                                                              FILED
                                                            JUNE 2, 2015
                                                    In the Office of the Clerk of Court
                                                  W A State Court of Appeals, Division III


          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


BURGESS VINEYARDS, LLC, a                     )            No. 32199-1-III
Washington Limited Liability Company,         )
                                              )
                      Respondent,             )
                                              )
               v.                             )            UNPUBLISHED OPINION
                                              )
PAUL BEVERIDGE and JANE DOE                   )
BEVERIDGE, husband and wife, dba              )
WILDRIDGE WINERY & VINEYARD,                  )
                                              )
                      Appellants.             )

       LAWRENCE-BERREY, J. - Robert Paul Beveridge appeals a monetary judgment

entered against him in favor ofPaul Burgess. He contends the trial court erred by

concluding that a late fee provision in the parties' contract was valid and enforceable.

Specifically, he argues that the provision was an unenforceable penalty, the contract

improperly modified the parties' original agreement, the contract is procedurally

unconscionable, and that he is not personally liable to Mr. Burgess. We disagree and

affIrm the trial court.
No. 32199-1-111
Burgess Vineyards v. Beveridge


                                          FACTS

       Robert Paul Beveridge, the owner of Wildridge Winery Vineyard in Seattle,

Washington, and Paul Burgess, the owner of Burgess Vineyards, LLC, in Pasco,

Washington, are both experienced businessmen. Mr. Burgess had been growing grapes

since 1982. Mr. Beveridge, who has been a licensed attorney since 1985, formed

Tapenade, Inc., a winemaking business, in 1988.

       On September 28, 2010, Mr. Beveridge contacted Mr. Burgess via e-mail about the

price of Mr. Burgess's Pinot Gris grapes. The next day, at 5:21 a.m., Mr. Burgess

responded via e-mail that the sale price was $900 per ton. At 9:02 a.m., Mr. Beveridge

responded: "Ok, let's plan to pick it on Friday or Saturday morning. 1 am working on

setting up transportation. . .. Please send me directions to the vineyard, thanks." Ex. 2.

Later that morning, Mr. Burgess wrote, "Thank you for purchasing my Pinot Gris

winegrapes.... If you have any questions or concerns, please make sure that you

communicate them with me personally .... Attached is the contract. Please review, sign

and fax the signed contract to me tonite or tomorrow. 1 will look forward to hearing from

you tomorrow so 1 can arrange my picking crew either Fri. or Sat. for a full day of

harvesting." Ex. 2.




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Burgess Vineyards v. Beveridge


         The e-mail included an attached contract stating that Mr. Burgess agreed to sell

and Mr. Beveridge agreed to buy seven tons of hand-picked Pinot Oris at $900 per ton for

a total order of $6,300. The contract also provided that Mr. Beveridge would pay a

$2,000 deposit on the day of the harvest and the balance before December 15,2010. In

addition to the sale price and quantity of grapes, the Burgess contract provided for late

fees and interest as follows:

         I (we) agree to the credit condition that should this contract or any
         associated monthly statement not be paid in full by the due date, a late fee
         of $200 per month in addition to a monthly finance charge of 1.5% (18%
         annual percentage rate) of the balance due, will be assessed and the account
         will be considered delinquent on C.O.D. terms.

Ex. 1.

         On September 30,2010, Mr. Beveridge acknowledged receipt of the Burgess

contract, but advised Mr. Burgess, "I think the contract you attached is more appropriate

for an annual contract rather than a spot deal. I have attached a draft that is more to the

point. Please let me know if this is acceptable." Ex. 2. The purchase agreement

submitted by Mr. Beveridge provided that "we agree ... [t]o purchase 7 ton of Burgess

Pasco Vineyard Pinot Oris and pay $900.00 per ton for it for a total price of $6,300." Ex.

2. It also stated that "[w]e will pay $2,000 of the purchase price on the date of harvest

and the remaining $4,300 before December 15, 2010." Ex. 2. It did not include a late fee



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No. 32199-1-III
Burgess Vineyards v. Beveridge


or finance charge provision.

       On October 1,2010, Mr. Beveridge drove to Pasco, Washington, in a rented truck

to pick up the grapes. He told Mr. Burgess that he preferred his own contract, but signed

Mr. Burgess's contract and waited another day for Mr. Burgess's work crew to pick the

grapes before returning to Seattle.

