                                                                                    FILE
                                                                                      `
                                                                            COURT OF APP AIS
                                                                                           -
                                                                                 DIVISIM 11 ,

                                                                           2013 JUL -2     AM 9-06
                                                                            STATE OF WASHINGTON
                                                                            BY
                                                                                  4DPU
         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

WM. DICKSON COMPANY,                                                     No. 42489 4 II
                                                                                   - -


                                    Respondent,

           V.



MISENAR  CONSTRUCTION,                      INC.   d/ a
                                                    b /            UNPUBLISHED OPINION
MISENAR HOMES,

                                    I.
                                     1



           JOHANSON, A. . Misenar Construction
                     J.
                      C     —                               Inc. (
                                                                 Misenar) appeals the trial court's ruling

that it owed Wm. Dickson Company ( ickson)for unpaid excavation and site development work
                                 D

that Dickson performed at Misenar's housing development. We affirm and hold that substantial

evidence supports the challenged findings of fact which in turn support the trial court's

conclusions of law. We also award Dickson reasonable attorney fees on appeal.

                                                     FACTS


           In October 2005, Misenar contracted with Dickson for development services on

Misenar's       new   Lakeridge   Estates    housing development. Their written contract included the

work's basic scope, the price and terms, insurance terms, and written change order requirements

in   a   standard construction    industry   format. Dickson's initial bid for the work       05.
                                                                                              411, 31.
                                                                                          was $  5
No. 42489 4 II
          - -



Throughout the project the parties discussed, verbally and by e mail, several changes to the
                                                                -
contract.    These changes required Dickson to perform additional work, at additional cost and

delay. But Dickson believed that Misenar (1)approved all changes prior to Dickson doing the

work, 2)accepted all its work, and ( 3)agreed
      (                                                         to pay Dickson for the work.         Misenar paid

Dickson the original contract amount plus approximately $ 000 in changes but left several
                                                        46,

charged     amounts    unpaid. In May 2007, Dickson's work ended and Misenar made its final

payment to Dickson.

         In January 2009, Dickson filed its complaint against Misenar for breach of contract and

quantum meruit unjust enrichment, seeking a judgment for $
               /                                         14
                                                         81, 33. plus interest from May
                                                           2
2007.    In response, Misenar (1)denied that it owed Dickson more money than it had already

paid, ( )raised several affirmative defenses, and (3)sought judgment against Dickson for
      2
Dickson's breach of contract.


         In May 2009, Misenar moved for summary judgment dismissal of all Dickson's claims.

In response, Dickson argued that factual questions remained making the case improper for

summary      judgment.         In denying Misenar's summary judgment motion, the trial court's order

provided, in part:

          While the Mike M. Johnson caseE has strong language as to whether recovery
          can be made if the contract language as to change orders is not followed, the facts
          in that   case are   significantly   different than the facts in the instant   manner. [   T]
                                                                                                      here
          are factual issues as to whether the parties agreed to deviate from the contract
          language. There are also credibility determinations which cannot be made on a
          summary judgment motion.

Clerk's Papers (CP)at 355.

1
    Mike M. Johnson, Inc. v. County ofSpokane, 150 Wn. d 375, 78 P. d 161 (2003).
                                                     2            3


                                                            2
No. 42489 4 II
          - -



       Between May 2009 and May 2010, the trial court permitted Misenar to file three

amended answers. Each amended answer included additional breach of contract counterclaims

against Dickson.

       Trial   began   on   September 21, 2010. After Dickson rested its case on September 27,

Misenar moved for a directed verdict on its counterclaims under CR 7( )and CR 8( )because
                                                                    a          d

Dickson had not filed        a   reply   to   Misenar's counterclaims.   Misenar argued that because

Dickson's failure to reply was an admission of breach, the trial court should enter judgment in

Misenar's favor for its counterclaims. The next day, Dickson filed a motion for leave to file a

late reply to Misenar's counterclaims and a response to Misenar's motion for directed verdict.

Dickson also filed its reply to Misenar's counterclaims and asserted several affirmative defenses.
Dickson argued that the trial court should (1)treat Misenar's motion for directed verdict as a

motion for default, 2)
                    ( deny it,and (3)thereby accept Dickson's late filing. Dickson argued that

it complied with CR 55( )(
                    1)a because it had provided ample notice to Misenar of its position on

the counterclaims and had already presented testimony at trial denying the counterclaims.

