                                                                                                     FILED
                                                                                               COURT OF APPEALS
                                                                                                   DIVISION II

                                                                                              20!   AUG 12 PM ! 2: 136




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

GENERAL CONSTRUCTION CO.,                                                       No. 44402 -0 -II


                                    Appellant,


         v.



DAY ISLAND YACHT HARBOR, INC.,                                        UNPUBLISHED OPINION


                                    Respondent.


         HUNT, P. J. —    General Construction      Company       appeals a $   1. 25 million jury verdict based

on its finding that General Construction breached its construction contract with Day Island Yacht

Harbor, Inc.      General Construction     argues    that ( 1)   the trial court erred as a matter of law in


admitting Brian McGuire' s testimony         about   the value of his    marina, (   2) the jury verdict lacked

substantial supporting evidence, and ( 3) the trial court erred in denying General Construction' s

motion for new trial for these foregoing two reasons and also because ( a) the verdict did not " do

substantial justice" and ( b) the trial court improperly ruled that General Construction waived its

right to challenge McGuire' s opinion testimony about the diminution in value of his marina. Br.

of   Appellant   at   37. We   affirm.
No. 44402 - -II
          0



                                                             FACTS


                                       I. MARINE CONSTRUCTION CONTRACT


           Day Island Yacht Harbor, Inc. is a Washington corporation, which Brian McGuire

acquired     in 1970.        Beginning in 1988, Day Island contracted with General Construction, a

construction company specializing in marine- related construction work, whenever Day Island

needed piling replaced or other marine construction work.


           On May 20, 2008, Day Island and General Construction entered into a construction

agreement for dredging and piling work at Day Island Yacht Harbor, for an agreed price in

excess     of $   800,000.     The agreement provided that General Construction would furnish the


necessary     personnel,      equipment,      and       facilities for the    project   and   that its duties included ( 1)



mobilizing      and   demobilizing     cranes, anchors,        buckers,     and material    barges; (     2) demolishing float

piles; (   3) moving the floats       and    boathouses to temporary               anchorage; (   4)   dredging ( " all   work to


clamshell     dredge into     small    barges "); (      5) driving new piles; and ( 6) installing long wood piles

between existing        wood piles.      Clerk'     s   Papers ( CP)   at    12.    General Construction also agreed to


dredge the     marina    down to   a   depth   of minus        ten feet with a one -foot      allowance.       The agreement


stipulated    that the project would commence                  July 16,     2008.     The agreed price was in excess of


 800,000.


           General Construction began dredging in July 2008, but it encountered difficulties and

could not     dredge to the    required minus            10 -foot depth. General Construction told McGuire that it


was experiencing resistance " in hardpan" and was unable to dredge the north and south ends of

the   marina.     Verbatim Report       of   Proceedings ( VRP)        at    281.    McGuire paid General Construction


 615, 000 for its work to date.




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No. 44402 -0 -II



            Concerned that General Construction had not completed its work in some areas, McGuire


hired Wilson & Associates to survey the                   area.   The survey revealed that General Construction

had   not   properly dredged the       area:    For example, under three boathouses in the north end, there


was    still material    that   needed    dredging.        The south end of the moorage basin was not fully

dredged.       And the boathouses on the eastern end appeared to have shifted eastward. The survey

also revealed that although General Construction was supposed to have dredged 12, 800 cubic


yards of material, it had dredged only about 7, 000 cubic yards.

            Finishing   the   project required     taking     the      marina     apart and "   starting   over ";   it involved


such work as re- wiring, removing material underwater, pumping sediment onto the shore,

removing and replacing pilings at the north and south ends of the marina, re- wiring the facility,

and   potentially obtaining        a   new     permit.     VRP        at   319.    McGuire' s attempt to have General


Construction finish the          dredging       failed.     So McGuire contacted other marine construction


companies       and   sought price     estimates     for    finishing       the   dredging:     McGuire contacted Frank


Immel at Global Divers about the cost of removing underwater material and pumping sediment

on    shore.    McGuire       contacted   Thompson Pile               Driving     about   removing the      pilings.    And he


contacted Sound Rock and Bulkhead about dredging the material that General Construction had

failed to dredge and refused to complete.

