                                                                                    FILED
                                                                            COURT OF APPEALS


                                                                           2013 M, R - 5 A1 9:214
                                                                                 A

          IN THE COURT OF APPEALS OF THE STATE OF                           WASH-
                                                                                I                  OM
                                                                            BY
                                                    DIVISION II                         U7y

    FREDERICK BEAU GOULD and JULIE P.                                 No. 42098 8 I1
                                                                                - -
    GOULD, husband and wife,

                                        Respondents,

             V.



    HONG BIN IM and NANETTE MARIE IM,                             UNPUBLISHED OPINION
    aka YOUNG B.IM,husband and wife,




             WORSWICK, C. . —
                        J    After summary judgment on liability and a bench trial on damages,

    Hong Bong Im appeals a final judgment to Frederick Gould for breaching a well maintenance

    agreement. Im argues that the trial court erred by ( )
                                                       1 considering supporting affidavits

    containing inadmissible evidence, 2)
                                      ( reforming the agreement on summary judgment because

    there was a genuine issue of material fact, and (3)awarding consequential damages that were

j   unforeseeable and speculative. We hold that the trial court did not err when it reformed the

    contract, that the damages award was not speculative,and that Im failed to preserve his other

    arguments for appellate review. We affirm.

                                                         FACTS'

             In August 2007, Gould was remodeling and landscaping his real property with the

    intention to sell it later that year. In September 2007, Im disconnected Gould's property from the

    well that was its only source of water. Gould's property had a right to water from a well on Im's

    1
        The facts   are   undisputed, except as   noted. .
    No. 420988 II
             - -




    property under a well maintenance agreement executed before either of them acquired their

    properties. But instead of identifying the parcel with the well,the agreement identified a

    different, vacant parcel that Im also owned. As a result of Im's refusal to allow reconnection to

    the well for approximately two years, Gould was unable to sell his property before real estate

    prices plummeted in 2008.

    A.     The Well Maintenance Agreement

           M. .Daviscourt and his wife owned a property that included three houses, a well, and a
            C

    creek. All three houses drew water from the well.

           In 1991, Daviscourt divided the property into three parcels: The first parcel (Im Parcel 1)

    contained two houses and the well;the second parcel (Im Parcel 2)was vacant land adjacent to

    Im Parcel 1 and was the site of the creek;and the third parcel (the Gould Property)was on the
                                              .

    other side of a road and had a house on it.


           The same year, Daviscourt made a well maintenance agreement to " rovide for future
                                                                          p

    use, maintenance and repair of the well." s Paper (
                                            Clerk'    CP)at 259. In part,the agreement

    stated: 1) "[e owners will have the right to draw water from said well," (n] part
            ( T]h                                                          2) "[either

    sic]shall interfere with the use of the well by the other," (3) "[ owners agree to pay a
                                                              and t]he

    monthly charge ... to share in electrical cost for the operation of the well pump."CP at 260.

    The agreement stated that it runs with the land and binds the Daviscourts' successors in interest.

    Daviscourt recorded two copies of the well maintenance agreement with the Mason County

    auditor.




                                                     2

I
No. 42098 8 II
          - -




         The well maintenance agreement identifies the Gould Property and assigns it the right to

use the well. However, the legal description in this agreement describes Im Parcel 2 as the

parcel on which the well is located. In fact, Im Parcel 1 is the site of the well actually connected

to the Gould Property.

         After making the well maintenance agreement, Daviscourt sold the Gould Property to

Nathan Cox in 1991. Daviscourt showed Cox that the Gould Property drew water from the well

on Im Parcel 1. Cox paid Daviscourt a share of the monthly electric bill for the well pump.

Daviscourt and his wife are now deceased.

B.       The Well Dispute

         In 2006, Cox sold the property to Gould. Im purchased both Im parcels in May 2007. In

the summer of 2007, Gould was extensively remodeling and landscaping his property, preparing

to sell it. While Gould owned the property, he did not pay for any part of the well's electricity

bills.


         After receiving electricity bills despite being away from the property, hn discovered that

his well serviced the Gould Property. Based on his research of Mason County records, Im

concluded that the well was a private well lacking permits for shared use and that he alone had a

right to use it.

         In August 2007, Im approached Gould's contractor, objecting to Gould's connection to

the well. On August 14, Im sent Gould a letter that stated, If I don't hear from you by the end
                                                            "

of August, I will shut off the connection to your home."CP at 289.




                                                  3
No. 42098 8 II
          - -




       Im received no reply, and Gould's contractor discovered the well was disconnected on

September 10. The contractor reconnected the well,but Im disconnected it a second time. On

September 17,the contractor found a note on Gould's door stating:
       Well   across   the street is   private.   See county records.   Do not trespass on our
       property to access well house. Mason County Sheriff has been informed. Hong
       253 -532 xxxx. I am taking legal action against the general contractor.
                -

CP at 294. The contractor called Im and faxed him a copy of the well maintenance agreement

the following day. Im admitted that he had disconnected the Gould Property from the well and

refused to allow reconnection. The well remained disconnected until after August 24, 2009.