Misenar moved to strike Dickson's reply.

          Two days later, the court heard argument on ( )
                                                      1 Dickson's motion for leave to file a late

reply, 2) s motion to strike Dickson's untimely reply and affirmative defenses, and (3)
       ( Misenar'
Misenar's motion for directed verdict, in that order. First, the trial court granted Dickson leave

to file its late reply, finding that doing so appropriately allowed the case to be decided on the
merits.




                                                       3
No. 42489 4 II
          - -



        Next, the trial court determined that Dickson's late filing was negligent, but that it was

excusable because the parties' filings and discovery throughout the case indicated both parties'

understanding    that Dickson denied the counterclaims.       Thus, the trial court denied Misenar's

motion to strike Dickson's entire reply, but it granted Misenar's motion to strike Dickson's

affirmative defenses, finding that allowing Dickson's affirmative defenses so late in the case

would prejudice Misenar.

         Third,the trial court treated Misenar's motion for a directed verdict as a CR 12( )
                                                                                         c motion

for   judgment   on   the   pleadings. But, the trial court concluded that Dickson met its burden to

prove that the parties had waived the written change order requirement, and denied Misenar's
motion.

         Trial then continued with Misenar's case. Several months after trial,the trial court issued

its ruling, ordering Misenar to pay Dickson an additional $
                                                          52.
                                                          80, 41. Misenar appeals.
                                                            3
                                               ANALYSIS


                                          I. SUMMARY JUDGMENT


         As a threshold issue, we reject Misenar's argument that the trial court erred when it

denied Misenar's motion for summary judgment because a summary judgment order is not

appealable after trial. A party cannot appeal a denial of summary judgment following a trial if
the denial was based upon a determination that material facts were in dispute and must be

2
  The court specified that there was "a sufficient factual basis through the testimony of Mr.
Hoven and Mr. Asahara to support that there has been a waiver" of the written change order
requirement. Verbatim Report of Proceedings (VRP)Sept. 29,2010)at 625.
                                                      (
3
  The court denied Dickson's claims regarding a steel post for a stop sign and road crossing
costs. The $
           52
           80, 41. ordered included $
                3                      58
                                       28, 63. for Dickson's additional work plus interest
                                            5
and attorney fees.


                                                     11
No. 42489 4 II
          - -



resolved by the trier of fact. Johnson v. Rothstein, 52 Wn. App. 303, 304, 759 P. d 471 (1988).
                                                                                2

Under RAP 12. ( can raise this issue sua sponte because it " one that affects judicial
          b),
            1 we                                           is

economy and involves interpreting court rules that define our jurisdiction." Rothstein, 52 Wn.

App. at 304 05. Here, the trial court clearly determined that there were disputed facts which
            -

must be resolved by the trier of fact; thus the summary judgment order cannot be appealed

because it was followed by a trial. Rothstein, 52 Wn. App. at 304.

                                      II. DIRECTED VERDICT


       Next, Misenar argues that the trial court erred in denying its motion for a directed verdict

on its counterclaims because a plaintiff is required to file a reply to a counterclaim and Dickson's

failure to reply constituted Dickson's admission as to those claims. Misenar argues that under

CR 7( ), 8( ), CR -12( )(trial court did not have discretion to allow Dickson's
    a CR d and     4),
                     a the

untimely reply. We disagree.

       We review a trial court's order granting a motion to file an untimely reply for abuse of

discretion. A trial court abuses its discretion if it denies a request to file an untimely reply " or
                                                                                                 f

no apparent reason." Beers v. Ross, 137 Wn. App. 566, 574, 154 P. d 277 (2007) citing CR
                                                                3              (
6( );
 b Goucher v. J. . Simplot Co.,104 Wn. d 662, 665, 709 P. d 774 (1985)).
               R                     2                  2             Also,we support

substantial compliance with the pleading rules to adequately promote justice and give defendants

their day in court. Morin v. Burris, 160 Wn. d 745, 757, 161 P. d 956 (2007).
                                           2                  3

        Here, the trial court supported its decision to allow Dickson's late filing with several
reasons.   The trial court found that the   parties' pretrial filings   and discovery indicated that the
No. 42489 4 II
          - -



parties understood that Dickson denied the claims and that the parties had effectively joined

Misenar's breach of contract counterclaims to the other issues in the case. Also, the trial court

noted that Dickson had presented testimony denying the counterclaims in its case in chief.

