                                                                                                       F' t E D
                                                                                                       OF A, PPEALS
                                                                                                   C', VS, 0if`f lY
                                                                                                            ;  r    a



                                                                                           2 3'1iR1 ffi¢ 2J   AP,


    IN THE COURT OF APPEALS OF THE STATE OF W

                                                DIVISION II


GEORGE WOODS,                                                                No. 438:


                                    Respondent,


         N.



JOHNNY HILL and MELINDA HILL,
husband and wife,                                                     UNPUBLISHED OPINION


                                               ts.


         WORSWICK, C. J. —      Johnny Hill and Malinda Hill appeal the trial court' s judgment

ordering the Hills to pay George Woods damages, after Woods sued the Hills for breach of a

contract for the purchase and sale of a FedEx van and FedEx delivery route. The Hills raised the

affirmative defenses of impossibility, interference with performance, fraud, unclean hands, and

failure to mitigate damages. The Hills also alleged counterclaims of negligent misrepresentation,


intentional misrepresentation, and fraudulent inducement. The Hills now argue that the trial

court erred   in ( 1) refusing to   exclude   Woods'   s witnesses and exhibits, (   2) insufficiently

addressing the Hills' affirmative defenses and counterclaims in its findings of fact and

conclusions of    law, (3) ruling the   contract     completely integrated, ( 4)   ruling that Woods' s failure

to provide the Hills with legal title to the van constituted neither an interference with the Hills'

performance nor a failure to mitigate damages, and ( 5) ruling that the Hills failed to prove with

clear   and convincing   evidence    that Woods      committed   fraud. We find     no error and affirm.
No. 43 824 -1 - II


                                                            FACTS


          George Woods owned both a 1998 model FedEx van and the rights to deliver packages

along a Bainbridge Island FedEx route as an independent contractor. On July 1, 2006, Woods
                                                                                                                               1
contracted   to   sell   both his   van and   his FedEx      route     to   Johnny   Hill   and   Malinda Hill for $85, 000.


          The van' s odometer reading was 470, 192 miles at the time of the sale in 2006. From

2003 until 2006, Woods used the van to deliver packages to his route on Bainbridge Island.

Prior to the sale, Woods had spent thousands of dollars repairing the van. The van had suffered

an accident in 2004, which caused a dent on the bumper. One of the van' s mechanics provided

Woods     with an    invoice that     stated, "[    The   van]   has   reached or exceeded         design intent." Ex. 20 at


Q

                                                                   Johnny2

          Prior to the     July   1, 2006   sale,   Woods told                 that the van was in " good" condition.


Woods based this statement entirely upon the fact that FedEx had conducted its annual

inspection of the van the month before, June 2006, and cleared it for sale.3 Woods did not

inform Johnny that Woods had conducted thousands of dollars in repairs, that the van had

suffered an accident in 2004, or that a mechanic had informed him that the van had " reached or

exceeded     design intent."        Verbatim Report of Proceedings ( VRP) at 145 -47. However, Woods


had told Johnny that the van was 8 years old, with 470, 192 miles on it.


 1
     The Hills worked for years at FedEx as package handlers, but their pre- contract employment
 did not include driving vans to deliver packages.

 2 Because Johnny and Malinda Hill share the same last name, we refer to them where necessary
 by their first names, intending no disrespect.

 3 The FedEx inspections covered visual inspections and a Department of Transportation
 inspection —which         included an inspection of the tires, emergency brake, horn, service lights, and
 lights —but did     not   involve    inspecting     the   engine or undercarriage.
No. 43824 -1 - II



          Johnny wanted to look at the van' s maintenance records prior to the sale. Woods told

Johnny that FedEx had a copy of every maintenance record regarding the van, and that Johnny

should get the records from FedEx. Johnny tried but failed to acquire the records from FedEx,

because FedEx refused to give records to non -owners. Woods testified that he would have

accompanied the Hills to FedEx to view the records. The Hills signed the contract without


gaining access to these records, without conducting their own inspection, without asking Woods

if they could do an inspection, and without conducting any independent investigation.