                                                     II. PROCEDURE


            On May 19, 2011, Day Island sued General Construction for breach of contract, alleging

that ( 1) General Construction had breached its duty to perform dredging and marina operations in

accordance with their written agreement; and ( 2) as a result of this breach, Day Island was

entitled     to specific   performance       or   damages.            General Construction responded with a set of




                                                                  3
No. 44402 - -II
          0



interrogatories asking Day Island to list specific damages, which it did. There was a jury trial in

October 2012.


                                                     A. Trial Testimony

                                            1.       Day Island' s witnesses

         Jeffrey   Layton,    a coastal civil engineer with              Layton &    Sell, had worked as an engineer


with   General Construction       since   1977.         In 2002, McGuire had contacted Layton to help with

permitting for the     Day    Island   project.       Layton testified that the main dispute between McGuire


and General Construction involved the south area of Day Island and the diagonal boathouses.

The plan was for General Construction ( 1) to dig out a small area around the south end to allow

material   to flow down the     channel    into      the marina    before   dredging       underneath   the boathouse, ( 2)


to   remove   the boathouses in the basin and to store them offshore, and ( 3)                          then to return the


boathouses to their original positions. But General Construction did not move all the boathouses.


         McGuire testified about the agreement into which Day Island had entered with General

Construction. He stated that General Construction had failed to dredge 200 to 250 cubic yards at


the   north end of    the marina and 250 cubic yards at the south end.                      McGuire had first noticed a


problem before General Construction left the site in September 2008; and he had complained to


Tom Jirava,        General Construction'         s    employee      in    charge    of   site   operations,   that General


Construction had        not   completed     dredging        the    south    and    north    ends.   In September 2008,


McGuire contacted General Construction, asking it to complete the promised dredging; General

Construction       refused.   Nor did General Construction assist McGuire to fix the problems its


incomplete    dredging    had   caused.     Instead, General Construction told McGuire to contact Frank




                                                               4
No. 44402 -0 -II



Immel     and    to hire   a    diver to "   suck      the mud up and put it up on [ the] property," which would


have cost over $500,000. VRP at 308.


          McGuire had been             unable       to   find    another   contractor to "     fix" General Construction' s


failure to dredge the north and south ends of the marina and its failure to move the boathouses,

without       first taking the     marina apart and           starting   over.   VRP   at   318.    The cost of rebuilding the

marina,       including    rewiring, would be            at   least $    1 9 million, the amount McGuire had already

spent on       the   project.   When McGuire' s counsel asked if he had an opinion about how much the


value of the marina had dropped as a result of General Construction' s failure to dredge properly,

General Construction              objected on grounds of           lack    of   foundation   and expertise.     The trial court


overruled       the objection, stating that McGuire could answer and that the weight " goes to the



jury."

          Marty Jackson testified that Day Island had hired him and his former partner John

Patterson to work with General Construction to replace the boathouses back into the basin and to


secure    them in place with pilings.                  General Construction had to "               get certain piling in place"

before Jackson and General Construction could bring in the first row of boathouses; General

Construction would then install pilings outside the boathouses to secure them before the next row


of   boathouses        could    be brought in       and secured.         Jackson saw General Construction dredge and


pile drive using two barges, which Jackson believed were rather large for working in Day

Island'   s   small    basin, "   sort of   like   a   bull in   a china   shop."    General Construction' s large barges'


appeared to have a hard time maneuvering around the docks and pilings inside the basin because

clearance was minimal.
No. 44402 - -I1
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                                         2. General Construction' s Witness


          Ken Preston, an estimator and superintendent at General Construction, testified that


removing all the material that General Construction had failed to remove would cost about

    95, 000.   Preston had arrived at this figure by calculating the total number of yards of material

that still needed to be removed ( 500) divided by the yards that could be removed per day ( 30),

which would take about 2 weeks at a cost of $5200 a day as quoted by Immel at Global Diving.