       Mr. Beveridge paid the $2,000 down payment, but did not pay the balance by

December 15. On December 22,2010, he sent an e-mail to Mr. Burgess, stating "we are

still waiting for our refund check from the IRS [Internal Revenue Service]. As soon as

we receive the refund, we will pay all of our grape bills." Ex. 2. On February 10,2011,

at 7:50 p.m., Mr. Burgess wrote, "Your statement is attached. Please remit payment at

your earliest convenience." Ex. 2. A little later that evening, Mr. Beveridge wrote, "The

check went out earlier this week. Please let me know if you do not have it by Monday."

Ex. 2. Mr. Burgess then sent an invoice dated March 1,2011, which alleged that Mr.

Beveridge owed $815.86 in interest and late fees. The letter stated:

      I have attached the Contract for Grapes signed 10/1/10 that outlines the
      finance charges and late fees that would be assessed if payments were
      untimely. Per our telephone conversation, I understand that you were
      waiting for your IRS check in order to pay the Invoice under this contract in
      full. However, that was not our agreement. Even though waiting for my
      payment was not to my liking, I am now following our agreement of late
      payments and interest.



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Burgess Vineyards v. Beveridge


       Attached is a Statement with updated late charges and interest per the
       signed Contract Agreement. Please know that this takes extra time and
       money on my part to keep track of the charges.

       Please make your final payment before March 15 th in full, or you will incur
       additional interest and another $200 late fee.

Ex. 3. The statement also indicated that the $4,300 balance had been paid on

February 10, 2011.

       The parties did not communicate again until January 23,2012, when Mr. Burgess

e-mailed an invoice to his attorney, which was forwarded to Mr. Beveridge, prompting

him to respond, "1 am sorry that you feel that you should continue pursuing this matter.

Your position is not commercially reasonable, particularly for a spot market purchase at

the end of harvest. I was very clear to you from the beginning that we could not pay for

the grapes until we received our IRS refund. We have never paid interest to any other

grower in our over 20 year history." Ex. 2.

       Mr. Burgess filed a lawsuit on April 17, 2012, asking for $3,334.62 with additional

late fees and expenses after January 15, 2012. At trial, Mr. Burgess testified that he and

Mr. Beveridge agreed that Mr. Beveridge would put $2,000 down and pay the balance on

December 15,2010. He characterized Mr. Beveridge's claim that he told Mr.
                                                                      ., Burgess
that payment of the balance would occur after receipt of a tax refund as "pure

fabrication." Report of Proceedings (RP) at 60. Mr. Burgess explained that he "rarely"

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 No. 32I99-I-III
 Burgess Vineyards v. Beveridge


 sells grapes on credit "[b]ecause you don't get paid." RP at 15. He also testified that

 while they were waiting for the grapes to be picked, Mr. Beveridge pushed a different

 contract at him, stating'" [t]his is more appropriate.'" RP at 17. Mr. Burgess denied

 signing Mr. Beveridge's contract. According to Mr. Burgess, Mr. Beveridge stated that

 he preferred his own contract, but Mr. Burgess responded that this was his standard

. contract, and that Mr. Beveridge signed it. Mr. Burgess was emphatic that he would not

 have allowed the grapes to be picked if Mr. Beveridge had not signed the contract.

        During cross-examination, Mr. Burgess explained that part of the reason for the

 $200 late fees is to induce timely payment. He testified that he stopped dealing with the

 buyers who would not pay pursuant to the contract, stating, "They pay when they feel like

 it. And I have to pay my workers, not when I feel like it. . .. [W]hen I get a

 winemaker/lawyer that doesn't want to pay according to the agreement, that adds a lot of

 stress." RP at 31.

        Mr. Beveridge countered that the parties had two agreements and that "only the

 terms that are common to both agreements may be enforced as a matter of law, because

 those are the only terms where there was a meeting of the minds." RP at 11. He testified

 that he thought the parties had reached an agreement on September 29,2010, that he was

 going to buy seven tons of grapes at $900 a ton and "in reliance on that I was going to


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No. 32199-I-III
Burgess Vineyards v. Beveridge


rent a truck, drive it out there and pick up the grapes." RP at 40. He admitted that he

read Mr. Burgess's contract "a couple of days beforehand," but found it the "most

outrageous and one-sided contract I had ever seen in my experience." RP at 53, 41. He

claimed that he felt "tricked" when Mr. Burgess insisted he sign the contract, but that he

signed it because he felt threatened and outnumbered: "I was concerned. I was in the

middle of nowhere, a place I'd never been before. It was 200 miles from home. Mr.