       Nonetheless, Misenar argues that we should apply the rule from Jansen v. Nu-
                                                                                  West, Inc.,

that the failure to deny an averment in a counterclaim constitutes an admission and therefore

Dickson admitted Misenar's counterclaims.      102 Wn. App. 432, 438, 6 P. d. 2000),
                                                                        98 (
                                                                         3         review

denied, 143 Wn. d 1006 (2001). But, Jansen is distinguishable because here, the trial court
              2


granted Dickson leave to file its reply; whereas in Jansen the plaintiff waited a year after the

summary judgment order to file its reply and did not seek leave of court before doing so. Also,

unlike in Jansen, here, the trial court found that Dickson's failure to file its reply was excusable

because it was clear that both parties understood that Dickson denied the counterclaims. Further,

Jensen involved res judicata because the trial court there granted summary judgment which

precluded further litigation on those issues, but here the trial court did not order summary

judgment for Misenar. Instead, the trial court specifically rejected the opportunity to do so and
allowed the case to proceed on the merits.

       We affirm the trial court's decision to allow Dickson's late reply filing, effectively

denying Misenar's request for judgment on its counterclaims, because the trial court supported

its decision with rational reasons. Beers, 137 Wn. App. at 573. We also affirm because Dickson

clearly acknowledged the counterclaims in court through its filings and testimony, thereby

substantially complying with the pleading rules. Morin, 160 Wn. d at 756.
                                                              2




                                                 31
No. 42489 4 II
          - -



                  III. CHALLENGED FINDINGS OF FACT AND CONCLUSIONS OF LAW


         Misenar assigns error to several of the trial court's findings of fact and conclusions of
laws     After a careful and thorough review of the record, we hold that substantial evidence

supports the trial court's findings, and that the trial court did not err in its conclusions.

                                       A. Standard of Review


         Where a party challenges a trial court's findings of fact and conclusions of law, we limit

our review to determining whether substantial evidence supports the findings and whether those

findings, in turn, support its legal conclusions. Panorama Vill. Homeowners Ass'n v. Golden

Rule Roofing, Inc., Wn. App. 422, 425, 10 P. d 417 (2000),
                  102                      3             review denied, 142 Wn. d 1018
                                                                              2

2001). Substantial evidence is "` efined as a quantum of evidence sufficient to persuade a
                                d

              minded person the
rational fair -                    premise   is true. "'   Korst v. McMahon, 136 Wn. App. 202, 206,

148 P. d 1081 (2006) quoting Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn. d 873, 879,
     3               (                                                          2

73 P. d 369 (2003)).
    3              This is a deferential standard, which views reasonable inferences in the

light   most favorable to the   prevailing party. Sunderland Family Treatment Servs. v. City of

Pasco, 127 Wn. d 782, 788, 903 P. d 986 (1995).We also defer to the trial court on issues of
             2                  2

conflicting evidence, witness credibility, and evidence persuasiveness. City of University Place

v. McGuire, 144 Wn. d 640, 652, 30 P. d 453 (2001).The party challenging a finding of fact
                  2                 3




4
 Misenar assigns error to findings of fact 3, 4, 5, 14, 16, 25, 26, 27, 29, 32, 33, 34, 35, 36, 37,
38. Misenar also assigns error to findings of fact 10, 23, and 31 but then does not provide any
argument relating to these findings, so these findings are treated as unchallenged findings.
5
    Misenar assigns error to conclusions of law 4, 7, 9, 16, 18, 19, 21, 22, 23,24, 25, 26, 29.

                                                     7
No. 42489 4 II
          - -



bears the burden of showing that it is not supported by the record. Panorama, 102 Wn. App. at

425. Unchallenged findings of fact are verities on appeal. Robel v. Roundup Corp.,148 Wn. d
                                                                                        2

35, 42, 59 P. d 611 (2002).
            3

       We review a conclusion of law erroneously labeled as a finding of fact as a conclusion of

law and review a finding of fact erroneously labeled as a conclusion of law as a finding of fact.

