on his visits to the house on

September 20,2012, and July 24, 2013, and on materials provided by Ms. Firey,

including undated photographs she took of the house and her defect list. He also

reviewed various statements and declarations in the record, the home inspection report

written before construction started, and the Lewis County Building Department file.

      Mr. McClure's initial report noted that he first observed the house after the

leveling was completed by the twelfth contractor. This would have been several months

after K&T Construction and Crown Mobile ceased working on the project, and after

several other contractors made repairs and alterations. Mr. McClure noted 16 areas

where he viewed defects andlor code violations. He attributed some of the violations to

the work of Orozco Construction and AOK Construction. However, other subsections

contained general observations and/or defects regarding the proper installation and

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No. 33232-2-III
Firey v. Orozco


placement of windows, defects in the waterproofing, flooring levels, attic rafters,

connection of the shed roof to the house, and more. Mr. McClure concludes "Much of

the work done by K&T Construction, Crown Mobile, Orozco Construction, Chris Cook,

and AOK Construction is grossly below the standards of the industry and is unacceptable.

The exterior wall siding, the building wrap, the windows, some of the roofing, the floor

underlayment, and all of the other items discussed above are unacceptable and need to be

removed and replaced or, in a few cases, repaired." CP at 20.

       In his supplemental declaration, Mr. McClure sought to detail the defective work

completed by each defendant contractor. For K&T Construction, Mr. McClure listed 13

instances of work that was defective or completed in the wrong order. For example, he

stated that K&T Construction: "Failed to obtain permits and did both electrical and

plumbing work with out proper state licenses," "Attempted to level one comer of the

kitchen after installing the kitchen window," "Failed to remove and replace dry rotted

wood before attempting to level the kitchen. As a result, most of their leveling efforts

were ineffective," "[I]nstalled underlayment over rotted and moldy floor. Ms. Firey is

allergic to mold. Also, covering moldy floor and rotted wood just hides the problem and

leads to future problems," plus more. CP at 7-8. Mr. McClure did not claim to have

personal knowledge of these defects.

      In addition to Mr. McClure's declarations, Ms. Firey also presented two,

declarations from Mr. Hamilton of Bar-None, who was the last contractor to perform

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No. 33232-2-111
Firey v. Orozco


work on the home. Mr. Hamilton maintained that part of his work on the home included

repairing work of the prior contractors. He maintained that the repairs were needed due

to defective work and due to the damage caused by the re-Ieveling. However, Mr.

Hamilton's declaration did not document specific defects. Nor did he identify work

attributed to any specific defendant.

       Crown Mobile. Crown Mobile contended on summary judgment that Ms. Firey

did not and could not produce evidence that Crown Mobile failed to complete the work

under the time and materials contract. Crown Mobile maintained that Ms. Firey could

not produce evidence of defective work because the majority of the work was demolished

or replaced. "This litigation has been going on for over a year and [Ms. Firey] has yet to

furnish any documentary, photographic or physical evidence to support the elements of

her breach of contract claim." CP at 73-74. Crown contended that Ms. Firey's approach

to the remodel was flawed from the outset and caused the problems that she was

imposing on the defendant contractors.

       Mr. Lyon stated in his declaration in support of summary judgment that the bulk

of Crown Mobile's work consisted of digging out the foundation by hand to create a

crawl space and hauling away the dirt and debris. He said Crown Mobile also removed

wall coverings, installed some insulation in the crawl space and attic, and built a closet

around the hot water heater. Mr. Lyon maintained that all of Crown Mobile's work was

completed at the direction of Ms. Firey. He also maintained that Crown Mobile did not

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No. 33232-2-III
Firey v. Orozco


install any underlayment for flooring, did not do electrical work, and did not work on

plumbing. Mr. Lyon maintained that had his company performed electrical and

plumbing, he would have charged Ms. Firey for the work, and the work would have

appeared on its invoices.

       Crown Mobile also submitted a declaration from Construction Dispute Resolution

Vice President Bryce Given. Mr. Given stated that he visited Ms. Firey's home and

reviewed the record associated with the case. He found that none of Ms. Firey's experts

or other evidence identified work performed by Crown Mobile that was allegedly

defective, especially considering that both of Ms. Firey's experts admit that Crown

Mobile's work was altered. As such, Mr. Bryce opined that it was impossible to

conclude Crown Mobile caused any of the damage claimed by Ms. Firey.