Burgess was very adamant, and he had his crew behind him, and so I signed the

agreement, the second contract, knowing there's no meeting of the minds on any of the

issues." RP at 43. He also testified that he felt physically threatened because seven or

eight of the workers "were watching us having our little discussion at the back of the

truck. I just wanted to get out of Dodge. . .. [I]t would have been very uncomfortable if I

hadn't signed the contract." RP at 43. Mr. Burgess stated:

      ... [The workers] don't even know my name. I call a few people that I
      know, and they do me the favor of calling their friends or people, and they
      come and pick grapes. I pay them. . . . They picked the grapes, and then
      they left. Generally most of the laborers don't even know who I am. They
      don't have any loyalty to me. I pay them an hourly wage. They pick the
      grapes. They do their job. I pay them .



      . . . We're not thugs. We're grape growers, and those guys work hard 

      picking. It's very hard work. 



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No. 32199-I-III
Burgess Vineyards v. Beveridge


RP at 59-60.

       Mr. Beveridge testified that he told Mr. Burgess that his ability to pay was

dependent on receiving a tax refund, stating, "I remember telling [Mr. Burgess] that

December 15th was the goal but that I was not in control of when I would receive the IRS

check." RP at 45. He also claimed that he and Mr. Burgess did not discuss penalties.

During argument, counsel for Mr. Beveridge argued that a $200 per month late fee was an

unconscionable penalty, stating "[t]his is literally the Rumpelstiltskin case. $80 worth of

straw, and I'm going to spin that into 7500 bucks because he signed my agreement and

therefore it's binding. Well, it's not." RP at 70.

       The court concluded that the contract was enforceable and the monthly late fee

was appropriate to account for the time and inconvenience of collecting on a delinquent

account. The court did not find the contract unconscionable, noting that although the

terms were "strict," they were warranted by the realities of the business and the need to

account for "the stress, the time it took to prepare the invoices, and the hassle of having to

collect." RP at 80. The court also rejected Mr. Beveridge's argument that he feared for

his physical safety, stating, "The Court does not find that to be a reasonable fear and does

not believe that it is or was coercive. Oftentimes farmers have a number of people ...

running around doing a whole host of different things. In this case they were workers


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No. 32199-1-III
Burgess Vineyards v. Beveridge


who were picking grapes, in fact picking grapes for Mr. Beveridge." RP at 78.

       As to Mr. Beveridge's testimony that he told Mr. Burgess that he could not pay

until he received a tax refund, the court found it significant that neither contract reflected

this point, stating, "[Y]ou can't modifY this contract with a statement by one side saying

that this happened when in fact, even his own agreement, does not indicate that." RP at

79. The court also found it significant that Mr. Beveridge is an attorney and "presumably

understands contracts and understands what the terms are. So when he signed that

document, he understood what it meant and what the penalties were if he did not comply

with it." RP at 79.

       The court entered written findings of fact stating that (1) the parties verbally

agreed about the price, tonnage, and quantity of grapes to be sold; (2) the written contract

on the form provided by Burgess Vineyard and all the attendant terms was the agreement

that was reached by the parties on October 1,2010; (3) Mr. Beveridge, as a licensed

attorney in Washington, was familiar with contracts and the terms of this contract,

including his personal guaranty; (4) Mr. Beveridge's testimony about an income tax

refund was not credible; (5) if such a discussion occurred, it should have been

memorialized; (6) Mr. Beveridge breached the payment provisions; (7) the $200 late fee

provision was a reasonable charge; and (8) the amount due as of April 15, 2013, was



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No. 32199-I-III
Burgess Vineyards v. Beveridge


$7,506.92.

                                        ANALYSIS

       Whether the trial court erred in concluding the contract was enforceable.

       The primary issue before us is whether the trial court erred in upholding the late

fee provision in the Burgess contract. Mr. Beveridge contends that the late fee provision

is an unenforceable penalty unrelated to actual damages. He also argues that the contract

constitutes a modification unsupported by additional consideration, the contract is

procedurally unconscionable, and that he is not personally liable to Mr. Burgess. We

evaluate each of these arguments in tum.

       Unenforceable Penalty

       Mr. Beveridge first asserts that the trial court erred in concluding that the $200

monthly late fee was a reasonable charge that accounted for the time and inconvenience

of collecting on a delinquent account. Specifically, he argues that the late fee is an

unenforceable penalty because it is designed as a punishment for default, rather than as

compensation for actual damages. Mr. Beveridge contends that Mr. Burgess cannot point

to any actual financial loss as a result of the late payment and that he failed to provide a

rational basis for setting the amount at $200 per month. He argues, "Burgess lost $80.37

in statutory interest on the $4,300.00 he was owed for 57 days. Nevertheless, he wants to



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Burgess Vineyards v. Beveridge


be compensated, on a monthly basis, by way of a late fee charge which is 2.5 times

greater that his actual loss." Br. of Appellant at 15 (emphasis in original).