C.     Summary Judgment and Trial

       Gould commenced an action seeking quiet title in rights to use the well and damages for

breach of the well maintenance agreement. Gould moved for partial summary judgment on

liability and sought reformation of any mistake in the agreement. He presented a total of 12

supporting affidavits and declarations.

       Im asserted that the well maintenance agreement was intended to give the Gould

Property's owner the right to draw water from the creek on Im Parcel 2. In support of this

assertion, Im presented the affidavit of a licensed surveyor who called the creek.a surface water
                                                                                     "

well."
     CP at 227


       However, Im's predecessor averred that when he (the predecessor)owned the property

t] creek wasn't a well"and the only well on either parcel was the well on Im Parcel 1. CP at
 he

248. Likewise, Gould's predecessor averred that the two Irn Parcels contained only one well

between 1991 and 2006. According to the declaration of Daviscourt's son, In 1991 there was
                                                                         "




                                                      F.
No. 42098 8 II
          - -




only one well on the properties."CP at 258. A.longtime neighbor's declaration added, If there
                                                                                     "
is a second well on Im's property, it is not the well that has continuously served Gould's house
since at least 1985."CP at 255.


       In his response brief, Im asserted that Gould's motion "elie[ ]
                                                              r d heavily on

unsubstantiated hearsay and other inadmissible evidence," Im did not specify which
                                                        but

statements were inadmissible or cite legal authority in support of this assertion. CP at 244.

Otherwise, Im asserted that there was a genuine issue of material fact because Daviscourt's

intent was unclear


       In August 2009,the trial court granted Gould's motion, reformed the well maintenance

agreement, and scheduled a trial to determine the amount of damages. Gould then reconnected

the well, and the Gould Property sold for $
                                          000
                                          1100,in February 2010.
                                            .,

       At the October 2010 trial,the trial court allowed both sides to present evidence,on

whether Im had caused damages willfully. But the trial court's order in limine confined the

evidence to the issue of damages and excluded testimony Im planned to offer to show his

understanding of his rights in the well.

        Gould presented testimony to establish damages. Gould's real estate agent testified that

he was prepared to list the Gould Property for $
                                               000
                                               1600,in 2007,but that the disconnection
                                                 ,

from the well made the Gould Property unmarketable. An expert real estate broker testified that

million -
        dollar properties listed by Gould's agent in 2007 sold on average for 97 percent of their

list price. The broker fiuther opined that $
                                           000
                                           1, was a reasonably certain estimate of the
                                             600,




                                                 5
No. 42098 8 II
          - -




Gould Property's market value in 2007, but that its market value declined to $
                                                                             000
                                                                             1100,in 2010,
                                                                               ,
when it was the only million -
                             dollar property sold in the area.

       The trial court found that Im breached the agreement in bad faith. The court's damage

award included $ 55, 00 in consequential damages, representing profits lost when Gould sold
               4 0

the property in 2010 of 2007 as planned.
                                             ANALYSIS


                    I.EVIDENTIARY OBJECTIONS TO SUPPORTING AFFIDAVITS


       Im argues that the trial court erred by considering supporting affidavits that contained

hearsay and conclusory statements not based on personal knowledge. Gould responds that Im

failed to preserve this argument for appeal. We agree with Gould.

       CR 56( )
            e provides that "[
                            s] and opposing affidavits shall be made on personal
                               upporting

knowledge [and] shall set forth such facts as would be admissible in evidence."To preserve a

claim that statements in a supporting affidavit are not admissible as evidence, a party must object

to the specific deficiency or must_
                                  move the trial court to strike_ affidavit before entry o
                                                                the

summary judgment. Parkin v. Colocousis, 53 Wn. App. 649, 652, 769 P. d 326 (1989).Failure
                                                                   2

to object to an affidavit before the entry of summary judgment waives the objection. Bonneville

v. Pierce County, 148 Wn. App. 500, 509, 202 P. d 309 (2008).
                                              3

        Im argues that he preserved this objection by raising it below in his brief opposing

summary   judgment.   That brief states   only, "[Gould's]
                                                         summary judgment motion relies heavily

on unsubstantiated hearsay and other inadmissible evidence."CP at 244. But Im did not

specify, either to the trial court or to us, which portions of Gould's 12 supporting affidavits were,



                                                   0
No. 42098 8 II
          - -




in his view, inadmissible. Im failed to adequately specify the evidence's deficiency to the trial

court, and thus he did not preserve this claim for appeal.