       Mr. McClure's and Mr. Hamilton's declarations were not specific to anyone

defendant. The same declarations applied to K&T Construction as well as Crown

Mobile. As stated, Mr. McClure's initial report made general observations on defects.

He made no connection between the work Ms. Firey contended that Crown Mobile

completed and the defects identified by Mr. McClure.

       In his second declaration, Mr. McClure stated that Crown Mobile "[i]mproperly

leveled the house; the house wasn't level when they quit," "improperly installed

insulation in the attic," "failed [t]o replace the insulation and sheetrock they removed on

the second floor," "replaced hot water heater installed by K&T [and] failed to meet the

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No. 33232-2-III
Firey v. Orozco


various code requirements," "installed flooring in the utility room and then ripped it when

installing the washer," plus other allegations, totaling eight defects. CP at 8. He did not

claim to have personal knowledge of what Crown Mobile did on the project.

       Mr. Hamilton's declarations provided the same information for Crown Mobile as

for K&T Construction. Mr. Hamilton's declarations did not document specific defects or

identify work attributed to an individual defendant. However, Crown Mobile presented

an additional letter from Mr. Hamilton filed early in the litigation. In this letter, Mr.

Hamilton stated that he could not say who did which incorrect work.

       Based on the evidence presented on each motion, the trial court granted both K&T

Construction's and Crown Mobile's motions for summary judgment. The trial court

considered the declarations from Mr. McClure and Mr. Hamilton, but concluded that

these declarations relied on impermissible hearsay from Ms. Firey as to what work was

done by whom and whether proper construction techniques were used. The trial court

reasoned that Ms. Firey was not qualified to determine whether the work that was

destroyed was defective, so the experts could not rely on Ms. Firey's statements to form a

conclusion. In granting summary judgment, the court concluded that there was no

admissible evidence as to the work the first and second contractors performed and

whether it was defective because the actual evidence was either destroyed by subsequent

contractors or was not preserved. The court also concluded that Ms. Firey could not

bring a claim for unjust enrichment.

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No. 33232-2-III
Firey v. Orozco


       Ms. Firey appeals. She contends that the trial court erred in granting summary

judgment because a genuine issue of material fact remains as to whether K&T

Construction and Crown Mobile breached their contracts to repair her home. She also

contends that the trial court prematurely dismissed her unjust enrichment claim.

                                        ANALYSIS

1. 	    Whether Ms. Firey presented material facts sufficient to withstand summary
       judgment against the first and second contractors

       Summary judgment orders are reviewed de novo on appeal. Vallandigham v.

Clover Park Sch. Dist. No. 400, 154 Wn.2d 16,26, 109 PJd 805 (2005). When

reviewing a summary judgment order, the appellate court engages in the same inquiry as

the trial court. Summary judgment is proper only if the pleadings, depositions, answers,

and admissions, together with the affidavits, show that there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter oflaw. CR 56(c).

The court must consider the facts and all reasonable inferences therefrom in the light

most favorable to the nonmoving party, and the motion should be granted only if

reasonable persons could reach but one conclusion from all the evidence. Bozung v.

Condo. Builders, Inc., 42 Wn. App. 442, 445,711 P.2d 1090 (1985). Once the moving

party has met its burden of presenting factual evidence showing that it is entitled to

judgment as a matter of law, the burden shifts to the nonmoving party to set forth specific

facts showing that a genuine issue exists for trial. Graves v. P.J. Taggares Co., 94 Wn.2d



                                             11 

No. 33232-2-III
Firey v. Orozco


298,302,616 P.2d 1223 (1980) (quoting LaPlante v. State, 85 Wn.2d 154, 158,531 P.2d

299 (1975».

       "A material fact is one upon which the outcome of the litigation depends in whole

or in part." Atherton Condo. Apartment-Owners Ass 'n Bd. ofDirs. v. Blume Dev. Co.,

115 Wn.2d 506, 516, 799 P.2d 250 (1990). The facts presented must be more than

speculative and argumentative assertions. Adams v. King County, 164 Wn.2d 640, 647,

192 PJd 891 (2008). A party may not rely on allegations, denials, opinions, or

conclusory statements, but must set forth specific material facts for trial. Int'l Ultimate,

Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 744, 87 PJd 774 (2004).