The    cost of " mob[   ilizing]   and   demob[ ilizing]"     would    be   about $   15, 000. 1   VRP at 567.

                                                              Instructions2
                                                  B.   Jury

          The trial     court   instructed the    jury    to determine ( 1)     whether General Construction had


breached its     contract with     Day    Island; ( 2)   whether Day Island had sustained damages as a result

of    General Construction'        s   breach;   and (   3)   the amount of damages, if any, Day Island had

sustained.      On the specific issue of determining damages, the jury instructions stated that if the

jury found Day Island proved that it had incurred actual damages and if the jury determined the

amount of such actual           damages, then the jury        should award actual         damages to    Day    Island.   Jury

instruction 10 also specified that in calculating damages, the jury should determine the " sum of

money that will put the plaintiff [Day Island] in as good a position as it would have been in if

both    plaintiff and   defendant had      performed all of         their promises    under   the contract."   CP at 168.




1 Mobilization is the preliminary process and cost of starting a dredging project before the actual
dredging takes place: It includes towing the equipment to the site and preparing the equipment
and barges. Demobilization involves offloading and removing this equipment from the site after
the work is completed.

2
    General Construction did not challenge the jury instructions below. Nor does it challenge them
on appeal.




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No. 44402 -0 -II



                                                     C. Closing Arguments

          Day Island argued to the jury that ( 1) to repair the marina, Global Diving would charge

about $ 500, 000 and General Construction would charge about $ 200, 000 to pull the pilings; and


2) the property value had dropped to about 60 to 80 percent of the amount paid for the dredging

operation, $     1. 14   million and $      1. 52   million,   respectively.     Day Island also told the jury that the

measure of damages was to " put Mr. McGuire back in as good a position as he would be if he

hadn' t   met   these guys,"       and   that "[   McGuire] spent a million - ine figuring this marina was going
                                                                            n

to be   turnkey    to    pass on   to his next      generation.    Instead, he has      a mess.    I would like to have him


see the million -
                nine         back   and start all over."       VRP at 896.


          General Construction             argued     that to     show   damages,       Day   Island had to "      prove by a

preponderance           of evidence      the breach of contract and that             they     were   damaged," but "[       t]hey

didn' t really     produce    any damage            evidence,"    and   Day   Island'   s   damages did     not amount      to " a



million five" because, based on Preston' s testimony, the cost to move the boathouses and to

remove the remaining material out was only $95, 000. VRP at 879.

                                                     D. Verdict; Judgment


          The jury entered a special verdict finding that ( 1) General Construction had breached its

contract      with     Day   island to furnish the necessary                  personnel,     equipment,      and facilities to


accomplish       the    dredging    and associated       float   and marina repair at        Day   Island Yacht Harbor; ( 2)


as a result of General Construction' s breach of contract, Day Island had sustained damages; and

 3) the   amount of       these damages       was $    1, 250,000. The trial court entered judgment on November

2, 2012, awarding          Day     Island $ 1, 250, 000 in damages, plus costs and disbursements set forth in


its   costs   bills. The trial     court   denied    Day   Island'   s request   for attorney fees    or   litigation   expenses.
No. 44402 -0 -II



                                              E. Motion for New Trial


         General Construction           moved      for   a new trial and/ or remittur on grounds                    that ( 1)   Day

Island did not provide sufficient evidence to support the jury' s verdict, and a new trial was

warranted under      CR 59( a)( 7); (     2) McGuire' s testimony was inadmissible and the trial court' s

admission of     his testimony    constituted an error of             law   under   CR 59( a)( 8); and ( 3) the verdict did

                                                                                                                                       3
not "   do   substantial   justice,"    which      warranted      a   new     trial under CR          59( a)( 9).   CP    at    211.