                                        II. REFORMATION


       Im argues that reformation was unwarranted on summary judgment because a genuine

issue of fact exists as to whether the well maintenance agreement's language differs from

Daviscourt's intent. We disagree.

       We review an order granting summary judgment de novo, engaging in the same inquiry

as the trial court. Schmitt v. Langenour, 162 Wn. App. 397, 404, 256 P. d 1235 (2011).
                                                                      3

Summary judgment is appropriate when there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. CR 56( ). material fact is one that
                                                              c A"

affects the outcome of the litigation."Owen v. Burlington N. Santa Fe R. . Co., Wn. d 780,
                                                                       R      153 2

789, 108 P. d 1220 (2005).In ascertaining whether a genuine issue exists, t] court must
          3                                                               "[ he

consider the facts submitted and all reasonable inferences from those facts in the light most

favorable to the nonmoving party. The motion should be granted only if,from all the evidence,

reasonable persons could reach but one conclusion."Clements v. Travelers Indem. Co.,
                                                                                   121

Wn. d 243, 249, 850 P. d 1298 (1993).The burden is on the moving party to establish its right
  2                  2                "

to judgment as a matter of law,but the opposing parry may not rely on mere speculation or

unsupported assertions."Molsness v. City of Walla Walla, 84 Wn. App. 393, 397, 928 P. d 1108
                                                                                    2

1996).

        In general, a court may not reform an inadequate legal description of a property;

however, a court may reform an inadequate legal description resulting from a scrivener's error or



                                                  fl
No. 42098 8 II
          - -




mutual mistake. Geoghegan v. Dever, 30 Wn. d 877, 889, 194 P. d 397 (1948);
                                       * 2                  2             Snyder v.

Peterson, 62 Wn. App. 522, 525 26,814 P. d 1204( 991).The party seeking reformation must
                               -       2       1

establish that reformation is warranted by clear, cogent, and convincing evidence; however, the
                                                                                            "

mere denial that a mistake was made will not defeat an action for reformation."Akers v.

Sinclair,37 Wn. d 693, 703 04,226 P. d 225 (1950).
              2            -       2

        A scrivener's error occurs when the intention of the parties is identical at the time of the

transaction but the written agreement errs in expressing that intention."Reynolds v. Farmers Ins.

Co. of Wash.,90 Wn. App. 880, 885, 960 P. d 432 (1998).The intentions of the parties to a
                                        2

contract is generally a question of fact. Paradise Orchards Gen. P'hip v. Fearing, 122 Wn.
                                                                  s

App. 507, 517, 94 P. d 372 (2004).A court ascertains the parties' intent "` viewing the
                   3                                                     by

contract as a whole,the subject matter and objective of the contract, all the circumstances

 surrounding the making of the contract,the subsequent acts and conduct of the parties to the

 contract, and the reasonableness of respective   interpretations advocated by       the   parties. "' Berg v.

Hudesman,115 Wn. d 657, 667, 801 P. d 222 (1990)_(
               2                  2            qu Stender v. Twin City Foods, Inc.,

 82 Wn. d 250, 254, 510 P. d 221 (1973)).
      2                  2

        Here, the facts establish that Daviscourt intended the well maintenance agreement to give

 the Gould Property owner the right to use water from the well on Im Parcel 1. Daviscourt made

 and recorded the well maintenance agreement in 1991, when he owned the Gould Property and

 the two Im parcels. The purpose of the agreement was to " rovide for future use, maintenance
                                                         p

 and repair of the well"for the benefit of the owners of the Gould Property. CP at 259. At the
                                                               to the   well        Im Parcel 1.    Further,
 time of the   agreement, pipes connected the Gould Property                   on
No. 42098 8 II
          - -




Daviscourt knew that the well on Im Parcel 1 served the Gould Property, and later that same year

he showed Cox the source of the Gould Property's water. Nothing in the record suggests that

Daviscourt, or his successors in interest other than Im, ever considered the possibility that the

Gould Property would obtain its future water from a different, nonexistent connection to a well
on Im Parcel 2.


       Further, Daviscourt's conduct in performing the agreement after he sold the Gould

Property to Cox suggests his understanding of the agreement's meaning. The agreement

required the parties to share the well's maintenance and electricity costs. When Cox owned the

Gould property, Daviscourt collected from Cox a share of the electric bill for drawing water from

the well on Im Parcel 1. Considering the text of the well maintenance agreement and

Daviscourt's performance, it is clear that Daviscourt intended the agreement to refer to Im Parcel

1, not Im Parcel 2 as written.