Willener   v.   Sweeting, 107 Wn. d 388, 394,
                                2               730 P. d 45 ( 1986). We review the factual
                                                     2


components of a mixed finding and conclusion under the substantial evidence standard and we

review conclusions of law de novo. Sunnyside, 149 Wn. d at 880; In re Estate of Haviland, 162
                                                    2

Wn. App. 548, 561, 255 P. d 854 (2011).
                        3

                                          B. Analysis

1. Waiver of Written Change Orders


       Misenar challenges several findings involving waiver of the written change order

requirement. A waiver is a voluntary and intentional relinquishment of a known right. River

House Dev.,Inc. v. Integrus Architecture, P. ., Wn. App. 221, 237, 272 P. d 289 (2012).A
                                           S 167                        3

contract condition requiring that performance of extra work be approved in writing may be

waived by the parties' conduct. Am. Sheet Metal Works, Inc. v. Haynes, 67 Wn. d 153, 158, 407
                                                                            2

P. d 429 (1965).Such a waiver can be shown by evidence that the owner authorized, permitted,
 2

andor directed the contractor to perform the work in question. Haynes, 67 Wn. d at 159; CKP,
   /                                                                        2

Inc. v. GRS Constr. Co.,63 Wn. App. 601, 821 P. d 63 ( 1991) holding the contractual
                                              2              (

requirement regarding written requests for extras was waived where CKP followed oral

directives),review denied,    120 Wn. d 1010 ( 1992). Under
                                    2                           Haynes,   an   owner   cannot   deny
No. 42489 4 II
          - -




compensation to a contractor for extra work authorized and directed by the owner, despite the

contractor's failure to get written approval. 67 Wn. d at 153.
                                                   2

         Misenar argues that the trial court could not have found unequivocal waiver because

waiver by conduct requires unequivocal acts and the parties' conduct here was equivocal, citing

Am. Safety Cas. Ins. Co. v. City of Olympia, 162 Wn. d 762, 773, 174 P. d 54 (2007).In Am.
                                                   2                  3

Safety, when a dispute arose and the city agreed to negotiate, the city also asserted in writing that

it reserved its right to demand strict compliance with the contractual procedures and that it was

only willing to negotiate without waiving any of its defenses. 162 Wn. d at 771 72. Thus, the
                                                                     2          -

Supreme Court held that a party that simply enters into negotiation does not necessarily waive its

contractual rights and that the city could not have unequivocally waived the contractual

provision at issue. Am. Safety, 162 Wn. d at 773. But Am. Safety does not apply here. Misenar
                                      2

does not support its argument with any trial testimony or evidence that it clearly reserved its

rights   to demand strict   compliance with   the written   change   order   requirement. Instead, as

explained below, the evidence showed that the parties e-
                                                       mailed and orally discussed changes in

lieu of formal written change orders.




                                                  7
No.42489 4 II
         - -




          Challenged findings 3,4,' and 26 involve Misenar's waiver of the written change
                                  5,
order requirement. Testimony by Shawn Hammond, Dickson's employee who performed work

at the site; Randy Asahara, Dickson's senior project manager; and Michael Hoven, Dickson's

project   manager, support these    findings. As Dickson's representatives, they testified to the

parties' oral discussion of any changes and Robert "Bodi" Misenar's oral approval and
agreement    to pay Dickson   for those   changes   before Dickson did the work —thereby   waiving any

written change order requirement. Verbatim Report of Proceedings (VRP) Sept. 29, 2010) at
                                                                       (

626.     Also, several e mails between Dickson's representatives and Bodi discussing proposed
                         -

changes support the waiver conclusion.

          Specifically, Hammond, Asahara, and Hoven testified that they talked with Bodi often

because he was commonly at the work site and that they did not use written documentation of

change orders even after they specifically asked Bodi if they needed to do so because he

indicated that they did not. Instead, Bodi told them that if he agreed to the costs of the additional

6
     Finding of fact 3 provides, Although the contract contained a provision requiring written
                                 "
change orders, the parties mutually agreed to waive that contractual provision."CP at 969.
7
  Finding of fact 4 provides, " ccordingly, the parties agreed that Dickson's representatives
                              A
would discuss proposed changes and expected cost with Misenar, who would either approve or
reject the change. Numerous e[- ] support this pattern of informal changes to the contract."
                                mails
CP at 969.

8
    Finding of fact 5 provides, "Misenar unequivocally waived the requirement for written change
orders from Dickson."CP at 969.