       "Whether an enforceable contract exists is a question of law that we review de

novo." Tau/en v. Estate o/Kirpes, 155 Wn. App. 598, 603,230 P.3d 199 (2010). "In

Washington, a provision for liquidated damages will be upheld unless it is a penalty or

otherwise unlawful." Wallace Real Estate Inv. Inc. v. Groves, 124 Wn.2d 881, 886, 881

P .2d 1010 (1994). A liquidated damages agreement that is fairly and understandably

entered into by experienced parties, with a view to just compensation for the anticipated

loss, should be enforced. Walter Implement, Inc. v. Focht, 107 Wn.2d 553, 558, 730 P.2d

1340 (1987). A liquidated damages provision permits parties to allocate risks, lend

certainty to the parties' agreements, and permits parties to resolve disputes in the event of

a breach. Watson v. Ingram, 124 Wn.2d 845, 851, 881 P.2d 247 (1994).

       In determining whether a liquidated damages provision is enforceable, the court

looks to whether the provision is a reasonable prospective estimate of loss. Wallace, 124

Wn.2d at 897. The party seeking to enforce a liquidated damages provision does not need

to prove actual damages. Id. at 893. However, a provision that bears no reasonable

relationship to actual damages will be construed as a penalty. Walter Implement, 107

Wn.2d at 559 (quoting Nw. Collectors, Inc. v. Enders, 74 Wn.2d 585,594,446 P.2d 200


                                             11 

No. 32199-1-III
Burgess Vineyards v. Beveridge


(1968)). The reasonableness of the prospective estimate of loss is judged as of the time

the contract was entered. Id. at 559. If there is any reasonable relationship, the liquidated

damages clause must be enforced. Brower Co. v. Garrison,2 Wn. App. 424, 432-33, 468

P.2d 469 (1970).

       Applying these principles, the trial court did not err in upholding the late fee.

Contrary to Mr. Beveridge's position, the fact that the late fee provision had a potentially

coercive effect does not necessarily render it a penalty. We also look at other factors,

bearing in mind that an appropriate late fee provision may compensate for the expense

and inconvenience of collecting a late payment or as incentive to timely pay. As Mr.

Burgess observed, "Grape growers are not debt collectors. In order to collect on debts, a

grape grower must perform a myriad of administrative functions that have nothing to do

with growing and picking grapes." Br. ofResp't at 10.

      A significant, if not dispositive, factor in this case is Mr. Beveridge's

sophistication. In determining the reasonableness of a liquidated damages provision, we

consider the bargaining power and experience of the parties, recognizing that "[t]he

sophistication factor may point to the increased enforceability of liquidated damages

provisions in commercial agreements." Wallace, 124 Wn.2d at 896. In Wallace, the

buyer, a businessman with experience negotiating and writing purchase and sales


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No. 32199-1-III
Burgess Vineyards v. Beveridge


agreements, challenged a liquidated damages provision as an unenforceable penalty.

Wallace, 124 Wn.2d at 896-97. In upholding the provision, the court found the buyer's

sophistication a factor of "particular significance in discussing the reasonableness of

these extension payments." Id. at 896. The court concluded that the buyer's expertise not

only supported the enforceability of the liquidated damages provision, but also

"highlight[ed] the inequity of allowing him to now challenge the provisions as penalties

simply because they constitute too large a percentage of the contract price." Id. at 897.

       Other cases have also found party sophistication a particularly relevant factor in

determining the reasonableness of a liquidated damages provision. For example, in

Walter Implement, the Supreme Court upheld a liquidated damages provision, citing the

"experienced, equal parties." Walter Implement, 107 Wn.2d at 558. Similarly, in Brower,

the court found the fact that the parties "were all experienced businessmen" a significant

factor in supporting the reasonableness of the liquidated damages provision. Brower,

2 Wn. App. at 434.

      Here, both Mr. Burgess and Mr. Beveridge have been involved in the wine

business for over 20 years. Mr. Beveridge has been licensed to practice law since 1985

and has been in the wine business since 1988. As an attorney and businessman, he

presumably has experience with purchase and sale contracts. Although he claims that in



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No. 32199-1-III
Burgess Vineyards v. Beveridge


all of his years in the wine business he has never seen a late fee provision, Mr. Beveridge

should know that there are administrative costs associated with recovering past due

amounts.