        Im contends that in weighing the motion for summary judgment, the court must infer that

Daviscourt intended the Gould Property to obtain water from Im Parcel 2. However, that

inference is unreasonable. The only water source on Im Parcel 2 is a creek. In 1991, pipes

connected the Gould Property to the well on Im Parcel 1;at no time has the Gould property been

connected to the creek. Nothing in the record suggests that Daviscourt intended the Gould

Property to draw water from a creek or from some other well that did not exist in 1991. Further,

Im's inference would render the agreement's provisions regarding the pump and electricity costs

ineffective, frustrating the agreement's cost -sharing objective. The only water pump on either




                                                  6
No: 42098 8 II
          - -




Im parcel is the electric pump serving the well on Im Parcel 1, and without this pump there can
be no costs to share.


       Im's assertion that Daviscourt intended the well maintenance agreement to refer to Im

Parcel 2 receives no support from any reasonable inference. Daviscourt's intention is shown by

the existence of only one well on the two Im parcels, the other provisions of the well

maintenance agreement, the course of conduct between Daviscourt. and Cox, and the absence of

any other plausible explanation of Daviscourt's intent. See Berg, 115 Wn. d at 667.
                                                                        2

Considering the facts submitted and all reasonable inferences from those facts in the light most

favorable to Im, reasonable persons could conclude only that Daviscourt intended the well

maintenance agreement to refer to Im Parcel 1 instead of Im Parcel 2. See Clements, 121 Wn. d
                                                                                          2

at 249;Molsness, 84 Wn.App. at 397.

       Accordingly, the well maintenance agreement's reference to Im Parcel 2 is the product of

a scrivener's error. See Reynolds, 90 Wn. App. at 885. The trial court appropriately reformed

the scrivener's error in the agreement to match Daviscourt's intention._ Snyder, 62 Wn. App.
                                                                       See

at 525 26.
       -


                                    III. CONSEQUENTIAL DAMAGES

       Im argues that the trial court erred in awarding consequential damages because (1)the

amount of the award was speculative and (2) damages were not reasonably foreseeable. We
                                          the
                                s



2
 Im also assigns error to the trial court's determination that Gould did not fail to mitigate
damages. But Im's brief does not contain an argument on this assignment of error, as RAP
a)(requires. Therefore, we deem this assignment of error waived. Smith v. King, 106
10. (
  6)
  3
Wn. d 443, 451 52,722 P. d 796 (1986).
  2            -       2



                                                10
No. 42098 8 II
          - -




hold that the damage award is not speculative and that Im failed to preserve his foreseeability

argument for appeal.

       In a breach of contract action, an award of consequential damages may include lost

profits " hen ( )
        w     1 they are within the contemplation of the parties at the time the contract was

made, 2)
      ( they are the proximate result of defendant's breach, and (3)
                                                                   they are proven with

reasonable certainty."Larsen v. Walton Plywood, Co., Wn. d 1, 15, 390 P. d 677 (1964).
                                                   65  2               2

A.     Speculation

       Im argues that the trial court based its determination of Gould's lost profits on

speculation. We disagree.

       In a breach of contract action, a plaintiff may recover damages for lost profits that " re
                                                                                             a

proven with reasonable certainty."Larsen, 65 Wn. d at 15. "[
                                               2          C] onversely, damages which are

remote and speculative cannot be recovered."Larsen, 65 Wn. d at 16. A greater degree of
                                                         2

certainty is required to prove the fact of damages than the amount of damages: once it is

reasonably certain that the breach caused damages, the fact -finder may determine the amount of

the damage award by drawing reasonable inferences from reasonably convincing evidence.
            Inc. v. Hyak Lumber &
Gaasland Co.,                           Millwork, Inc., Wn. d 705, 713 14,257 P. d 784
                                                      42  2            -       2

1953).Further, when a breach is willful or when the breach itself creates a difficulty in proving

damages, the court may relax the plaintiff's burden to establish damages by reasonable certainty.

Larsen, 65 Wn. d
             2       at   17; RESTATEMENT (SECOND)OF CONTRACTS § 352 cmt. a ( 981).
                                                                            1

        To prove lost profits,the plaintiff may present a profit history or a reasonable estimate

based on an analysis of market conditions and the experience of similar businesses operating in
 0




                                                 11
No. 42098 8 II
          - -




the vicinity and under substantially the same conditions. Farm Crop Energy, Inc. v. Old Nat'l

Bank of Wash.,109 Wn. d 923, 928, 750 P. d 231 (1988).An award of lost profits can be based
                    2                  2
on expert testimony alone. Larsen, 65 W4. d at 17. When a trial court has heard testimony on
                                        2

the amount of lost profits, an appellate court decides only whether the testimony had "
                                                                                      a

substantial and sufficient factual basis."Larsen, 65 Wn. d at 19.
                                                       2