General Construction argued that McGuire' s failure to present evidence of the value of Day

Island before the     alleged    damage       warranted         a new trial.        The trial court noted that although


General Construction had objected to the specific question about McGuire' s opinion on how


much the drop in value of the marina was, General Construction did not further object, file a

motion to strike, or challenge any subsequent testimony.

         The trial court also noted that ( 1) after the trial court overruled General Construction' s


objection,    McGuire had testified        about       his   opinion of     the   drop   in his   marina' s value; ( 2)   General


Construction had waived its objection to this testimony; and ( 3) the jury had heard the evidence,

rendered a verdict, and used the information presented at trial to reach their verdict. For these


reasons, the trial court denied General Construction' s motion for new trial and/ or remittur.

                                                   4
         General Construction          appeals.




3 General Construction also argued below that a new trial was warranted under CR 59( a)( 6) and
CR 59( a)( 5).    But these grounds are not before us on appeal.

4
    General Construction does          not raise   the   remittur     issue   on appeal.
No. 44402 -0 -II



                                                           ANALYSIS


                                      I. ADMISSION OF MCGUIRE' S TESTIMONY


        General Construction first argues that the trial court erred in admitting McGuire' s

testimony   on   damages.       More specifically, General Construction contends that ( 1) McGuire was

not qualified to opine about the Day Island marina' s diminution in property value as a result of

its ( General     Construction'       s)    breach    of   contract,   and (   2)    McGuire' s testimony was both

incompetent      and prejudicial           because   Day   Island failed to    lay   a proper   foundation for it. This


argument fails.


                                                 A. Standard of Review


        We review for abuse of discretion a trial court' s ruling on the admissibility of opinion

evidence.   State      v.   Demery,    144 Wn.2d 753, 758, 30 P.3d 1278 ( 2001).                It is well settled that an


owner is qualified to testify about the value of his property; no further " expert[ isej" is required.

See McCurdy       v.    Union Pac. R.R., 68 Wn.2d 457, 468 - 69, 413 P. 2d 617 ( 1966); Wicklund v.


Allraum, 122 Wn. 546, 547 -48, 211 P. 760 ( 1922);                   State v. Hammond, 6 Wn. App. 459, 462, 493

P.2d 1249 ( 1972).


         A property owner is presumed to be sufficiently acquainted with its value and the value

of surrounding lands to give an intelligent estimate of the value of his property. State v. Wilson,

6 Wn. App. 443, 451, 493 P.2d 1252 ( 1972).                         An owner' s knowledge about the value of his


property may come from many sources, including inquiries, comparisons, purchases, and sales.

Wicklund, 122 Wn. at 547. The source of the property owner' s knowledge may affect the weight

of   his testimony but        not   its admissibility.       Wicklund, 122 Wn.          at   547; McInnis &    Co. v. W.




                                                                9
No. 44402 -0 -II




Tractor Equip. Co., 67 Wn.2d 965, 968, 970, 410 P.2d 908 ( 1966).

                                                         B. Admissibility

            It is   undisputed    that    McGuire       was    the   owner of     Day   Island Yacht Harbor, Inc.       General


Construction challenges the proposition that a real property owner can testify about its value,

based     on    Wicklund' s   and    McPhee'       s   focus   on personal       property,    not real   property.   But General


Construction ignores that Washington courts have extended this long -established personal

property       value rule   to   real     property.     See State ex rel. Bremerton Bridge Co. v. Superior Court


for   Kitsap Cnty.,       194 Wn. 196, 198 -99, 77 P. 2d 800 ( 1938).                          Furthermore, a key case that

General Construction             cites,   State   v.   Wilson, 6 Wn.       App.    443, 493 P. 2d 1253 ( 1972), stands for


the very proposition that it contests here, namely that " the owner of real property has a right to

testify   as   to the value of his property."             Wilson, 6 Wn.          App.   at   451.   We hold that the trial court


did not abuse its discretion in allowing McGuire to testify about the value of his property.