          The Hills engaged in " ride -
                                      alongs" with Woods, while Woods delivered packages along

the route. The Hills testified that during the ride -alongs with Woods, Woods made the route look

simple to drive, took Johnny only on Bainbridge Island' s primary roads, made it look like the

route was mostly business addresses, intentionally avoided going to all the delivery areas on the

island, and left behind packages at the FedEx terminal to make his route faster. Johnny testified

that Woods made him think that the Bainbridge Island route was small and easy to drive.

Contrarily, Woods testified that he never left behind packages unless his managers instructed

him to do so, and that the route' s delivery addresses changed naturally over the seasons.

A.        The Contract


          The   contract stated   that the Hills took the      van " as   is."   The contract further stated that


  Woods] further believes [ the van] is in good condition and [ the van] has had a [ Department of

Transportation] inspection within the last 30 days and [ the Hills have] been provided with a copy

of said   inspection." Ex. 12     at   3.   The contract explicitly waived Woods' s liability for any claims




                                                           3
No. 43824 -1 - II



arising out of the ride -alongs the parties did together. The contract contained a boilerplate

integration clause.¢


          The   contract provided    that the Hills    would     pay $ 85, 000 for the van and route. The


contract required the Hills to pay principal and interest over five years; payment terms were to be

more    specifically described " in    a   Promissory Note       to be   executed   by [ the   Hills]."   5 Ex. 12 at 2 -3.

Woods testified that the contract did not contain certain payment details that they had discussed

regarding the possibility of the Hills paying the contract price through a military allotment.

          The contract contained a series of missing text between pages. Woods testified that he

had no knowledge of the contract' s missing text prior to trial, and that the text was missing in the
                                                                                       6
final   contract.   No   evidence   in the   record contradicts    this   testimony.

          Woods never transferred the van' s legal title to the Hills. Woods testified that he and the

Hills had agreed that Woods would keep the van' s title. Johnny testified that Woods promised

prior to the sale that he would give Johnny title, but later told Johnny that he wanted to keep the

title. Johnny testified that he " didn' t quite understand [ the refusal to give legal title] but that was

the agreement -      that'   s what [ Woods]    had   come   to as his    agreement    for the   route."    VRP at 108.


          The Hills asked Woods for the title multiple times after the sale, because they wanted to

sell the van. Woods refused to relinquish the title until the contract was paid in full.


4 The contract' s boilerplate integration clause, Ex. 12 at 6, states as follows:

          13. Entire Agreement. This instrument embodies the entire agreement between
          the parties hereto with respect to the transactions contemplated herein and there
          have been and are no agreements, representations or warranties between the
          parties other than those set forth or provided for herein.


 5 No subsequent promissory note by the Hills is in the record.

 6 The record does not contain the substance of the missing text.

                                                             M
No. 43824- 1- 11



B.        The Hills' Problems with the Van and Route


          The Hills had many mechanical problems with the van. The Hills testified that they had

to spend over $80, 000 in various expenses including towing, renting replacement vans, and

eventually purchasing a replacement van.


          The Hills also had problems with the route, including having to service residential

addresses and drive unpaved roads and hills. It took Malinda 12 hours per day to deliver all of

the packages, which was much longer than the 8 hours she experienced when she rode along

with Woods.


          In   July   of   2010 — after Woods'    s   last   refusal   to   provide   title to the   van —the   Hills stopped


making payments on the contract. Woods sued the Hills for breach of contract in May of 2011,

on grounds that the Hills refused to make their last twelve payments. The Hills responded with

affirmative     defenses      of (1)   impossibility, (2)     interference     with performance, ( 3)      fraud, ( 4)


unclean hands, and ( 5) failure to mitigate damages. The Hills also alleged counterclaims of (1)

negligent misrepresentation, ( 2) intentional misrepresentation, and ( 3) fraudulent inducement.

C.        Discovery Dispute

          Woods did not provide the Hills with a list of his witnesses and exhibits until 10 days

before trial, in violation of the case schedule. The Hills moved the trial court to exclude all of


Woods' s witnesses and exhibits under Pierce County Local Rule (PCLR) 16( b).'