       Here, Gould presented evidence from real estate professionals about sales of million-

dollar homes in the Hood Canal area of Mason County. Gould's real estate agent testified that he

was prepared to list the Gould Property for $
                                            000
                                            1600,in 2007. An expert real estate broker
                                              ,

agreed that the property would have sold in 2007 for " omething close to a million six"and
                                                     s

reported that the agent's properties sold on average for 97 percent of list price. Verbatim Report

of Proceedings (VRP)at 175. Im did not present conflicting testimony on the Gould Property's

value. The trial court weighed this testimony and found that the house would have sold in 2007

for 97 percent of its list price, or $
                                     000,
                                     1555,if the well disconnection had not made the property
                                       ,              .

unmarketable for approximately_ years._
                              two     Instead, the Gould Property actually sold for

000,
1, and the expert broker testified that he believed the sale price to represent the
  100,

property's fair market value in 2010, given that it was the only sale of a million -
                                                                                   dollar property

in that area during the whole year. The trial court then determined that Gould's consequential

damages equal the 2007 market value less the 2010 market value, or $ 55, 00.
                                                                   4 0

       Im argues that the basis of this finding is speculative because high real estate prices in

2007 were an " nomaly"and because the testimony did not prove that Gould would have found a
             a

buyer in 2007. But the evidence, including expert testimony, showed that the house could have



                                                 12
No. 42098 8 II
          - -




sold for its market value in the fall of 2007, if it had water. An analysis of market conditions is

not speculative when supported with substantial and sufficient facts, whether or not market

conditions are anomalous. See Farm Crop Energy, 109 Wn. d at 928. Moreover, any difficulty
                                                      2

in proving the precise amount of the Gould Property's 2007 market- alue was directly caused by
                                                                 v

Ira's breach, which prevented the house from being listed in 2007. See Larsen, 65 Wn. d at 17.
                                                                                    2

          In addition, Im argues in the alternative that ( ) awarding damages, the trial court
                                                         1 in

improperly considered the willfulness of Im's breach and (2) trial court's order in limine
                                                           the

erroneously prevented Im from presenting evidence that his breach was not willful. We disagree

with both arguments.

          The first argument fails because the willfulness of Im's breach is a proper matter for the

trial court to consider. Im's willfulness is a basis to relax Gould's burden of proving reasonably

certain   damages.                   SECOND)OF CONTRACTS § 352 cmt. a.
                     See RESTATEMENT (


          The second argument fails because the trial court's order in limine did not prevent Im

from introducing evidence of whether he acted willfully. The order restricted the evidence to

items relevant to the issue of damages. The trial court specifically stated, I' not shutting the
                                                                             " m

door as to something that may have a bearing on willfulness."VRP at 58. The trial court

reserved rulings on the admissibility of particular pieces of evidence, per its " tandard practice in
                                                                                s

any trial."
          VRP at 58.

          Im's arguments fail. The damages the trial court awarded were reasonably certain and

not speculative.




                                                   13
No. 42098 8 II
          - -




B.     Foreseeability Issue Waived

       Im argues that the consequential damages award was improper because the damages were

not reasonably foreseeable to Daviscourt at the time of the contract. Gould contends that Im

never asserted that the trial court should consider foreseeability from the Daviscourts' standpoint

at the time the agreement was made, and that Im is not entitled to make this argument for the first

time on appeal. Gould is correct.

       We will generally not consider an issue or theory raised for the first time on appeal. RAP

a); v. Saberhagen Holdings, Inc., Wn.App. 334, 338, 160 P. d 1089 (2007).
2. (
 5 Lunsford                     139                      3

The reason for this rule is to afford the trial court an opportunity to correct any error, thereby

avoiding unnecessary appeals and retrials."Smith v. Shannon, 100 Wn. d 26, 37, 666 P. d 351
                                                                   2                2

1983).If a party becomes aware of an alleged error only after the trial has ended, he should

bring it to the trial court's attention in a motion for a new trial. Smith, 100 Wn. d at 37.
                                                                                  2

       Im argues that he raised the issue at trial under the standards of Osborn v. Public Hospital

District I, Wn. d 201, 492 P. d 1025 (1972), East Gig Harbor Improvement Association
           80 2             2              and

v. Pierce County, 106 Wn. d 707, 724 P. d 1009 (1986).But neither case supports Im's
                        2             2

argument. Osborn permits a party to invoke a statute for the first time on appeal if it pertains to

an issue that was squarely before the trial court. 80 Wn. d at 206. But Im's foreseeability
                                                        2

argument does not mention any statute. In East Gig Harbor,the parties preserved an issue by

arguing it and discussing relevant precedent in their trial briefs, even though they did not clearly

frame the issue before the trial court. 106 Wn. d at 709 10 n. . Here, Im's trial brief and
                                              2          -   1

motion for a new trial never mentioned foreseeability at the formation of the contract.