            General Construction also argues that the trial court improperly admitted McGuire' s

testimony under Wilson, in which we ruled that an owner' s testimony about the fair market value

of his real property becomes incompetent when it is based on irrelevant factors and ignores

relevant       factors. This     argument also         fails because Wilson is distinguishable. In Wilson, we held


that ( 1)      evidence of the cost of reproducing or replacing a building is admissible when the

structures are well adapted                to the land    on which        they    stand; (   2) such reproduction cost is not


admissible when the sole factor for determining fair market value is based on structures located

on " another comparable-parcel of                 realty ";    and ( 3) because the owner' s valuation testimony was




                                                                     10
No. 44402 -0 -II




based solely on the cost of rebuilding structures on a different, but comparable, plot of land, the

trial   court   did   not abuse     its discretion in excluding           such   testimony. Wilson, 6 Wn. App. at 450-

51.


          Here, however, McGuire testified about the cost to reconstruct the same buildings at the


same place on          the   same   land   at   his   Day Island     marina.      Thus,   our   holding   in Wilson —that the


cost    of    reconstruction        on   the    same    plot    of   land is     admissible —supports       the    trial   court' s


admission of          McGuire' s testimony here.               Through McGuire' s testimony and related exhibits,

Day Island provided estimates of reconstruction costs on its own marina, not on a comparable

plot of land.5

             We further note that Wilson involved appellate review of the trial court' s exclusion of the


property owner Wilson' s valuation; here, in contrast, the issue is whether the trial court erred in

admitting property           owner    McGuire'        s valuation    testimony. As we explained in the Standard of

Review        section    of this    analysis,     we give deference to the trial court' s evidentiary rulings,

reversing only where in making such rulings, the trial court abused its discretion. We hold that

the trial court did not abuse its discretion in admitting the testimony of McGuire, who as Day

Island' s owner, was qualified as a matter of law to testify about the value of his property, both

before and after General Construction' s breach of contract, to prove damages.




5
    Day Island also provided ample other valuation evidence, including testimony from numerous
witnesses,       correspondence            between       the   parties,    and    price    estimates      from    other    marine
construction companies.   In contrast, the record in Wilson comprised a short record containing
only Dr. Wilson' s testimony. Wilson, 6 Wn. App. at 444 -45.

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No. 44402 -0 -II



                               II. SUBSTANTIAL EVIDENCE SUPPORTS JURY VERDICT


          General. Construction next argues that substantial evidence does not support the jury' s

 1. 25   million      damages    verdict.    General Construction asserts that under the diminution in value


theory, Day Island failed to provide the fair market value of the marina before and after General

Construction' s breach of contract. We disagree.


                                                  A. Standard of Review


          Courts       are reluctant   to interfere with a        jury' s   fair damages      award.     Washington State


Physicians Ins. Exch. &            Ass' n   v.   Fisons   Corp.,      122 Wn.2d 299, 329, 858 P.2d 1054 ( 1993).


Thus, we view the evidence in the light most favorable to the jury' s verdict. State v. Curtiss, 161

Wn.      App.    673, 693, 250 P. 3d 496 ( 2011).               And there is a strong presumption that a jury' s

damages award is correct. RCW 4.76.030, Green v. McAllister, 103 Wn. App. 452, 461, 14 P.3d

795 ( 2000).


          Nevertheless, an appellate court may overturn a jury' s damages award that is " outside the

range     of substantial evidence           in the   record."     Bingaman     v.   Grays Harbor         Cmty. Hosp., 103

Wn.2d 831, 835, 699 P. 2d 1230 ( 1985).                     Substantial evidence is the quantum of evidence


sufficient      to   persuade a rational,     fair -
                                                   minded       person   that the   premise   is true.   Sunnyside Valley

Irrigation Dist.        v.   Dickie, 149 Wn.2d 873, 879, 73 P. 3d 369 ( 2003). "`                Evidence of damage is


sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact

to   mere speculation or conjecture. "'              Clayton v. Wilson, 168 Wn.2d 57, 72, 227 P. 3d 278 ( 2010)


 quoting State v. Mark, 36 Wn. App. 428, 434, 675 P.2d 1250 ( 1984)).