9
     Finding of fact provides, " Misenar did not prove a failure to comply with a contractual
                       26
condition consistent with the findings above that the parties mutually waived the contract
provision regarding written change orders."CP at 974.
io
   Robert ` odi"
          B      Misenar is the owner of Misenar Construction, Inc. For clarity, we refer to him
as `Bodi," intending no disrespect.

                                                      10
No.42489 4 II
         - -



work, that Dickson could add the additional amounts to the initial contract price, and that

Misenar would pay it.

        We defer to the trial court on issues of conflicting evidence and evidence persuasiveness.

McGuire, 144 Wn. d at 652. The trial court found that compliance with the written change order
               2

requirement   was   waived.   The evidence substantially supports the trial court's waiver finding.

And, the trial court's conclusions of law 411 and 19 regarding waiver (1)logically flow from
the findings of fact, thus they are supported by substantial evidence; and (2) consistent with
                                                                              are

Haynes and CKP, Inc.

2. Dickson's Damages

         Misenar also challenges several findings and conclusions regarding the trial court's

damage award.

         a. Import Trench Backfill Materials

         Several facts support challenged finding 14. First, the Holroyd bid and Dickson's time
and materials worksheet introduced at trial for the price of the additional costs support finding

14. Also, finding 14 is supported by ( )
                                     1 Asahara's testimony that Dickson acquired the materials


11
  Conclusion of law 4 provides, "Misenar unequivocally waived the contract provision requiring
written change orders, so Misenar is obligated to pay Dickson for some of the `extras' claimed
by Dickson as outlined below." at 977.
                             CP
12
     Conclusion of law 19 provides, The practice of not using written change orders was not a
                                    "
breach of contract because this contract    provision    was   unequivocally   waived. Misenar's first

counterclaim ( reach of contract)is denied."CP at 979.
             b
13
     Finding of fact 14 provides, The Court finds that it is necessary for [ Misenar] to pay an
                                  "
amount for these [ import trench      backfill]   materials.   The amount [    Misenar] should pay is
89."
21, 54. CP at 971.
  5



                                                    11
No. 42489 4 II
          - -



from Holroyd because Holroyd provided the least costly backfill materials in the area; and (2)

Asahara's and Hoven's testimony about the county's requirements for the backfill materials, and

that at the time of the contract the parties intended to use native backfill material but that they

later discovered that     they would     have to   import   backfill material at   an   additional cost. Thus,


substantial evidence supports finding 14, and because conclusion 714 logically flows from
finding 14, it is also supported by substantial evidence.

         b. Tree Removal


         Next, Hammond's testimony provides substantial evidence to support challenged finding

16. Hammond testified that the tree removal was not in the original contract but that Misenar

approved the additional cost of having Dickson remove the tree. And, conclusion 9 provides,
 Misenar must pay the cost of           removing    the additional tree ($
                                                                         2,680. CP at 978. This
                                                                         00)."

conclusion logically flows from finding 16 and is thus supported by substantial evidence.

         c. Asphalt Repair

         Next, challenged conclusion 16 provides, "Misenar must pay the cost for the repairs to

the asphalt necessitated by the work of a third party ($ 60. 0)." at 978. This conclusion
                                                       8 0     CP
logically follows from finding of fact 23, which is an unchallenged finding and is therefore a

verity on appeal. Robel, 148 Wn. d at 42. The $ 60 amount is also supported by ( )
                               2              8                                1 exhibit 69P

introduced at trial, which is a breakdown of the additional costs to Dickson for the repairs to the

14
  Conclusion of law 7 provides, "Misenar must pay $ 1, 54. the total of the cost for the pit
                                                      89 (
                                                      2 5
run, trip fees, labor, and equipment) to Dickson for the costs of the import trench backfill."CP
at 978.

15
     Finding of fact 16 provides, Work on the project necessitated removal of a tree located on
                                  "
property that did   not   belong   to   Misenar (
                                                the   existing   home   on   23 Avenue). Dickson incurred'
00
2, in additional costs for removal of this tree."CP at 972.
 680.

                                                       12
No. 42489 4 II
          - -




asphalt and (2)Hoven's testimony that Misenar approved this change to the original contract.