                                                  14
No. 42098 8 II
          - -




          Im did not raise this issue below. Im is not entitled to make this argument for the first

time on appeal, and we decline to exercise our discretion to let Im do so here. Affirmed.
          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports,but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
  0



                                                                Worswick, C. .
                                                                           J      '
I concur:                                                                             G
Hunt, J.
                    rj




3 Im cites two portions of the trial transcripts about " he issue of foreseeability."Reply Br. of Im
                                                       t
at 18 &   n. ( iting VRP at 141 45,283 85).
           4c                    -        -   Neither portion articulates Im's new argument. In
the first portion, Im's counsel cross -examined the expert real estate broker on whether the
national economic downturn affected real estate prices in the Hood Canal area. In the second
portion, Im's counsel agreed " or the sake of argument"that lost profits were " redictable"while
                             f                                                p
making an argument on the mitigation of damages. VRP at 284.
4
    The concurrencedissent arrives at a different result after ( )
                   /                                           1 finding that Im did not know that
Gould wished to sell his house and (2)deciding that the proper measure of Gould's .
consequential damages is a reasonable rental. We do not consider these issues because Im
neither raised these issues in the trial court, nor asked us to consider them on appeal. See RAP
a)(6). never
10. ( Im( argued lost rental as the measure of damages. Although we may affirm
  4),
  3
the decision below on any grounds supported by the record, RAP 2. ( do not reverse the
                                                                  a),
                                                                    5 we
decision below on grounds that the parties have never mentioned. See RAP 12. . It is not the
                                                                              1
function of an appellate court " o comb the record with a view toward constructing arguments for
                               t
counsel."In re Estate ofLint, 135 Wn. d 518, 532, 957 P. d 755 (1998); also RAP
                                    2                  2             see
a)(
10.
  6).
  3(



                                                   15
No. 42098 8 II
          - -




            BRINTNALL, J. concurring
       QUINN-              (              in part, dissenting in   part) — While I concur with my

colleagues in that portion of the majority opinion holding that Hong Bin Im failed to preserve his
challenge to Frederick Beau Gould's supporting affidavits and that reformation of the well
maintenance agreement was appropriate on summary judgment, I believe the trial court clearly

misapplied the law in calculating its damage award. Because consequential damages are only
appropriate when the special circumstances occasioning lost profits are known by the party
breaching a contract— nd the record here reflects that Gould presented no evidence that Im had
                    a
knowledge of Gould's intent to improve and then immediately sell the home I dissent.
                                                                          —
KNOWLEDGE OF SPECIAL CIRCUMSTANCES

       The common law has long recognized that consequential damages are appropriate in

certain circumstances. Baron Alderson explained the rationale behind such an award over 150

years ago:


        Where two parties have made a contract which one of them has broken, the
        damages which the other party ought to receive in respect of such breach of
        contract should be such as may fairly and reasonably be considered either arising
        naturally, i..,according to the usual course of things, from such breach of
                    e
        contract itself, or such as may reasonably be supposed to have been in the
        contemplation of both parties, at the time they made the contract, as the probable
                                Now, if the special circumstances under which the
        result of the breach of it.
        contract was actually made were communicated by the plaintiffs to the
        defendants, and thus known to both parties, the damages resulting from the breach
        of such a contract, which they would reasonably contemplate, would be the
        amount of injury which would ordinarily follow from a breach of contract under
        these special circumstances so known and communicated. But, on the other hand,
        if these special circumstances were wholly unknown to the party breaking the
        contract, he, at the most, could only be supposed to have had in his contemplation
        the amount of injury which would arise generally, and in the great multitude of
        cases not affected by any special circumstances, from such a breach of contract.




                                                 IRA
No. 42098 8 II
          - -




Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854)emphasis added).
                                                         (
          In arriving at the damage award in this case, the trial court incorrectly assumed that Im

was aware of the "special circumstances" involved here, that Gould was attempting to sell his

            g 4
home. See, e. .,       Report    of   Proceedings (RP)at 308 ( In this particular
                                                               "                       case, the Plaintiff -- the


facts    are   clear that the Plaintiff    was   remodeling   a   house to sell. ").     And because of this


assumption, the trial court awarded Gould the difference between what his home could have sold
for at the height of the real estate boom (although Gould never had an offer)and what it did sell
for after the market dramatically fella

          In calculating the damage award, the record shows that the trial court discussed an
alternative     remedy:    awarding the estimated amount the Goulds could have 'received in rent


