      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

  SHEPLER CONSTRUCTION, INC.,
                                                        No. 68227-0-1
                      Respondent,
                                                        DIVISION ONE
                 v.

                                                        UNPUBLISHED OPINION
  GARY LEONARD and SUSAN KIRALY-
  LEONARD, and the marital community
  thereof,

                      Appellants

  PHH MORTGAGE SERVICES
  CORPORATION, a New Jersey
  corporation,

                       Defendant.                       FILED: June 3, 2013


         Appelwick, J. — Shepler and the Leonards appear before this court on their third

  appeal in this case. In 2006, this court reversed a summary judgment order dismissing

  the Leonards' construction defect counterclaims.    In 2009, we held that both parties

  waived arbitration, affirming the trial court's denial of the Leonards' motion to compel

  arbitration.   We noted that the parties did not waive their underlying claims.

 ^Nevgtheless, the trial court on remand barred the Leonards from asserting any

<5couj3erclaim that should have been submitted to arbitration under the contract's dispute

<?res<5J&tion provision. We reverse.
No. 68227-0-1/2



                                           FACTS

         In 2000, Gary Leonard and Susan Kiraly-Leonard contracted with Shepler

Construction, Inc., to build a custom home on San Juan Island.1             The fixed price
contract contained a dispute resolution mechanism and a provision for Shepler to

remedy nonconforming work before final payment. Shepler made an express warranty

that work would be "substantially completed in a workmanlike manner." The contract

did not contain any disclaimer of implied warranties or any provision limiting remedies.

         In 2001, a dispute arose regarding Shepler's performance and the Leonards'

payment.     Shepler sent letters to the Leonards recommending that they initiate the

dispute resolution process.      The Leonards admit that they did not respond to the

requests for dispute resolution of their claims.

         After filing a mechanic's lien against the Leonards' property, Shepler filed suit to

enforce the lien and obtain damages for breach of contract.             The Leonards filed

affirmative defenses and counterclaims, including a construction defect claim alleging

that Shepler breached the contract by failing to complete construction in a workmanlike

manner.      The trial court granted Shepler's motion for summary judgment on the

Leonards' construction defect counterclaim. After holding a trial on enforcement of the

mechanic's lien, the court entered judgment and awarded attorney fees in Shepler's

favor.    The Leonards appealed the dismissal of their counterclaims on summary

judgment. Leonard v. Shepler Constr.. Inc.. noted at 132 Wn. App. 1054, 2006 WL



         1 The underlying facts of this case are detailed at length in this court's two
previous opinions. Shepler Constr., Inc. v. Leonard, noted at 153 Wn. App 1035, 2009
WL 5153672, at *1-2; Leonard v. Shepler Constr., Inc., noted at 132 Wn. App. 1054,
2006 WL 1217216, at *1-2. We repeat only those facts necessary to this opinion.
No. 68227-0-1/3




1217216, at *2. In 2006, we reversed and remanded for trial, holding that a genuine

issue of material fact existed as to whether Shepler breached its contractual obligation

to perform in a workmanlike manner. kL at *3.

      In 2008, Shepler again filed for summary judgment, arguing that the Leonards'

counterclaims should be dismissed, because they breached the contract by failing to

seek arbitration. The trial court initially denied the motion. Upon Shepler's motion for

reconsideration, the trial court granted summary judgment on March 31, 2008. The

court ordered:


             The Leonards are barred from bringing any claim before this court
      that should have been determined by submittal to binding arbitration under
      the contractus dispute resolution provision. All causes of actions or
      counterclaims relating to Shepler Construction's performance under the
      parties agreement, and specifically those asserting that Shepler
      Construction's work was not performed in accordance with the contract
      between the parties, applicable building codes, and in good and
      workmanlike manner, are therefore dismissed.

The Leonards did not directly appeal the grant of summary judgment.

      On April 11, 2008, the Leonards filed a motion for reconsideration of the

summary judgment order or, alternatively, to compel arbitration. The court denied the

motion for reconsideration, finding that it was not timely. But, the court determined that

the Leonards' right to bring a timely motion to compel arbitration at a later date was

preserved. On May 21, 2008, the Leonards filed a motion to compel arbitration, which

the court denied.   The Leonards appealed from that denial.      Shepler Constr.. Inc. v.

Leonard, noted at 153 Wn. App 1035, 2009 WL 5153672.