7 PCLR 16( b)( 2) requires each party to timely provide a list of witnesses and exhibits for use at
trial,   pursuant     to the deadline that the trial     court establishes       in the  Any witness
                                                                                           case schedule. "

 or exhibit not listed shall not be used at trial, unless the court orders otherwise for good cause
 and subject to such conditions as justice requires."




                                                                  5
No. 43824- 1- 11



          At a pretrial hearing, the Hills argued for exclusion of Woods' s witnesses and exhibits,

claiming that Woods' s willful violation of PCLR 16( b) prejudiced them. However, the Hills

admitted that they had no need to depose any of the late -disclosed witnesses.

          Woods argued that he was preoccupied by other financial concerns, including the loss of

his home, and that because he had moved to Michigan, he struggled to communicate with his

attorney. Woods also argued that all of the witnesses and exhibits that Woods listed in his

untimely official list were also listed in his responses to the Hills' request for discovery.

          After considering both parties' arguments, the trial court ruled that Woods' s violation of

PCLR 16( b) " borderline[ d]        on willful."           VRP ( May 25, 2012) at 19 -20. However, the trial court

imposed a lesser sanction of $1, 000 rather than excluding Woods' s witnesses and exhibits.

D.         Trial Court' s Ruling

           After a bench trial, the trial court ruled in favor of Woods on all claims. The Hills asked

the trial court to include findings and conclusions in its order that addressed their affirmative

defenses and counterclaims. The trial court refused, ruling that it had no obligation to go beyond

what was necessary to support the trial court' s judgment, and that the transcript could explain the

findings and conclusions if necessary.

           The trial court made findings of fact, including:

           c)   The [ Hills] did breach the contract by not paying the last twelve ( 12) payments and
                                                       8
                still [ have] a   duty   to do   so.




           g)   The [ Hills]   made all     their      payments      but twelve ( 12)   payments.   They owe a total of
                nineteen   thousand two hundred                and   forty -
                                                                           eight   dollars   and no /100   ($ 19, 248. 00) in
                back payments.




 8
     The trial court listed this finding in its conclusions of law, rather than its findings of fact.

                                                                     l
No. 43824 -1 - II


          i) [    Woods]       advised the [ Hills] that [ the van] was in good condition at the time of
                 transfer. [   Woods] is not a mechanic, and that was good condition based on the age
                 and amount of usage.




          j) [ Woods] represented that there had been an inspection done by the FedEx company
                 which did take place.


Clerk' s Papers ( CP) at 271 -72. Based upon these findings, the trial court concluded that:

          b)     An enforceable contract was entered into and no fraud or breach of that contract took
                 place on the part of [Woods].


           d)    The contract is clear in that the asset was purchased as is on the date of transfer with
                 no warranties.




           f) It is the parties' intent, from the contract language, that [ parol] evidence is outside of
                 the contract as paragraph 13 makes said contract an integrated agreement.


           g)    The [   parol]   evidence. rule requires us         to   not use[]   extrinsic evidence to modify an
                 integrated contract.


           h     The Court finds that       not   all   nine (   9) elements of fraud exist at a level of clear,
                  cogent],     and convincing [ evidence] with regards to [ Woods' s] misrepresentations as
                 there is no finding offalse representations and no justifiable reliance in this matter.

           i)    The [ Hills]     had the duty to investigate and not sign a contract on blind faith.
                 Therefore, there is no fraud.


           1)    There was no duty on the part of [Woods] to accept the offer to release the security
                 interest in the vehicle and no basis to modify the contract, until the contract was paid
                 in full.


           m) The Court cannot order [ Woods] to take back the [ van] or to sign over the title.

CP   at   272 -73 (   emphasis added).     The trial court elaborated on these sparse findings and


conclusions in an oral ruling.

           Finally, the trial court also awarded Woods $ 4, 000 in reasonable attorney fees based on a

 contract provision. The Hills appeal, seeking reversal of the judgment as well as remand for

more complete findings and conclusions.




                                                                 7
No. 43824 -1 - II



                                                   ANALYSIS


              I. THE HILLS' MOTION TO EXCLUDE WOODS' S WITNESSES AND EXHIBITS


         The Hills argue that the trial court erred in denying their motion to exclude Woods' s

witnesses and exhibits. We disagree.