       Moreover, Mr. Beveridge testified that he read the contract before signing it. The

contract unambiguously provided for late fees and given Mr. Beveridge's experience, we

presume that he understood the terms of the contract and the penalties for noncompliance.

The amount the experienced parties signed off on, $200 per month, is a reasonable

forecast of potential damages and allowed the parties to allocate risk. It would be unfair

to allow a lawyer and businessman with Mr. Beveridge's expertise to challenge the

provision as an unfair penalty because he thinks the amount is excessive. "[A]n

agreement fairly and understandingly entered into with a view to just compensation for an

anticipated loss should ... be enforced." Nw. Collectors, 74 Wn.2d at 594. Under our

facts, the late fee provision was reasonable and therefore enforceable. The trial court

properly factored in Mr. Beveridge's sophistication and correctly ruled that the late fees

and finance charges were reasonable sums for servicing a delinquent account.

       Modification

      Mr. Beveridge next argues that the Burgess contract is a modification of the

parties' original agreement, which he claims was limited to the price and quantity of the


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No. 32199-1-III
Burgess Vineyards v. Beveridge


grapes. He argues that the Burgess contract modified the parties' agreement by adding a

personal guaranty, the late fee and interest provisions, and a one-sided attorney fees

clause. Citing Tacoma Fixture Co. v. Rudd Co., 142 Wn. App. 547, 174 P.3d 721 (2008),

Mr. Beveridge maintains that any terms outside of the original agreement must be

supported by additional consideration and only those terms common to both agreements

may be enforced.

       However, Mr. Beveridge points to no evidence that undermines the court's finding

that the Burgess contract represented the complete agreement of the parties. Ifhe did not

wish to be bound by the terms of the contract, he should not have signed it. He could

have made an unequivocal objection and returned to Seattle. Instead, he signed the

contract and allowed the grapes to be picked and loaded in his truck.

       Moreover, Tacoma Fixture does not help him. The issue in that case was whether

additional terms included in an invoice became part of the contract. Id. at 554. The court

held that because the parties had orally formed a contract before the invoice was received,

the invoicing party could not unilaterally modify the contract through the addition of

terms in its invoices. Id. at 554-55. The Tacoma Fixture court analyzed the issue under

Uniform Commercial Code (UCC) § 2-207, which applies where there has been no

express acceptance of terms on conflicting forms offered by the parties to an agreement.



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No. 32l99-l-III
Burgess Vineyards v. Beveridge


Where, as here, the terms of a contract were expressly accepted, the discussion involves

contract formation under RCW 62A.2-204, not alteration under RCW 62A.2-207. MA.

Mortenson Co. v. Timberline Software Corp., 140 Wn.2d 568,579-80,998 P.2d 305

(2000).

       However, even if we assume, without deciding, that the Burgess contract is a

modification of the parties' existing agreement, it is still enforceable. Washington's

version of the UCC states that "[a]n agreement modifying a contract within this Article

needs no consideration to be binding." RCW 62A.2-209. The parties must only abide by

the duty of good faith that applies to every contract under the UCC. RCW 62A.1-304.

Mr. Beveridge had ample time to review the contract, and there was no action by Mr.

Burgess that could be construed as bad faith dealing.

      Procedural Unconscionability

       Mr. Beveridge further contends that the trial court erred by enforcing the

agreement against him because it was procedurally unconscionable. He contends that if

he had known that Mr. Burgess would not provide the grapes unless he signed the

Burgess contract, he would not have rented a truck and driven from Seattle to Pasco. In

addition to feeling tricked by Mr. Burgess, Mr. Beveridge also maintains that he felt

threatened by Mr. Burgess's work crew and therefore "lacked a meaningful choice" when



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No. 32199-1-111
Burgess Vineyards v. Beveridge


he signed the contract. Br. of Appellant at 19. His assertions are unavailing.

       Procedural unconscionability involves "blatant unfairness in the bargaining

process and a lack of meaningful choice" considering all the circumstances surrounding

the transaction, including the manner in which the contract was entered, whether each

party had a reasonable opportunity to understand the terms of the contract, and whether

the important terms were hidden in the fine print. Torgerson v. One Lincoln Tower, LLC,

166 Wn.2d 510, 518, 210 P 3d 318 (2009). The existence of an unconscionable bargain is

a question oflaw. Nelson v. McGoldrick, 127 Wn.2d 124, 131, 896 P.2d 1258 (1995).