Substantial evidence supports this conclusion.

         d. Total Damage Award

         Next, challenged finding 37 provides the trial court's total damage award for Dickson's

extra work. This finding is supported by substantial evidence from (1)unchallenged finding 6

that the parties agreed to the revised contract price of 421, 51.2) ( court's findings
                                                         05; the trial
                                                         $  2

that Dickson was entitled to payment for several extras; 3)and exhibit 64 showing Misenar's
                                                         (

unpaid amounts. Similarly, the trial court's conclusions of law 25 and 29 relating to the total
damage award logically flow from finding 37 and are thus supported by substantial evidence.




16
     Finding of fact 37 provides:

          The total of all the claims for " xtras"that were performed under the contract for
                                          e
          which Dickson should be paid is $    89.
                                               28, 77. When that figure is added to the
                                                    5
          total in the Project Work Bid dated October 27, 2005, of $ 21, 51.the total
                                                                     05,
                                                                     4      2
          due is $ 449, 28. With Washington State sales tax of 8. %
                   94.   8                                               8 added to that
          amount, the total due under the contract including "extras" is $489[,]
                                                                          89.413.
          Misenar paid a total of $
                                  02
                                  457, 52. to Dickson, leaving a balance owing of
                                        6
          87.
          31, 61.
            7

CP at 976.


17 Conclusion of law 25 provides, Dickson is entitled to damages of 31, 61. not including
                                  "                                 87 (
                                                                    $ 7
prejudgment interest),and Misenar is entitled to offset that amount by $3, for the
                                                                        29
                                                                         198.
defective sidewalks, so judgment should be entered in Dickson's favor for $
                                                                          58,
                                                                          28, 63. not
                                                                            5
including prejudgment interest."CP at 979.

18 Conclusion of law 29 provides, Judgment should be entered in Dickson's favor consistent
                                  "
with these findings and conclusions."CP at 980.



                                                  13
No. 42489 4 II
          - -



         e. Prejudgment Interest

         Challenged finding 38 relates to the trial court's prejudgment interest award and is

supported by Dickson's January 31 invoice which included all the money Dickson was

requesting   from Misenar at that   point. And conclusion 26 provides, " ickson is entitled to
                                                                       D

prejudgment interest calculated from January 31, 2007 to the present on $21, 11. in the
                                                                         258

amount of 11, 77. CP at 979. The trial court properly found that as of January 31, Misenar
          94."
          $ 7

owed Dickson a liquidated amount that could be computed with exactness. Thus, the trial court

properly awarded prejudgment interest calculated from that date. Lakes v. von der Mehden, 117
Wn.    App. 212, 217,                        review denied, 150 Wn. d 1036 (
                          70 P. d 154 ( 2003),
                              3                                   2              2004). This

conclusion is supported by finding 38 that Misenar should have paid Dickson for the extras at

least as of January 31.




19
     Finding of Fact 38 provides:

          Dickson issued a pay estimate dated May 1, 2006, which included each of the
          extras" for which Misenar is obligated to pay. The amount indicated as owing
          on the pay estimate dated May 1, 2006 was included on an invoice to Misenar
          dated January 31, 2007. Payment for the `extras' was due and should have been
          paid at least as of the date of the January 31,2007 invoice.

CP at 976.


20 A trial court properly awards prejudgment interest at the time the amount claimed is liquidated
or when the amount claimed is unliquidated but a contract provides a fixed standard amount.
Lakes, 117 Wn. App. at 217. A claim is liquidated if the evidence makes it possible to compute
with exactness, without reliance on opinion or discretion. Lakes, 117 Wn. App. at 217.


                                                14
No. 42489 4 II
          - -



3. Misenar's Claims for Damages

         Also, Misenar challenges findings relating     to   its claims for   damages.   Finding 36

provides, "Misenar presented no evidence as to what the actual damages are to him for the loss

of 4. feet of Lot 2,or the location of the pipe."CP at 976. Misenar does not cite any evidence
    5

introduced at trial of actual damages for the loss of the 4. feet or the pipe's location; thus
                                                           5

Misenar has not met its burden of proof on appeal as to this finding. Panorama, 102 Wn. App.

at 425.    And, the trial court found Misenar presented unpersuasive evidence of any actual

damages from the loss of the 4. feet and we will not disturb the trial court's determinations on
                              5

evidence persuasiveness. McGuire, 144 Wn. d at 652.
                                        2

         Next, challenged conclusion 23 provides, "Misenar's claim for damages based on delay

raised in closing argument) is denied because many of the delays were not the fault of Dickson."