         The trial court has broad discretion when deciding what sanctions to place upon the

violation of a local rule governing case scheduling. Allied Fin. Servs., Inc. v. Mangum, 72 Wn.

App.    164, 168 -69   n. 4,   864 P. 2d 1, 871 P. 2d 1075 ( 1993).   We will not overturn a trial court' s


decision to sanction a party for violating a local case scheduling rule absent an abuse of

discretion. Allied, 72 Wn. App. at 168 -69. A trial court abuses its discretion when its decision is

              unreasonable, or exercised on untenable grounds, or            for   untenable reasons."   Burnet
 manifestly


v.   Spokane Ambulance, 131 Wn.2d 484, 494 -95, 933 P. 2d 1036 ( 1997) (              quoting Associated

Mortgage Investors        v.   G. P. Kent Constr. Co.,   15 Wn. App. 223, 229, 548 P.2d 558 ( 1976)).

However, the trial court may impose only the least severe sanction adequate to serve its purpose.

Teter v. Deck, 174 Wn.2d 207, 216, 274 P. 3d 336 ( 2012).


          PCLR 16( b)( 2) gives the trial court discretion in fashioning a sanction other than

exclusion of witnesses and exhibits " for good cause and subject to such conditions as justice

requires."    In this case, Woods made a showing of good cause, and the Hills admitted that only

 a slight difference" existed between the witnesses and exhibits listed in Woods' s untimely lists

and the witnesses and exhibits listed in Woods' s discovery responses. Thus, we hold that the

trial court did not abuse its discretion when it denied the Hills' motion to exclude Wood' s

witnesses and exhibits.




                                                           E
No. 43824- 1- 11


     II. SUFFICIENCY OF THE TRIAL COURT' S FINDINGS OF FACT AND CONCLUSIONS OF LAW

       The Hills urge us to remand this case to the trial court for additional findings and


conclusions, arguing that the trial court failed to provide sufficient findings and conclusions

when it refused the Hills' request to more completely address the Hills' affirmative defenses and
                 9
counterclaims.       We disagree.


        CR 52 requires the trial court in a bench trial to " find the facts specially and state

separately its   conclusions of   law."   A trial court' s findings must be sufficiently specific to allow

us to engage in meaningful review. Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303,

314, 291 P. 3d 886 ( 2013).     To be sufficient, the findings and conclusions should allow us to


determine     what material   issues the trial   court   decided,   and   its decision -
                                                                                       making   process.   City of

Tacoma   v.   Fiberchem, Inc., 44 Wn.      App.   538, 541, 722 P. 2d 1357 ( 1986) (     citing Daughtry v. Jet

Aeration Co., 91 Wn.2d 704, 707, 592 P. 2d 631 ( 1979)).              However, the trial court need not make


negative, alternative, or cumulative findings. Daughtry, 91 Wn.2d at 707; Lian v. Stalick, 106

Wn. App. 811, 821, 25 P33d 467 ( 2001).

A.      Affirmative Defenses


        The Hills argue that the trial court erred by failing to resolve the Hills' affirmative

defenses of impossibility, interference with performance, fraud, unclean hands, and failure to

mitigate damages. We disagree.


        We interpret a trial court' s failure to make a finding of fact regarding an affirmative

 defense to mean that the trial court decided against that affirmative defense. Jacobson v.



 9 The Hills ask that this court remand only if the findings prevent us from fully addressing their
 claims on appeal.




                                                            9
No. 43824- 1- 11


Lawrence, 9 Wn.        App.   786, 788, 514 P. 2d 1396 ( 1973).            Here, the trial court failed to make any

factual findings regarding the Hills'       affirmative     defenses — such as interference with performance


and mitigation of damages. We hold that the lack of factual findings constitutes the trial court' s

decision against the Hills' affirmative defenses. Jacobson, 9 Wn. App. at 788.

B.      The Hills' Counterclaims


        The Hills argue that the trial court erred in failing to address their counterclaims for

fraudulent inducement, negligent misrepresentation, and intentional misrepresentation. We

disagree.