5
    The United States Supreme Court has cited the Hadley decision for this proposition numerous
times, first approving of the decision in Western Union Telegraph Co. v. Hall, 124 U. .444, 8 S.
                                                                                    S
Ct.     577, 31 L. Ed. 479 ( 1888).         Our own Supreme Court has repeated the Hadley holding
multiple times with approval. See, e. .,
                                    g Gaglidari v. Denny's Rests.,Inc.,117 Wn.2d 426, 445-
46, 815 P. d 1362 (1991).Section 330 of the Restatement (First)of the Law - Contracts (
         2                                                                            1932)
also adopts the language from Hadley:
                 In awarding damages, compensation is given for only those injuries that
          the defendant had reason to foresee as a probable result of his breach when the
          contract was made. If the injury is one that follows the breach in the usual course
          of events, there is sufficient reason for the defendant to foresee it; otherwise, it
           must be shown specifically that the defendant had reason to know the facts and to
           foresee the injury.
6
    The trial court references the fact that Im knew the house was being remodeled multiple times.
But the trial court fails to explain why remodeling a house inevitably leads to knowledge of an
impending sale.
7
    Although the majority opinion's analysis of why this figure was proven with reasonable
certainty is sound, whether proven or not, absent proof of Im's knowledge of Gould's intent to
 sell the property, this award was inappropriately granted.


                                                        17
No. 42098 8 II
          - -




roughly $ 000)while the property was uninhabitable. But the court summarily dismissed
        140,
that amount stating, The testimony in this case wasn't that this house really was going to be
                     "

rented."4 RP at 317. This damages analysis is legally incorrect.

        Under Hadley and its progeny, Gould is entitled to lost rents (or, alternatively, to

recoupment of expenses accrued while finding alternative housing) because it was foreseeable
that Im's actions would render the Gould home uninhabitable. But because the record does not

reflect that Im knew of the "special circumstances" related to the Gould propertythat the
                                                                                  —
Goulds intended to     improve    and then   immediately sell    the home —damages        related to the home

sale are inappropriate.

        Put another way, if a party deprives her neighbor's home of water, it is foreseeable in the

usual course of things" that the neighbor will not be able to live there for a time. Thus, the

aggrieved neighbor is entitled to the lost rental value of the property while the water is blocked
or the recoupment expenses accrued while finding alternative housing). But there is no reason
for -he at-
    t     fault -neighbor to assume that her aggrieved neighbor_intended on improving and _

immediately selling     the home.     Without knowledge of such special circumstances, the at fault
                                                                                              -

neighbor should not be liable for these special damages.

        Washington      courts have not had occasion to           visit this   precise   issue.   However, in


Thompson v. Hanson, 6 Wn. App. 1, 491 P. d 1065 (1971),
                                       2              Division Three of this court did
consider whether a contractor's contract breach could serve as the basis for a real estate

developer's lost profits. In Thompson, a real estate developer, Alpine, hired D. . McHenry to
                                                                               S
build   a   sewage   plant   to service   Alpine's properties.    6 Wn.    App.   at 2.    McHenry took an




                                                      18
No. 42098 8 II
          - -




unreasonable amount of time to complete the plant and, in result, Alpine was unable to sell

vacant lots on its property as quickly as it had hoped. Thompson, 6 Wn. App. at 2 4. Alpine
                                                                                  -

sued McHenry for breach and the trial court found that

        Alpine . uffered additional loss of profit due to McHenry's breach inasmuch as
               s
        there was a substantial increase in the interest rate on construction loans and other
        economic developments from December 1967 to November 1969 which made it
        difficult for purchasers to obtain construction financing thereby requiring Alpine
        to reduce the sales price of vacant lots 25 per cent.

Thompson, 6 Wn. App. at 4.

        On appeal, Division Three remanded the case for reconsideration of the damage award,

concluding that

                t] evidence does not sustain a conclusion that the wide swing in interest
                 he
        rates was within the contemplation of the parties at the time the contract was
        signed; nor was it reasonably foreseeable at that time. Further, there is no specific
        showing by Alpine that McHenry had special knowledge of the risk created by the
        unusual increase in interest rates.


Thompson, 6 Wn. App. at 5.

        Here, the situation is substantially the same. Not only did Gould fail to show that Im had

special knowledge of the risk created by the housing market's unforeseen collapse, Gould failed
to present any evidence showing that Im knew Gould wanted to sell the home.


8
    Last year, the Indiana Court of Appeals had reason to consider a claim even more closely
resembling the one at issue here. In Estate of Collins v. McKinney, 936 N. .252 (Ind. Ct.
                                                                        2d
                                                                         E
App. 2010),the Indiana court addressed a situation where the at fault party (the Estate of
                                                                  -
Collins) caused delay such that the aggrieved party (McKinney) could not purchase and resell
real estate at the height of the real estate boom. The McKinney court reversed an award of lost
profit damages, concluding that
                  t] award of expectancy style damages seems inappropriate here for two
                   he                    -
         reasons. First, there is no evidence in the record that McKinney communicated to

                                                  19
No. 42098 8 II
          - -




       Although this case concerns a contract breach, the Restatement (Second) of Torts (1979)

provides   a   useful   analog in thinking through the damages award. Section 931, Detention or
                                                                                   "

Preventing Use of Land or Chattels,"
                                   states,

       If one is entitled to a judgment for the detention of, or for preventing the use of,
       land or chattels, the damages include compensation for
                  a) value of the use during the period of detention or prevention or the
                    the
       value of the use of or the amount paid for a substitute, and
                  b)harm to the subject matter or other harm of which the detention is the
       legal cause.