       "Supporting and opposing affidavits shall be made on personal knowledge, shall

set forth such facts as would be admissible in evidence, and shall show affirmatively that

the affiant is competent to testifY to the matters stated therein." CR 56(e). While the

party who moves for summary judgment bears the burden of showing that there is no

genuine issue of material fact, once he has so done, the other party cannot rely on

pleadings that are unsupported by evidentiary facts. State v. Yard Birds, Inc., 9 Wn. App.

514,520,513 P.2d 1030 (1973) (quoting Taif v. KING Broad. Co., 1 Wn. App. 250,255,

460 P.2d 307 (1969».

      Ms. Firey contends that the trial court erred in granting summary judgment to

K&T Construction and Crown Mobile because a genuine issue of material fact remained

on the breach and damages elements of her breach of contract claims. Ms. Firey

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No. 33232-2-II1
Firey v. Orozco


maintains that the declarations of Mr. McClure and Mr. Hamilton provide a basis to

conclude that the work ofK&T Construction and Crown Mobile was defective. Ms.

Firey also maintains that the trial court erred by disregarding these declarations when Mr.

McClure and Mr. Hamilton had a factual basis for their opinions.

       To prevail on a breach of contract claim, a plaintiff must establish (1) the

existence ofa contractual duty, (2) defendant's breach of that duty, and (3) the

defendant's breach of that duty caused damages to the plaintiff whom the duty is owed.

Nw.Indep. Forest Mfrs. v. Dep't ofLabor & Indus., 78 Wn. App. 707, 712,899 P.2d 6

(1995).

       Here, Ms. Firey argues that both defendants breached their contractual duties by

not performing the work in "a workmanlike and professional manner." CP at 302. She

asserts that they each promised her that they would perform work at this standard. She

also asserts numerous aspects ofK&T Construction's work which were deficient. She

does not state that any of Crown Mobile's work was deficient. Rather, she simply states:

"After working for a short period of time, [Crown Mobile] informed me that [its]

schedule was too busy, and [it] could no longer dedicate time on my project. At the

insistence of [Crown Mobile], Orozco Construction took over the scope of work."

CP at 303.

      It is well settled that a party resisting summary judgment cannot create a genuine

issue of material fact by contradicting clear deposition answers. In re Kelly, 170 Wn.

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No. 33232-2-111
Firey v. Orozco


App. 722, 738,287 PJd 12 (2012). Here, Ms. Firey's claim that K&T promised to

perform its work in a "workmanlike and professional manner" contradicts her clear

deposition answers where she described her agreement with K&T Construction as time

and materials and to make the house livable for $25,000; she denied any further material

terms.

         As for her claim that K&T Construction's work was deficient, Ms. Firey provides

no foundational basis for which to offer such an opinion. ER 703. The trial court

properly ruled that Ms. Firey lacked the proper foundation to provide such technical

opmlOns.

         We now turn to the declarations of Ms. Firey's two experts, Mr. Hamilton and Mr.

McClure. "In general, an affidavit containing admissible expert opinion on an ultimate

issue of fact is sufficient to create a genuine issue as to that fact, precluding summary

judgment." J.N v. Bellingham Sch. Dist. No. 501,74 Wn. App. 49, 60-61,871 P.2d 1106

(1994). However, an expert opinion that is only a conclusion or that is based on

assumptions does not satisfy the summary judgment standard. John Doe v. Puget Sound

Blood Ctr., 117 Wn.2d 772,787, 819 P.2d 370 (1991). "Expert opinions must be based

on the facts of the case and will be disregarded entirely where the factual basis for the

opinion is found to be inadequate." Hash v. Children's Orthopedic Hosp. & Med. Ctr.,

49 Wn. App. 130, 135,741 P.2d 584 (1987), ajJ'd, 110 Wn.2d 912,757 P.2d 507 (1988).




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No. 33232-2-111
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"In the context of a summary judgment motion, an expert must back up his or her opinion

with specific facts." Id.