        False      representation and   justifiable   reliance are required elements of all          three   claims.   W.


Coast, Inc.   v.   Snohomish    County,   112 Wn.      App.   200, 206, 209 -10, 48 P. 3d 997 ( 2002). Here,


the trial court concluded that


            not all nine ( 9) elements of   fraud     exist at a   level   of clear, [ cogent],   and convincing
         evidence] with regards to [ Woods' s] misrepresentations as there is no finding offalse
        representations and no justifiable reliance in this matter."

CP at 273 ( emphasis added).


        This conclusion addresses all three of the Hills.' counterclaims by addressing false

representation and justifiable reliance, which are required elements of all three claims. See West

Coast, Inc.,    112 Wn. App. at 206, 209 -10. Thus we hold that the trial court' s findings and

conclusions are sufficient for us to review the Hills' claims.




                                                            10
No. 43.824 -14I



                                            III. CONTRACT CLAIMS


          The Hills argue that the trial court erred in ruling in favor of Woods on their contract

claims. We disagree.


          In reviewing a trial court' s decision after a bench trial, we determine whether substantial

evidence supports the findings of fact and, if so, whether the findings support the conclusions of

law and the judgment. SAC Downtown Ltd. P' ship v. Kahn, 123 Wn.2d 197, 202, 867 P. 2d 605

 1994).      The party claiming error has the burden of showing that a finding of fact is not

supported     by   substantial evidence.   Fisher Props. Inc.      v.         Mayfair Inc., 115 Wn.2d 364,
                                                                        Arden -


369, 798 P. 2d 799 ( 1990).      Substantial evidence is a " 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).


          Where the trial court erroneously labels a finding of fact as a conclusion of law, we

review it as a finding of fact. Scott's Excavating Vancouver, LLC v. Winlock Props., LLC, 176

Wn.   App.     335, 342, 308 P. 3d 791 ( 2013),    review      denied, 179 Wn.2d 1011 ( 2014). Where the


trial court erroneously labels a conclusion of law as a finding of fact, we review it as a

conclusion of law. Scott's Excavating Vancouver, LLC, 176 Wn. App. at 342.

          We view all evidence and inferences in the light most favorable to the prevailing party.

Lewis   v.   Dept of Licensing, 157 Wn. 2d 446, 468, 139 P. 3d 1078 ( 2006). We defer to the trial


court' s determinations on issues of conflicting evidence, witness credibility, and persuasiveness

of the evidence. Scott's Excavating Vancouver, LLC, 176 Wn. App. at 342 ( citing City of Univ.

Place   v.   McGuire, 144 Wn.2d 640, 652, 30 P. 3d 453 ( 2001)).               When the trial court' s findings are


susceptible of two constructions, one that supports the conclusions of law and one that does not,




                                                             11
No. 43824 -1 - II



we construe the findings in the manner that supports the trial court' s conclusions of law. Lincoln

Shiloh Assoc., Ltd. v. Mukilteo Water Dist., 45 Wn. App. 123, 131, 724 P. 2d 1083 ( 1986).

A.      Contract Integration


        The Hills argue that the trial court erred in finding that the contract with Woods was a

complete integration of the parties' agreement. We disagree.

        The trial   court' s conclusion of       law " f,"that    the contract was integrated, is actually a

finding of fact subject to substantial evidence review. Emrich v. Connell, 105 Wn.2d 551, 556-
57, 716 P. 2d 863 ( 1986);       see also S. Kitsap Family Worship Ctr. v. Weir, 135 Wn. App. 900,

907, 910, 146 P. 3d 935 ( 2006). Thus, we review the contract' s integration for substantial


evidence as a finding of fact. Scott's Excavating Vancouver, LLC, 176 Wn. App. at 341 -42.