      On appeal before this court, Shepler argued that the Leonards waived arbitration

and were therefore estopped from invoking it. Id at *2. We held that both parties
No. 68227-0-1/4




waived arbitration. Jd. at *3. Neither party initiated notice of arbitration as provided by

chapter 7.04A RCW. Id Neither party asserted a right to arbitration in their answers to

the pleadings of the other party. Jd. Both parties conducted discovery and engaged in

substantial litigation, including the prior appeal of the counterclaims. Jd Seven years

passed and substantial case development occurred before the Leonards asserted the

right to arbitrate. Jd Therefore, the trial court did not err in denying their motion to

compel arbitration. Jd

       The Leonards argued in the same appeal that the trial court erred in dismissing

their counterclaims on summary judgment. Jd They did not directly appeal the March

summary judgment order, but asked that we consider it under RAP 2.4(b). Jd We

declined to do so. Jd But, we added in footnote one that "[t]he arbitration clause did

not provide that it was the exclusive remedy for breach. As noted above, the parties

waived the arbitration clause by litigating, not the underlying claims." Jd at *3 n.1.

       The case was tried a second time on August 8-10, 2011. Citing footnote one of

our 2009 opinion, the Leonards requested that evidence of construction defects be

admitted at least for a recoupment or offset defense, or more broadly for the purpose of

their underlying counterclaims. Id The court recognized, "I want to make sure that I

follow The Court of Appeal's mandate, and I'm having a difficult time considering that

the footnote is a mandate." But, the court continued, "I believe that the mandate here is

exactly as [Shepler's counsel] has indicated and that is to determine ... the amount

owed under the charge orders ... but it's not to consider construction defects, and I will

so rule."
No. 68227-0-1/5




       Affirming the March 2008 summary judgment order, the trial court barred the

Leonards' counterclaims for construction defects.     In a November 9, 2011, decision

letter, the court reiterated that the "Leonards' refusal to comply with the dispute

resolution procedure set forth in the contract waived any claim of construction defect."

(citing Absher Constr. co. v. Kent Sen. Dist. No. 415, 77 Wn. App. 137, 890 P.2d 1071

(1995)). The trial was limited to Shepler's claims for compensation and foreclosure, and

the Leonards' counterclaims for incomplete work or offsets. The court entered judgment

and awarded attorney fees and costs in Shepler's favor.

       The Leonards appeal and argue that the trial court erred in dismissing their

construction defect counterclaims.


                                     DISCUSSION

       We review summary judgment orders de novo. Hadlev v. Maxwell, 144 Wn.2d

306, 310-11, 27 P.3d 600 (2001). Summary judgment is proper only when there are no

genuine issues of material fact and the moving party is entitled to judgment as a matter

of law. CR 56(c); Peterson v. Groves, 111 Wn. App. 306, 310, 44 P.3d 894 (2002).

The legal effect of a contract is a question of law reviewed de novo. Litho Color, Inc. v.

Pac. Emp'rslns.Co.. 98 Wn. App. 286, 295, 991 P.2d 638 (1999).

  I.   Summary Judgment Dismissal of the Leonards' Counterclaims

       We unambiguously held in 2009 that both Shepler and the Leonards waived

arbitration by litigating. Shepler. 2009 WL 5153672, at *3. In the same opinion, we

noted that "[t]he arbitration clause did not provide that it was the exclusive remedy for

breach. As noted above, the parties waived the arbitration clause by litigating, not the

underlying claims." Jd at *3 n.1. The trial court was persuaded that the Leonards'
No. 68227-0-1/6




breach of the agreement by failing to seek arbitration required dismissal of all their

claims that should have been arbitrated, and was not affected by our determination that

Shepler waived arbitration.2 This was error.

      The agreement between the Leonards and Shepler stated:

             If a dispute arises between owner and contractor as to the
      performance of contractor's obligations under this agreement, such
      disputes shall be resolved as follows:

             Each party shall employ a contractor of his or her choice to
      evaluate the work completed. The contractors then will select a third
      contractor to act as an impartial arbiter. This contractor shall, likewise,
      inspect the construction to determine if the work has been performed in
      accordance with this agreement, applicable building codes and in a good
      workmanlike manner as provided hereinabove.           If two of the three
      contractors determine that the work is not in conformity with the provisions
      of this agreement, then they shall state in writing the work in need of repair
      or replacement and contractor shall undertake to perform same as soon
      as reasonably practical. Contractor shall be responsible for owner's fees
      and costs associated with this arbitration as well as the impartial
      contractor's fees and costs. If no remedial work is recommended by the
      contractors, then the owner shall pay for the costs of the arbitration. The
      owner shall forthwith pay the amounts due to the contractor as established
       by a majority of the arbiters.

The Leonards assert that, because the dispute resolution provision does not use the

words "exclusive," "sole," or "only," it is not the only remedy for their counterclaims.