       A qualified expert can testify to his or her opinion if the scientific, technical, or

other specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact at issue. ER 702. "The facts or data in the particular case upon which

an expert bases an opinion or inference may be those perceived by or made known to the

expert at or before the hearing. If of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences upon the subject, the facts or data need

not be admissible in evidence." ER 703.

       While under ER 703, an expert can rely on inadmissible facts for the limited

purpose of explaining the basis for an opinion, those facts cannot be considered as

substantive evidence. See Allen v. Asbestos Corp., 138 Wn. App. 564, 581, 157 P.3d 406

(2007).   4"   [I]f an expert states the ground upon which his opinion is based, his

explanation is not proof of the facts which he says he took into consideration. His

explanation merely discloses the basis of his opinion in substantially the same manner as

ifhe had answered a hypothetical question.'" Allen, 138 Wn. App. at 579-80 (alteration

in original) (citation and internal quotation marks omitted) (quoting Group Health Coop.

ofPuget Sound, Inc. v. Dep't ofRevenue, 106 Wn.2d 391,399-400,722 P.2d 787

(1986».




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No. 33232-2-II1
Firey v. Orozco


       In Miller v. Likins, 109 Wn. App. 140, 149,34 P.3d 835 (2001), an accident

reconstructionist offered an opinion that Patricia Miller's minor son was on the shoulder

of the road when he was struck by Ralph Likins's car. The expert admitted that there was

no physical evidence to establish the location of the victim when the impact occurred and

that he did not perform a quantitative analysis to support his version of the facts of the

accident. Id. In affirming the trial court's summary judgment dismissal, the Miller court

agreed with the trial court that the expert's opinion was speculative and lacked an

adequate factual basis. Id. 2

       Here, the trial court considered the experts' declarations, but determined that the

facts underlying the opinions were too speculative and therefore the opinions were

insufficient to create a genuine issue of material fact. We agree. There is a central

deficiency in these experts' declarations: It is obvious that both experts rely on the

undocumented recollections of Ms. Firey as to the scope of work performed by each

defendant and the resulting condition of the house after each defendant ceased its work.

Neither expert saw the house immediately after Ms. Firey fired K&T Construction or

after Crown Mobile ceased working. The pictures supposedly supporting their opinions

are undated. The inadequacies of the two experts' factual foundations are further


       2The Miller court also held that its review of the trial court's evidentiary ruling
was an abuse of discretion. To this extent, we disagree with Miller. The proper standard
of review of summary judgment evidentiary rulings is de novo. See Keck v. Collins, 181
Wn. App. 67, 80,325 P.3d 306, review granted, 181 Wn.2d 1007,335 P.3d 941 (2014).

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No. 33232-2~III
Firey v. Orozco


heightened by the undisputed fact that the two experts did not make any personal

observations concerning either defendant's work until after several other contractors

performed work, resulting in the likely alteration ofK&T Construction's and Crown

Mobile's work. Similar to Miller, we hold that the trial court properly determined that

the experts' opinions were speculative because they lacked an adequate factual

foundation and were, therefore, insufficient to create a genuine issue of material fact.

2.    Whether the trial court erred in dismissing Ms. Firey's claim/or unjust
enrichment

         Ms. Firey contends that the trial court erred in dismissing her unjust enrichment

claim. While she admits that the claim is not available to parties who enter into a

contract, she contends that whether a contract existed is yet to be determined. Thus, she

maintains that it was premature for the court to dismiss her alternative claim of unju.st

enrichment.

         "Unjust enrichment is the method of recovery for the value of the benefit retained

absent any contractual relationship because notions of fairness and justice require it."

Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008). Where a valid contract

governs the rights and obligations of the parties, unjust enrichment does not apply. See

Mastaba, Inc. v. Lamb Weston Sales, Inc., 23 F. Supp. 3d 1283, 1295-96 (E.D. Wash.

2014).




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No. 33232-2-II1
Firey v. Orozco


       Here, all parties agree that Ms. Firey entered into a time and materials contract

with both K&T Construction and Crown Mobile. No genuine issue of material fact

remains. Consequently, Ms. Firey has an adequate legal remedy for breach of contract.

The fact that she cannot prove her breach of contract claim does not permit her to raise

unjust enrichment.

      Affirm.

      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.


                                              Lawrence-Berrey, 1.

WE CONCUR:




Brown, A.C.J.                                 Fiorsmo, J.   7




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