        A written contract is completely integrated if the parties intended it to constitute a final

expression of their agreement' s terms. Berg v. Hudesman, 115 Wn.2d 657, 670, 801 P. 2d 222

 1990). "    The parol evidence rule precludes the use of extrinsic evidence to add to, subtract from,

            or contradict   the terms   of a   fully   integrated   written contract."   Brogan & Anensen LLC v.
modify,


Lamphiear, 165 Wn.2d 773, 775, 202 P. 3d 960 ( 2009). We must consider all relevant oral and


written extrinsic evidence, and determine whether the writing has incorporated the entire

agreement.     Lopez   v.   Reynoso, 129 Wn.       App.    165, 171, 118 P. 3d 398 ( 2005). However, mistakes


in grammar, spelling, or punctuation do not change our interpretation of the parties' intent.

Sackman Orchards v. Mountain View Orchards, 56 Wn. App. 705, 707, 784 P. 2d 1308 ( 1990)

 citing Schauerman v. Haag, 68 Wn.2d 868, 873, 416 P. 2d 88 ( 1966)).

          Boilerplate integration clauses provide strong evidence of integration. King v. Rice, 146

 Wn.   App.   662, 670   n.   17, 191 P. 3d 946 ( 2008);     See also S.D. Deacon Corp. of Washington v.



                                                             12
No. 43824 -1 - II



Gaston Bros.      Excavating, Inc.,       150 Wn.       App.   87, 94, 206 P. 3d 689 ( 2009). But an agreement


                                                                            integration   clause —if    the clause is false
may be only partially integrated —notwithstanding                      an




boilerplate, such that enforcement would amount to an endorsement of fraud. Denny's Rests.,

Inc.   v.   Sec. Union Title Ins. Co., 71 Wn.           App.   194, 203, 859 P. 2d 619 ( 1993);           S. Kitsap Family

Worship       Or.,   135 Wn. App. at 907. To determine whether a contract is false boilerplate, we

consider " whether [ a] prior agreement was the inducing and moving cause of the final contract,

whether a prior agreement formed part of the consideration for the final contract, and whether the

final   contract was executed on          the   faith   of [a] prior agreement."          S. Kitsap Family Worship Ctr.,

135 Wn. App. at 907.

            In this case, the trial court based its finding of fact that the contract was integrated on the

contract' s integration clause. Integration clauses provide strong evidence of integration. King,

146 Wn.       App.   at   670   n. 17; see also   S.D. Deacon      Corp.     of Wash.,     150 Wn. App. at 94. To the

extent that any other evidence conflicts with this strong evidence, we defer to the trial court' s

determination that the integration clause was more persuasive. Scott's Excavating Vancouver,

LLC, 176 Wn. App. at 341 -42.

             Woods testified that the contract did not contain certain payment details that they had

discussed —regarding            the possibility of the Hills paying the contract price by Johnny setting up a

military allotment. But this demonstrates only that the parties were discussing the possibility of

a future agreement adding to the written contract, not that they had made a prior agreement

affecting the written contract. These possible future agreements do not affect the contract' s

integration      as a prior agreement would.             See S.   Kitsap Family Worship         Ctr.,   135 Wn. App. at

 907. Thus substantial evidence supports that the contract was a complete integration, with an




                                                                  13
No. 43 824 -1 - II


agreement to agree later as to the payment details, rather than a prior agreement that was critical


to the formation of the final contract.


          The contract had numerous typographical errors, including missing text between pages.

However, Woods testified that the contract' s missing text was missing in the contract that the

parties signed, and no evidence contradicted that testimony. This provides substantial evidence

that the missing pieces of the contract were not part of the parties' actual agreement. We hold

that substantial evidence supports the trial court' s finding that the contract was a complete

integration.


B.        Interference with Performance and Mitigation ofDamages

          The Hills next argue that the trial court erred in. concluding that Woods had no duty to

deliver the van' s legal title to the Hills. The Hills argue that Woods' s failure to provide legal

title   constituted an   interference   with   the Hills'   performance ( of   paying the   contract price).   The


Hills also argue that Woods' s failure to provide legal title constituted a failure to mitigate

damages, because the Hills could have continued paying the contract price if Woods had

provided the Hills with legal title. We disagree.