CP at 979. This conclusion logically follows from findings of fact 14, 16, 17, 18, and 23 that

Dickson performed additional work after the parties agreed to many changes to the original

scope of Dickson's work. These findings are supported by substantial evidence. And, finding

35, a mislabeled conclusion, logically flows from findings 30, 31, 32, 33, and 34, which are

                  substantial   evidence.    Accordingly, substantial     evidence   supports   these
supported by
                                                                                                Q.
conclusions.




21
     Finding of fact 35 provides, "Misenar failed to prove any damages resulting from the location
of the wall and the bypass line." 976.
                                CP



                                                  15
No.42489 4 II
         - -



4. Misenar's Affirmative Defenses


        Next, challenged finding 25 relates to Misenar's failure to meet its burden on
affirmative defenses of equitable estoppel, unclean hands, and savings to Dickson. Misenar does

not cite any trial testimony or trial evidence that shows that Dickson was able to save money

from Misenar's    suggested changes. And, the trial court found Misenar's testimony regarding

equitable estoppel     and unclean hands     unpersuasive. Again, we do not disturb a trial court's

determinations   on    issues of   conflicting   evidence and evidence   persuasiveness. McGuire, 144

Wn. d at 652. Conclusions 18 and 24 logically flow from findings 14 and 25 and are thus
  2

supported by substantial evidence.

         Challenged finding 27 is a mixed finding and conclusion and relates to Misenar's




22
     Finding of fact   25   provides, " Misenar has not met his burden of proof on his affirmative
defenses.  Misenar did not produce sufficient evidence to prove equitable estoppel or unclean
hands in that Misenar did not produce evidence of the alleged savings to Dickson from changes
made to the contract."CP at 974.

23
     Conclusion of law 18provides, " Misenar did not meet his burden of proof on any of his
affirmative defenses. None of his affirmative defenses apply."CP at 978.
24
   Conclusion of law 24 provides, "Misenar's claim that credits should have been given ( aised in
                                                                                       r
closing argument) is denied because Misenar did not produce evidence of the alleged savings to
Dickson from changes made to the contract."CP at 979.
25
   Finding of fact 27 provides, in pertinent part, "Misenar did not prove the defense of accord and
satisfaction because the phrase "final billing with retainage"does not clearly tell Dickson that
this is the final payment to be made by Misenar and that by cashing the check Dickson would be
waiving any future claims for payment."CP at 974.


                                                       W
No. 42489 4 I1
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                                                                        26
failure to prove its affirmative defense of accord and satisfaction.         Although Misenar asserts

that " ell established case law"prohibits a creditor from accepting a debtor's final payment and
     w

then seeking additional compensation, Misenar does not cite a case where the only evidence of

an accord and satisfaction is the words "Final Billing wret (etainage)." of Appellant at 43.
                                                         / r           Br.

Nor does Misenar cite any conduct or declaration by Misenar that Dickson could have arguably

understood to mean that the money tendered was final satisfaction of the debt. Accordingly, we

conclude substantial evidence supports finding 27 and the trial court did not err in its conclusion.

5. Misenar's Counterclaims


         Misenar challenges findings 29, 32, 33, and 34 relating to its unsuccessful
counterclaims against Dickson. However, substantial evidence supports these findings. Hoven


26
     Accord and satisfaction requires the parties have a bona fide dispute, an agreement to settle
that   dispute, and performance of the agreement. Paopao      v.   Dep't of Soc. & Health Servs.,145
Wn. App. 40, 46, 185 P. d 640 (2008).An accord requires a meeting of the minds. U. . Bank
                      3                                                          S
Nat'l Ass'n v. Whitney, 119 Wn. App. 339, 351, 81 P. d 135 (2003),
                                                   3             review denied, 152 Wn. d
                                                                                      2
1021 (2004).Also, the tender must be accompanied by conduct and declaration by the debtor
such that the creditor cannot fail to understand that the money is tendered as final satisfaction of
the debt. U. . Bank, 119 Wn. App. at 351.
           S
27
     Finding of fact 29 provides:

          Misenar claimed that Dickson failed to complete clearing and grubbing, that it
          removed, buried, or misplaced survey stakes, and that it failed to leave the job site
          in a clean and orderly manner. Misenar requested reimbursement for costs
          incurred, but Misenar failed to meet its burden of proof as to these claims.