                                                                 12
No. 44402 -0 -II



                                B. Breach of Contract Construction Damages


        For   determining       construction       damages,    our State Supreme Court has adopted the


Restatement ( Second)      of   Contracts § 348, at 119 -20, which provides, in pertinent part:


          1) If a breach delays the use of property and the loss in value to the injured party
        is not proved with reasonable certainty, he may recover damages based on the
        rental value of the property or on interest on the value of the property.
         2) If a breach results in defective or unfinished construction and the loss in value
        to the injured party is not proved with sufficient certainty, he may recover
        damages based on
         a) the diminution in the market price of the property caused by the breach, or
         b) the reasonable cost of completing performance or of remedying the defects if
        that cost is not clearly disproportionate to the probable loss in value to him.

Eastlake Construction      v.   Hess, 102 Wn.2d 30, 47 -48, 686 P. 2d 465 ( 1984) (       emphasis added).




        In cases involving breach of contract based on unfinished construction, the plaintiff can

prove   damages based      on   the cost to have the work completed          by   another contractor.   Eastlake,


102 Wn.2d     at   47. If, however, performance was defective instead of unfinished, the plaintiff can


recover damages based on the cost to remedy the defects. Eastlake, 102 Wn.2d at 48. If the cost

to remedy the defects includes the cost of undoing the defective work and if this remedial cost is

clearly excessive, damages should reflect the difference between the property' s fair market price

with and without the defects. Eastlake, 102 Wn.2d at 48.


        General Construction argues that Eastlake 's diminution in value theory required the jury

to ascertain damages based on the difference between the property' s fair market values

immediately    before    and    immediately    after   the damage.      Colella v. King County, 72 Wn.2d 386,

393, 433 P. 2d 154 ( 1967);         Harkoff   v.    Whatcom    Cnty.,   40 Wn.2d 147, 241 P.2d 932 ( 1952).




                                                          13
No. 44402 -0 -II



More      specifically,      General       Construction        contends     McGuire'         s    testimony —that Day Island

Marina' s property         value    declined     by   about    50 to 70   percent of         the $ 1. 9 million total cost of the

                project6     —




construction                      was speculative and insufficient to meet Day Island' s burden of proof and

did   not support     the jury' s $ 1. 25 million damages verdict. We disagree.


          Under Eastlake, the diminution in value theory is not the sole method for calculating

damages;      rather,      the   parties   can    also   base damages           on   the " reasonable cost of completing


performance      or of      remedying the defects" for defective                  or unfinished construction.               Eastlake,


102 Wn.2d at 47. Furthermore, the instructions here did not direct the jury to use the diminution

in value theory; instead, the instructions directed the jury to determine the sum of money that

would put Day Island in as good a position as it would have been if both Day Island and General

Construction had           performed       all   their promises       under     the contract.             Moreover, neither party




6
    The   original $   615, 000 contract between General Construction and Day Island was part of the
total " project costs."          See 3 VRP at 658.

7
    See, e. g., Jury Instruction 10, derived from WPIC 303.01, which provided, in pertinent part:
                      In order to recover actual damages, the plaintiff has the burden of proving
           that the defendant breached a contract with it, and that plaintiff incurred actual
           economic damages as a result of the defendant' s breach, and the amount of those
           damages.
                      If your verdict is for plaintiff on plaintiff' s breach of contract claim and if
           you find that plaintiff has proved that it incurred actual damages and the amount
           of those actual damages, then you shall award actual damages to the plaintiff.
                      Actual damages are those losses that were reasonably foreseeable, at the
           time the contract was made, as a probable result of a breach.       A loss may be
           foreseeable as a probable result of a breach because it follows from the breach
           either (   a)    in the ordinary           course    of    events,    or (   b)       as   a   result   of   special

           circumstances, beyond the ordinary course of events, that the party in breach had
           reason to know.
                 In calculating the plaintiff' s actual damages, you should determine the
           sum of money that will put the plaintiff in as good a position as it would have


                                                                     14
No. 44402 -0 -II


                                                                                                    8
articulated     the diminution in           value    theory during closing             argument.         Accordingly, General

Construction' s assertion that Day Island was required to prove damages under the diminution in

value theory fails.