Shepler contends that use of the word "shall" throughout the provision means it is

mandatory and therefore the exclusive remedy for the Leonards' counterclaims. Failure




      2 The Leonards never directly appealed the March 2008 summary judgment
order. Shepler. 2009 WL 5153672, at *2. Nor did they file a written motion to
reconsider or vacate after our 2009 decision. However, both parties agreed at oral
argument that we have discretion to review the summary judgment order, because it did
not become final until the second trial in August 2011. RAP 2.4(a); Franz v. Lance, 119
Wn.2d 780, 781, 836 P.2d 832 (1992).
No. 68227-0-1/7




to arbitrate, Shepler argues, barred suit on the Leonards' claims and was not subject to

waiver by Shepler.

       Most contract terms will be viewed as mandatory in the sense that the parties

agreed that they will be bound by them and expect that they will be enforced by the

court. However, this does not mean that contract terms cannot be waived or modified.

It is also well established that parties may contract for an exclusive remedy that limits

their rights, duties, and obligations. Graoch Assocs. #5 Ltd. P'ship. v. Titan Constr.

Corp.. 126 Wn. App. 856, 865, 109 P.3d 830 (2005). But, the contract must clearly

indicate the parties' intent to make the stipulated remedy exclusive. Jd at 865-66

(holding that one year warranty was not an exclusive remedy for defective construction

where the contract did not so state); see also Torgerson v. One Lincoln Tower, LLC.

166 Wn.2d 510, 522, 210 P.3d 318 (2009) ("[Provisions limiting remedies in a

consumer transaction must be explicitly negotiated between buyer and seller and be set

forth with particularity.").

        Shepler relies on Absher and Mike M. Johnson, Inc. v. Spokane County. 150

Wn.2d 375, 78 P.3d 161 (2003). This reliance is misplaced.         Absher and Mike M.

Johnson are distinguishable from the contract at issue here, because the contracts in

those cases explicitly provided that failure to follow dispute resolution procedures

constituted a waiver of those claims. Mike M. Johnson, 150 Wn.2d at 380; Absher, 77

Wn. App. at 139-40. In Absher, Kent School District awarded Absher a contract to build

an elementary school. 77 Wn. App. at 139. Absher was required to give the district

written notice of any claims within 14 days after the events giving rise to claims, enter

into structured dispute resolution procedures, and mediate remaining disputes before


                                               7
No. 68227-0-1/8



any lawsuit could be commenced. Jd The contract specified that failure to provide

written notice constituted an absolute waiver of any claims arising from or caused by

delay. Id. at 140. As a result, the court held that Absher waived its claims by failing to

follow the dispute resolution procedures. Jd at 146.

       Similarly, in Mike M. Johnson, the county awarded Mike M. Johnson Inc. (MMJ)

bids to construct two sewer projects. 150 Wn.2d at 378. The two contracts required

that MMJ give signed, written notice of protest of work. Jd at 379. The contracts stated

that MMJ completely waived any claims for protested work by failing to follow this

procedure. Jd at 380. If protest procedures failed to provide a satisfactory resolution,

another provision required a mandatory formal claim procedure. Jd MMJ's failure to

submit required information supporting its claims constituted a waiver of those claims.

Jd The contract required full compliance with the claim procedures as "a contractual

condition precedent to the Contractor's right to seek judicial relief." Jd When disputes

arose, MMJ failed to follow both the protest and formal claim procedures before filing a

complaint for additional compensation.     Id at 384.   As a result, the Supreme Court

affirmed that trial court's dismissal of MMJ's claims. Jd at 384, 393. In contrast, the

contract here does not state that Leonards' failure to follow the dispute resolution

procedures expressly waives their right to pursue those claims in court.

       Even mandatory remedies are subject to waiver.        See Mike M. Johnson, 150

Wn.2d at 389 (a party to a contract may waive a contract provision meant for its

benefit).   In Otis Housing, the Washington Supreme Court held that the defendants

waived a mandatory arbitration clause when they failed to raise it as a defense in an

unlawful detainer action, but subsequently attempted to invoke it in a later action. Otis


                                                8
No. 68227-0-1/9




Housing Ass'n. Inc. v. Ha. 165 Wn.2d 582, 589, 201 P.3d 309 (2009). The arbitration

clause read:


             In the event that a dispute should arise under this agreement, as a
      condition precedent to suit, the dispute shall be submitted to arbitration in
      the following manner: The party seeking arbitration shall submit to the
      other party a statement of the issue(s) to be arbitrated and shall designate
      such party's nominated arbitrator.

Otis Housing Ass'n. Inc. v. Ha. noted at 138 Wn. App. 1058, 2007 WL 1567675, at *1.