           Every contract contains an implied covenant of good faith and fair dealing, including a

duty to not interfere with the other party' s performance. State v. Trask, 91 Wn. App. 253, 272-
73, 957 P. 2d 781 ( 1998).      A contract party' s interference with the other party' s performance

 discharges the other party' s duty. Jones Assocs., Inc. v. Eastside Props., Inc., 41 Wn. App. 462,
 471, 704 P. 2d 681 ( 1985).


           However, the implied duty to not interfere with performance does not impose a " duty to

 affirmatively assist in the    other   party'   s performance."    Trask, 91 Wn. App. at 272 -73



                                                             14
No. 43824 -1 - II



Furthermore, the duty does not require the party to materially alter their agreement' s terms or to

add additional terms to the agreement. Badgett v. Sec. State Bank, 116 Wn.2d 563, 569, 807

P. 2d 356 ( 1991).    Rather, the duty to not interfere with performance arises only in connection

with obligations imposed by the parties' contract. Badgett, 116 Wn.2d at 569.

          Additionally, a party injured by another party' s breach of contract has a duty to prevent

future harm by mitigating damages. Smith v. King, 106 Wn.2d 443, 450 -51, 722 P. 2d 796

 1986).    The duty to mitigate " prevents recovery for those damages the injured party could have

avoided    by   reasonable efforts   taken   after   the wrong   was committed."   Bernsen v. Big Bend Elec.

Coop.,    Inc., 68 Wn.   App. 427,   433, 842 P. 2d 1047 ( 1993).      However, a duty to mitigate damages

does not require a party to modify the contract. See Waldrip v. Hill, 70 Wash. 187, 190 -91, 126

P. 409 ( 1912).


          Mitigation of damages and interference with performance are affirmative defenses, and

thus the party raising that defense has the burden of proof. Fed. Signal Corp. v. Safety Factors,
Inc., 125 Wn.2d 413, 416, 433 -34, 48, 886 P. 2d 172 ( 1994); see Jones Assocs., Inc., 41 Wn.


App. at 471 -72. The trial court in this case failed to make a finding regarding these affirmative
defenses, and we consider this omission as a decision against those defenses. Jacobson, 9 Wn.

App. at 788.

          Here, Woods testified that he and the Hills agreed, prior to signing the contract, that

Woods would not give the Hills legal title. The Hills do not contradict this testimony; Johnny

admitted that Woods told him that Woods wanted to keep the title to the van prior to the date the

parties signed the contract.




                                                           15
No. 43824 -1 - II



           We hold that the trial court correctly concluded that delivery of legal title was not part of

the parties' agreement, and that thus Woods had no duty to provide legal title. These conclusions

preclude the Hills' affirmative defenses of interference with performance and mitigation of


damages as a matter of law, because both doctrines' duties are limited to the contract' s

requirements. Thus, Woods did not interfere with the Hills' performance or fail to mitigate his

damages by not providing the Hills with the van' s legal title. See Badgett, 116 Wn.2d at 569;

Waldrip, 70 Wash. at 190 -91.

C.         Fraud


           The Hills argue that the trial court erred when it concluded that the Hills failed to prove

with clear and convincing evidence that Woods had committed fraud. We disagree.

           A party claiming fraud must prove nine elements with clear and convincing evidence,

which is the equivalent of saying that the ultimate fact in issue must be shown to be " highly

probable."     Douglas Nw. Inc.         v.   Bill O' Brien &       Sons Constr. Inc., 64 Wn. App. 661, 678, 828

P. 2d 565 ( 1992).       We review the trial court' s findings of fact on the elements of fraud for


substantial evidence in light of this " highly probable" test. Douglas Nw. Inc., 64 Wn. App. at



           Fraud' s   nine elements are: (        1)    representation of an         existing fact, ( 2) materiality, ( 3)


falsity, (4)   speaker' s    knowledge       of   its   falsity, ( 5) speaker' s intention that it shall be acted upon

                                                            ignorance        falsity, ( 7)   the                    s reliance, ( 8)   the
by   the   other   party, ( 6) the   other   party'     s               of                         other   party'


 other party' s right to rely, and ( 9) the other party' s damages. Hoffer v. State, 110 Wn.2d 415,
 425, 755 P. 2d 781 ( 1988); Douglas Nw., 64 Wn.                        App.   at   678. We hold that the conclusion of


 law that the Hills failed to prove fraud with clear and convincing evidence was supported by the



                                                                   16
No. 43824 -1 - II



               fact that there              finding        false                         in this   matter,"   and that
finding   of                     was " no             of           representations ...




sufficient evidence supported that finding. CP at 273.