            We turn instead to the              substantial    evidence       that supported the         jury' s $   1. 25 million


damages       verdict.         McGuire testified that ( 1) "        fix[ ing] the      marina"   involved re- wiring, which

alone would cost about a quarter million                   dollars; ( 2) he had     spent $   1. 9 million fixing the marina;

 3) there     was no other          way to " fix" the     marina without       taking it    apart and     starting   over; ( 4)   the


value of the marina probably dropped by about 60 to 80 percent as a result of General

Construction'        s   breach; ( 5)   part of "   fixing"   the   marina    involved     hiring   a   diver to " suck the mud


up" that General Construction had failed to dredge at the north and south ends of the marina and

pump this mud on to shore, which cost about $ 500, 000, VRP at 308, 319; and ( 6) he ( McGuire)

had already paid General Construction $ 615, 000 for its work, most of which had to be removed


            been in if both plaintiff and defendant had performed all of their promises under
            the contract.

                   The burden of proving damages rests with the plaintiff and it is for you to
            determine, based upon the evidence, whether any particular element has been
            proved by a preponderance of the evidence. You must be governed by your own

            judgment, by the evidence in the case, and by these instructions, rather than by
            speculation, guess, or conjecture.

CP     at   168, (   emphasis        added).     General Construction         WPI 303. 01 correctly
                                                                                concedes      that "

instructed that plaintiff could recover all `reasonably foreseeable' and ` actual economic damages
    suffered] as a result of        breach.'"    Br. of Appellant at 36.

8
 General Construction argued that Day Island ( 1) had to prove by a preponderance of evidence
            contract and the damages it suffered as a result, and ( 2) " didn' t really produce any
the breach of
damage evidence." VRP at 879. Day Island referenced McGuire' s testimony about the drop in
the property' s value to show the extent of damages: "                           We can' t tell you what it would cost
because there            are   too darn   many   problems      involved.       It is   a mess.      So we gave you our best
opinion as      to what this has done to            our   property   value.   60   to 80   percent of what      he   spent."   VRP
at 894.




                                                                    15
No. 44402 -0 -II



and redone at additional cost to Day Island because General Construction refused to repair the

damage it had      caused.      Frank Immel' s emailed price quote for a dive operation to remove the


mud    included: $ 3, 120 for an initial investigative dive to assess the project better, an estimated


 84, 000 for " mob[ ilization]           and   demob[ ilization],"       and $   7, 960   per   day for   repair costs.     CP at


313.   We hold that there was substantial evidence presented at trial to support the jury' s verdict

of $1. 25 million.


                                               III. MOTION FOR NEW TRIAL


         Finally, General Construction argues that the trial court abused its discretion in denying

its ( General Construction'         s)    motion       for   a   new   trial because (     1)   the trial court erroneously

admitted   McGuire'     s   testimony, ( 2) the trial court improperly ruled that General Construction had

waived   its   objections to    McGuire' s        testimony, ( 3) substantial evidence did not support the jury' s

verdict, and (   4) the      verdict "   does    not   do    substantial   justice."      Br.   of   Appellant   at   37.   Again,


General Construction' s argument fails.