CP at 975.

28
   Finding of fact 32 provides, There was conflicting testimony about what was staked with
                                 "
regard to the bypass line and the wall. At least the southern portion of the wall was staked by
Sadler Barnard. There was a lot of communication between the parties about the movement of
the bypass line." at 975.
                CP



                                                   17
No. 42489 4 II
          - -



testified at trial that Dickson did not design, engineer, or stake out the wall. Instead, the civil

engineer designed the wall and a separate survey company staked the wall's location. Dickson

then built the wall according to the engineer's and surveyor's plans. Also, Hoven testified about

exhibit 131 which was an e mail dated October 24 from Harold Hagenson, the civil engineer for
                           -

the project, regarding the required change to the bypass line and retention wall. The e mail said
                                                                                        -

that the retaining wall and bypass line needed to be moved about eight feet west of the latest

design location. And in the e mail, Hagenson also said that "it looks like a doable relocation."
                              -

Ex. 131.


         And Misenar cites only two pieces of evidence to support its argument that un-

contradicted evidence shows that it incurred costs in clearing, grubbing, and re-
                                                                                staking the entry

curbs (1)exhibit 61, an invoice from a subcontractor that Misenar paid for some work; and (2)

exhibit 62, a list of transactions with Misenar's vendors. But these exhibits do not show that

these incurred costs were Dickson's responsibility or caused by Dickson's breach of its

contractual obligations.          The trial court found Misenar's testimony regarding these claims

unpersuasive and we will not disturb that finding. McGuire, 144 Wn. d at 652.
                                                                  2

29
     Finding of fact 33 provides,

          Originally,     the   bypass   line   was    too close to the retention   pond   wall.   Shawn
          Hammond notified Hal Hagenson of the conflict between the wall and the pipe on
          October 21, 2005. Hagenson informed Misenar of the problem on October 24,
          2005, in   an     mail contained
                           e[ -]                      in Exhibit 131.   Hagenson said of Hammond's
          proposed relocation of the bypass line that " t looks like a doable relocation."
                                                      i
CP at 975 76.
          -

30
 Finding of fact 34 provides, Dickson is not responsible for the encroachment of the ultrablock
                              "
wall onto Lot 2. Dickson is not responsible for any encroachment of the bypass line outside of
the driveway easement."CP at 976.

                                                             18
No. 42489 4 II
          - -




       Next, conclusion 21 provides, "Misenar's third counterclaim (back charges and costs) is

denied for lack of adequate evidence."CP at 979. Finding 29 supports this conclusion; thus it is

supported by substantial evidence. And, conclusion 22 provides:

       Misenar's fourth and fifth counterclaims (storm bypass line and pond retention
       wall)are denied because Dickson was not responsible for encroachment of either
       the storm bypass line or the retention wall and because Misenar did not present
       sufficient evidence of damages.

CP at 979. Findings 34, 35, and 36 support this conclusion; thus it is supported by substantial

evidence.


6. Conclusion


       After limiting review to whether substantial evidence supports the trial court's findings of

fact, viewing reasonable inferences in the light most favorable to Dickson, and deferring to the

trial court on issues of conflicting evidence, witness credibility, and evidence persuasiveness, we

conclude that substantial evidence supports each contested       finding.   And the trial court's


findings, in turn, support its legal conclusions.

                                        ATTORNEY FEES


       Both parties request attorney fees on appeal under RAP 18. . We deny Misenar's request
                                                                1

because it is not the prevailing party, and we award attorney fees to Dickson. A contract that

provides for attorney fees at trial also supports such an award on appeal. Atlas Supply, Inc. v.
           170 Wn. App. 234, 241, 287 P. d 606 (2012). The parties' contract contained a
Realm, Inc.,                           3


provision for the award of attorney fees to the prevailing party, including appellate proceedings.

Because Dickson has prevailed on appeal, it is entitled to reasonable attorney fees.




                                                    19
No.42489 4 II
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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

040,
2.6.it is so ordered.
 0


                                                                                 r       s


                                                                   Johanson, A. .
                                                                             J.
                                                                              C
We concur:




                4   Hunt,J.


                Quinn-
                     Brintnall, J.




                                                 G1