          1.   Conclusion ofLaw: The Hills Failed To Establish Fraud

          The trial court' s conclusion of law that the Hills could not establish fraud' s nine elements

with clear and convincing evidence is supported by its finding of fact that there was " no finding

offalse   representations ...        in this   matter."    We interpret this finding of fact to constitute a

finding of fact that Woods did not make false representations with regard to the contract. See

Lincoln Shiloh Assocs., Ltd., 45 Wn. App. at 131.

          2. Finding ofFact: Woods Made No False Representations with Regard to the Contract

          The trial court' s finding of fact that Woods did not make false representations with regard

to the contract is supported by substantial evidence. ' This is true regarding both the van and the

route.




          Regarding the van, the only statement that the Hills allege Woods made was that the van

was in " good" condition. Substantial evidence supports that this statement was true for three

reasons.




          First, the van' s disclosed mileage of 470, 192 supported the truth of Woods' s statement.

This is because " good" is a relative term, and for a van of 470, 192 miles, the fact that it operated

at all could be construed as " good" condition. Second, the trial court found that FedEx had

 inspected the     van prior     to Woods selling it to the Hills. 10       Third, Woods testified at trial that he

 did not make any false statement in forming the contract to sell the van. This is substantial


 10 The testimony conflicted on whether the FedEx inspection had occurred. The trial court found
 that it did occur, resolving this conflict in favor of Woods.



                                                               17'
No. 43824- 1- 11



evidence that Woods' s statement that the van was in " good" condition was true, given the clear


and convincing evidence standard against the Hills. See Douglas Nw., 64 Wn. App. at 678.

       Substantial evidence also supports that Woods did not make false statements regarding

the route. Woods testified that he did not leave packages behind on his ride -
                                                                             alongs unless his

managers instructed him to do so, that the route' s delivery addresses changed naturally over the

seasons, and that he never made false statements to the Hills. The Hills dispute this testimony,

but the trial court resolved this dispute in favor of Woods, and we defer to the trial court' s


credibility determination. Scott's Excavating Vancouver, LLC, 176 Wn. App. at 342. The trial

court' s conclusion of law that the Hills failed to prove fraud with clear and convincing evidence

is supported by the finding of fact that Woods made no false statements in regard to the contract,

and that finding of fact is in turn supported by substantial evidence. Thus, we hold that the trial

court did not err in dismissing their counterclaim.

        In summary, we hold that the trial court did not abuse its discretion in refusing to exclude

Woods' s witnesses and exhibits, and provided sufficient findings and conclusions for this court

to engage in meaningful review. We hold that the parties' contract was a complete integration,

Woods did not interfere with the Hills' performance, and Woods had no duty to mitigate the

Hills' damages. Finally, we hold that the Hills failed to prove fraud with clear and convincing

evidence. We affirm.


                                          ATTORNEY FEES


        Both the Hills and Woods request attorney fees on appeal. A contract, statute, or

 equitable grounds must authorize an attorney fee award. City ofSequim v. Malkasian, 157

 Wn.2d 251, 271, 138 P. 3d 943 ( 2006).   When a contract provides that attorney fees and costs



                                                   18
No. 43824 -1 - II



shall be awarded to one of the parties, former RCW 4. 84. 330 ( 1977) states that " the prevailing

party ...     shall be entitled to reasonable [ attorney] fees in addition to costs and necessary

disbursements."


            In this case, the contract states that the prevailing party " shall be entitled to its reasonable

costs,   disbursements        and []   attorney fees ., ..   together with all expenses which it may reasonably

incur." Ex. 12      at   6.   Thus we award fees and costs to the prevailing party, which in this case is

Woods.


            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.




                                                                                    orswick, C. J.
We concur:




                                                                 M,