                                                   A. Standard of Review


         It is well settled that granting or denying a motion for a new trial is directed to the

considerable sound          discretion    of   the trial court.    Coats   v.   Lee & Eastes, Inc., 51 Wn.2d 542, 552,


320 P.2d 292 ( 1958).         And we will not intervene with the trial court' s new trial decision absent a


manifest abuse of       that discretion.          Coats, 51 Wn.2d          at   552.   A trial court abuses its discretion


when it fails to grant a new trial or amend a judgment where the damage award is contrary to the

evidence.      Locke   v.   City   of Seattle, 162 Wn.2d 474, 486, 172 P. 3d 705 ( 2007).                        The test for an


abuse of discretion is whether no reasonable judge would have reached the same conclusion. In




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re   Marriage of Landry, 103 Wn. 2d 807, 809 -10, 699 P. 2d 214 ( 1985). We find no such abuse of


discretion here.


           We have already held that the trial court did not abuse its discretion in admitting

McGuire'        s   testimony       and    that substantial evidence supports the             jury' s     verdict.   Thus, there


remain two " new" arguments to address in the new trial context: whether the trial court properly

ruled that General Construction waived its objection to McGuire' s testimony and whether the

jury' s   verdict      did " substantial justice." Br. of Appellant at 37. We address each in turn.


                                                                B. Waiver


           General Construction argues that in considering its motion for a new trial, the trial court

erroneously ruled that. (1) it (General Construction) had waived its right to challenge McGuire' s

testimony about the value of his marina; and ( 2) because the jury already heard the challenged

evidence, General Construction should have mounted an additional objection, a motion to strike


or    a   CR 50       motion    for    a   directed    verdict.    Because General Construction provides no legal


authority to         support    its   assertions,     contrary to RAP 10. 3(      a)(   6), we do not further consider this


argument. Moreover, as we note above, we have already held that the trial court did not abuse its

discretion in admitting McGuire' s testimony.

                                                          C. Jury' s Verdict

           General Construction argues that the trial court erred in not granting a new trial because

the   jury' s       verdict   did   not    do "   substantial   justice."   Br. of Appellant        at   37.    As we have also


previously explained, appellate courts are generally reluctant to interfere with a jury' s damage

award      because the determination                 of   damages is     within   the    province    of   the   jury. Palmer v.

Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 ( 1997). We examine the record to determine whether




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the   jury' s   award   is contrary to the     evidence.       Palmer, 132 Wn.2d         at    197.    Where the jury could

believe or disbelieve the evidence and weigh all of it and remain within the range of the evidence


in returning the challenged verdict, then it cannot be found as a matter of law that the verdict was

unmistakably excessive or inadequate to show that the jury was motivated by passion or

prejudice       based   on   the amount.   James v. Robeck, 79 Wn.2d 864, 870 -
                                                                              71, 490 P. 2d 878 ( 1971).


If the verdict falls within a range of proven damages, it should not be set aside as excessive.


James, 79 Wn.2d at 870 -
                       71.


             CR 59( a)( 9) provides that a motion for new trial may be granted if "substantial justice has

not   been done."        But courts rarely grant a new trial for lack of substantial justice under CR

59( a)( 9) because       of   the   other grounds   afforded under this rule.           Lian v. Stalick, 106 Wn. App.

811, 825, 25 P.3d 467 ( 2001).                Moreover, contrary to RAP 10. 3(                a)(   6), General Construction


provides no authority or citation to the record in support of its argument that " substantial justice

has    not   been done "; instead, it      states, "[   S]   ee prior argument,"      without referring to any specific

prior    argument.        Therefore,     we   do   not    further       consider   General Construction'        s"   substantial



justice" argument. Br. of Appellant at 37.


             In light of the substantial supporting evidence that we have already set forth in an earlier

section of this analysis, we          hold that the      jury' s   award    of $   1. 25 million to Day Island was not

 unmistakably []         excessive" so as to warrant a new trial.             James, 79 Wn.2d          at   870 -
                                                                                                                71. We


further hold that the trial court did not abuse its discretion in denying General Construction' s

motion for a new trial.




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        We affirm.


        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


2.06.040, it is so ordered.




We concur:




W(




Melnick, J.




  J




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