       Mr. Beveridge fails to show that the agreement was procedurally unconscionable.

The trial court concluded that Mr. Beveridge's purported fear of Mr. Burgess's work crew

was unreasonable given that farmers often have a number of people working for them and

that in this case the workers were picking grapes for Mr. Beveridge. Also, Mr.

Beveridge's status as an attorney significantly undermines his claim that he was tricked

into signing the contract. In view of all of the circumstances, Mr. Beveridge had a

meaningful choice and the opportunity to understand the terms of the contract. As noted

above, he read and understood the terms ofthe contract before signing it. Finally, the

terms were not "hidden in a maze of fine print,") but were clearly stated in a short



       1   Torgerson, 166 Wn.2d at 519 (quoting Yakima County (W. Valley) Fire Prot.

                                             17
No. 32199-1-III
Burgess Vineyards v. Beveridge


paragraph at the end of the contract. Ex. 1.

       Personal Guaranty

       Finally, Mr. Beveridge assigns error to the court's conclusion of law II that found

Mr. Beveridge personally liable to Mr. Burgess. He asserts that he did not "objectively

manifest assent to personal liability," arguing that when he was "confronted at the

vineyard and left with no other meaningful choice but to sign the Burgess contract, he

crossed out his name at the top of page 1 to signifY this was a transaction with Tapenade,

Inc., not him personally." Br. of Appellant at 20-21. He claims that by crossing his name

off the contract, he objectively manifested his intent not to be personally liable or bound

by the terms of the Burgess contract. His argument fails.

       Washington courts "have long adhered to the objective manifestation theory of

contracts. This theory means that we impute to a person an intention corresponding to the

reasonable meaning of his words and acts." Dwelley v. Chesterfield, 88 Wn.2d 331,335,

560 P.2d 353 (1977). Here, the trial court found "that the defendant R. Paul Beveridge,

as a Washington lawyer, was familiar with contracts and the terms of this contract,

including the personal guaranty by R. Paul aeveridge." CP at 15. We review the court's

finding for substantial evidence and "[i]f that standard is satisfied, we will not substitute


Dist. No. 12 v. City o/Yakima, 122 Wn.2d 371, 391,858 P.2d 245 (1993)).

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No. 32199-1-111
Burgess Vineyards v. Beveridge


our judgment for that of the trial court even though we might have resolved disputed facts

differently." Green v. Normandy Park Riviera Section Cmty. Club, Inc., 137 Wn. App.

665, 689, 151 P.3d 1038 (2007).

       Mr. Beveridge's argument ignores the fact that the guaranty provision does not

distinguish between individuals and companies. The provision states: "The undersigned

individual(s) personally guarantee the performance of the entity for which he/she is

signing." Ex. 1. By signing immediately below this provision, Mr. Beveridge personally

guaranteed the provisions he now disputes. He contends that his objection to the

guarantee was clearly manifested. However, Mr. Burgess correctly points out that a man

of Mr. Beveridge's sophistication could have crossed out the personal guaranty provision

or refused to sign the contract altogether. Mr. Beveridge knew that Mr. Burgess was

demanding Mr. Beveridge's personal assurance as consideration for the extension of

credit; yet, instead of clearly objecting, Mr. Beveridge signed the contract with the

guaranty provision intact. His actions are sufficient to impute an intent to personally

guarantee payment of the late fees.

      The trial court did not err in enforcing the Burgess contract.




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No. 32199-I-III
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         Attornev Fees

         Mr. Burgess requests attorney fees on appeal. The contract provides:

         If a past due account is placed in the hands of any attorney or agency for
         collection or to foreclose any security, the person(s) or company owing the
         account shall pay all reasonable costs, fees and expenses incurred by
         Burgess Vineyards including without limitation, reasonable attorney fees
         (with or without litigation) and court costs.

Ex. I.

         Under the attorney fees statute, RCW 4.84.330, the prevailing party in an action to

enforce or defend a contract is entitled to attorney fees and costs on appeal where, as here,

the contract so provides. Reeves v. McClain, 56 Wn. App. 301, 311, 783 P.2d 606

(1989). Mr. Burgess has prevailed. Therefore, subject to his compliance with RAP 18.1,

we award Mr. Burgess his reasonable costs and attorney fees incurred in this appeal.

         Affirm.

         A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                            Lawrence-Berrey, 1.
WE CONCUR: 


         7ddt!a1.
Siddoway, C.J.                              Brown, J.    '(j
                                              20 