       In illustrating clause (a), Restatement describes a scenario where one party takes
                                 the

possession of another party's land for six months. Although the aggrieved party was not renting
the land and had no plans to rent the land, the Restatement states that reasonable rental value is

the appropriate damage award.

       A damage award accounting for the lost rental value of the Gould's property would

appear to be the appropriate calculation to apply in the circumstances here. It was foreseeable to
Im, in the usual course of things, that -shutting off water to the Gould property would make it
uninhabitable.      And although the Goulds do not appear to have treated the home as a rental




       or that Ray Collins otherwise knew that McKinney planned to sell the real estate
       almost immediately upon closing the sale....
                Second, there is no evidence from which the trial court could conclude
       that McKinney's sale was foreseeable in the `usual course of things'... .

                   Because the evidence and inferences therefrom do not support equitable
        compensation for lost profits on McKinney's sale of the real estate in 2009
        instead of 2007, we reverse the trial court as to the value of the ` damages'
        awarded and the accompanying award of prejudgment interest."
936 N. . 262 63.
    2d at
     E       -




                                                  20
No. 42098 8 II
          - -




property, the appropriate measure of damages is the reasonable rental value of the home as that

value most closely approximates the damages foreseeable to Im.

WAIVER


       On appeal, Im focuses much of his argument on whether Gould's damages would have

been foreseeable to M. . and Florence Daviscourt ( he previous property owners). Im failed to
                     C                           t

argue this theory of the case below and, as the majority opinion indicates, that argument is
waived. However, the motion for a new trial established that Gould never told Im that he wanted

to sell his property and, accordingly, Im was unaware of the special circumstances attendant on
his breach of the well maintenance agreement:

             After serving his complaint in October 2007, Plaintiff failed to file the
       complaint, or otherwise prosecute his claim, until April 2009. Moreover, between
       September, 2007, when Defendant disconnected Plaintiffs access to the well, and
       January 2008, when Plaintiff claims he would have needed to sell his property for
       I




            aximum value, Plaintiff never informed Defendant that he intended to sell the
       property, or that Defendant's actions were precluding him from selling the
       property. Defendant was never informed of the basis for the lion's share of
           Plaintiff's damages claim, until a couple weeks before trial,in October 2010.

Clerk's Papers at 84. The trial court denied Im's new trial motion.

           Because Im fails to reraise this argument in his appellant's brief, the majority considers

this issue waived. But because the trial court clearly misapplied the law in this case, I would

invoke this court's inherent authority to consider issues briefed and presented to the trial court




                                                   21
 No. 42098 8 II
           - -




 and to decide the appeal on that issue. State v. Aho, 137 Wn.2d 736, 740 41, 975 P. d 512
                                                                          -        2

 1999);
      State v. Carter, 138 Wn. App. 350, 368, 157 P. d 420 (2007);
                                                   3             RAP 12. (Here, the
                                                                     b).
                                                                       1
 record clearly reflects that Gould presented no evidence that Im knew the Goulds were real estate

 speculators and intended to improve and immediately sell the house. The record further reflects
 that the trial court was presented with, and summarily rejected, the correct amount—
                                                                                    lost rental
 valueof
      —     damages Gould should have received for            s breach.
                                                            Im'           In my view, the trial court

 simply misapplied Washington law regarding the proper method of calculating damages and
 awarded Gould an unwarranted windfall. Neither the common law, including 150 years worth of

 decisions affirming Hadley, nor Washington law, as seen in Thompson, support such an award.
 In these circumstances, I do not believe this court must turn a blind eye to the law and refuse to

 correct an obvious error. The measure of damages is a question of law which we should review

 and correct when our review of the record reveals error. See, e. .,
                                                                g Farmer v. Farmer, 172 Wn. d
                                                                                          2

 616, 625, 259 P. d 256 ( 2011).
                3                        Accordingly, I would affirm the reformation of the well

maintenance agreement_ I would_
                     but      remand_ the trial court for recalculation of damages under
                                    to

 the proper lost rental value formula.



                                                     Za44 X_-
                                                    I




                                                            I _




                                                        x                         1"

                                                BRINTNALL,
                                                QYJINN-J.




 9 I note also that Im's appellate briefing argues that the damage award was impermissibly
 speculative and that the collapse of the housing market was unforeseeable by the parties.
 Although these arguments are not well formulated or conceivede. ., focuses on whether
                                                              — g Im
 damages would have been foreseeable to the Daviscourtsthey are at least cogent enough to
 alert this court to potential error in the damage award.

                                                   22