This clause explicitly makes arbitration a condition precedent to suit. But, the contract

nowhere precluded waiver or required waiver by the other party to be in writing. Though

the facts differ, Otis Housing stands for the proposition that even where arbitration is a

precondition to suit, arbitration may be waived by the conduct of the parties, absent

language to the contrary. See 165 Wn.2d at 587; see also Detweiler v. J.C. Penney

Cas. Ins. Co.. 110 Wn.2d 99, 101, 111-12, 751 P.2d 282 (1988) (holding that insurer

waived uninsured motorist endorsement requiring arbitration of liability and damages

where it never demanded arbitration during four years of litigation).     Moreover, Otis

Housing recognized waiver of contract language even more restrictive than the

language in the contract before us.

       Absher and Mike M. Johnson are further distinguishable, because Kent School

District and Spokane County never waived the contractors' compliance with the dispute

resolution procedures. Mike M. Johnson. 150 Wn.2d at 391-92; Absher, 77 Wn. App. at

139-40. In Absher, the contract required any waiver of the claim procedures to be in

writing. 77 Wn. App. at 139-40. Kent School District never signed a written waiver or

evidenced any intent to waive the contract's mandatory claim procedures. Jd at 144.

No requirement of written waiver appears in the contract at issue here.          Likewise,
No. 68227-0-1/10



Spokane County never showed any intent to waive MMJ's compliance with the

contractual claim procedures, so the Supreme Court found no question of material fact.

Mike M. Johnson. 150 Wn.2d at 391-92. Because the school district and the county did

not waive arbitration, they could use it as a defense to preclude Absher and MMJ's

claims that should have been arbitrated.

       In contrast, we have already plainly held as a matter of law that both parties here

waived arbitration.    Shepler. 2009 WL 5153672, at *3.           As we explained then,

Washington courts have long held that the contractual right to arbitration may be waived

through a party's conduct if the right is not timely invoked. See, e.g.. Ives v. Ramsden,

142 Wn. App. 369, 382-84, 174 P.3d 1231 (2008); Halting v. Barton. 101 Wn. App. 954,

962, 6 P.3d 91 (2000). The right to arbitrate is waived by conduct inconsistent with any

other intention but to forego a known right. Verbeek Props.. LLC v. GreenCo Envtl.,

Inc.. 159 Wn. App. 82, 87, 246 P.3d 205 (2010). Simply put, a party waives a right to

arbitrate if it elects to litigate instead of arbitrate. Otis Housing. 165 Wn.2d at 588. The

Leonards filed their counterclaims in 2002.      Shepler did not assert arbitration as a

defense or move to dismiss the Leonards' arbitrable claims on that basis until 2008.

Both parties waived the dispute resolution clause by conduct. Our decision became the

law of the case, "effective and binding on the parties to the review and governing] all

subsequent proceedings in the action in any court."         RAP 12.2; see also State v.

Strauss. 119 Wn.2d 401, 412-13, 832 P.2d 78 (1992).

       The trial court erred in dismissing the Leonards' counterclaims. Because we are

reinstating the Leonards' counterclaims, we need not reach their alternative estoppel,

laches, and affirmative defense arguments.


                                                10
No. 68227-0-1/11




 II-     Jury Demand and Transfer to a New Judge

         The Leonards made a jury demand based on their counterclaim for damages, but

the trial court struck the demand after dismissing their counterclaims. The Leonards

request that we mandate a jury trial on remand, or at a minimum, mandate that the trial

court revisit their jury demand. The Leonards also ask that we grant a new trial on all

issues.


         The parties dispute whether the action is primarily legal or equitable in nature,

with Shepler's lien foreclosure claim being equitable and the Leonards' construction

defect counterclaims being legal in nature. Where an action is neither purely legal nor

purely equitable in nature, the trial court must determine whether it is primarily legal or

equitable in nature. Auburn Mech., Inc. v. Lydig Constr.. Inc., 89 Wn. App. 893, 898,

951 P.2d 311 (1998).      In making this determination, the trial court has considerable

discretion and should consider the seven factors described in Brown v. Safeway Stores,

Inc., 94 Wn.2d 359, 368, 617 P.2d 704 (1980). Any doubt should be resolved in favor of

a jury trial, in deference to the constitutional nature of the right. Auburn Mech., 89 Wn.

App. at 898. On remand, the trail court should revisit the Leonards' jury demand to

determine whether a jury trial is warranted based on the primary relief requested.

          The Leonards also request that we transfer the case to a different judge on

remand. They contend that the judge has already expressed erroneous views in the

case. The cited statements do not compel us to replace the trial judge. We decline to

do so.




                                                11
No. 68227-0-1/12




III.   Attorney Fees

       The contract has a prevailing party fee provision.           The Leonards are the

prevailing party in this appeal. We vacate the trial court's award of fees and costs to

Shepler, pending the new trial. Any fees awardable to the Leonards for this appeal shall

be determined if they are the ultimate prevailing party following trial.

       We reverse and remand for further proceedings.




WE CONCUR:




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