                                                                                                FILED
                                                                                         C01JR T OF APPEALS
                                                                                              RJR VISIOM ii

                                                                                        1013 JUN - 4 AM 8'

                                                                                        STATE OF 0SHINGTON
                                                                                         B,Y-..
                                                                                              E TY


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

PETER CHARLES SEIDEL, a single man,                                                No. 43035 5 II
                                                                                             - -


                Respondent Cross -
                           /     Appellant,

         VIM




CAROLINE HARDING, a single woman,
and the CAROLINE HARDING LIVING                                              UNPUBLISHED OPINION
TRUST,




         WORSWICK, C. . —
                    J    Caroline Harding appeals from an award to Peter Seidel on his unjust

enrichment claim, arguing that the trial court erred in awarding him prejudgment interest. Seidel

cross -appeals, arguing that the trial court erred in calculating the prejudgment interest amount.

Because the trial court exercised its discretion in calculating the damages Harding owed,the trial

court erred in awarding Seidel prejudgment interest. We reverse the award of prejudgment

interest and remand.

                                                       FACTS


         Harding and Seidel lived together from 2001 to 2007. During this relationship, Harding

acquired several pieces of property, which Seidel improved. After the relationship ended, Seidel

successfully sued Harding under a promissory note for his out of-
                                                              - pocket expenses related to

these   properties.   In   a   separate lawsuit, and   now   the   subject   of this   appeal, Seidel   sued   Harding
No. 43035 5 II
          - -




for unjust enrichment. The trial court found for Seidel with regard to one property referred to as

the Bay Center property because Harding and Seidel intended to retire there. The trial court

found that Seidel's labor contributions exceeded Harding's, Seidel's contributions
                                                          that

substantially increased the property's value, and that Harding received a windfall because the

parties separated and Seidel would never enjoy the rewards of his labor.

       In assessing damages, the trial court found that both parties overestimated their own

contributions. Seidel asked to be compensated at $ 5 to $ 0 per hour for 3,00 hours.' The trial
                                                 5      6                 0
court allowed $ 5 per hour for 1,00 hours, totaling $ 2, 00. In its written decision, the trial
              3                 5                   5 5

court explained why it would not accept either party's calculation method:

       Plaintiff's request for either $55. 0 or $60. 0 per hour is unsubstantiated.
                                          0          0
       Plaintiff was never expecting to charge Defendant for any of his time, let alone a
       highly -skilled, full time professional contractor/builder. The Court also finds that
                              -
       Plaintiff's request to be compensated for 3000 hours of labor is unreasonable and
       unsupported by the evidence and certainly not proven by a preponderance of the
        evidence. In this point as to hours of labor, the Court finds Plaintiff's testimony
       unreliable and unsubstantiated.     Plaintiff also failed to keep a billing record or
       time slip to substantiate such a large, hourly figure, probably because he was not
        in conflict with Defendant but in love with her and vice versa. As best, Plaintiff
       guessed at this number. On the other hand, Defendant's testimony is unreliable as
       to her valuing Plaintiff's contribution. In a nutshell summary, the Court found
        both Parties' testimonies in this issue unreliable. Therefore, the Court is left to
        best estimate a fair compensation to Plaintiff.

Clerk's Papers (CP)at 77.

        The trial court also found that Seidel was entitled to prejudgment interest from August

10, 2007,to the date of judgment of January 3,2012, calculating that amount at $ 2, 00.
                                                                               2 6


  Seidel also asked the trial court to calculate his damages at 2.5 times his costs but the trial
                                                                 7
court found that this was unrealistic in this situation.



                                                   2
No. 43035 5 II
          = -




         Harding appeals the award of prejudgment interest. Seidel cross -appeals, challenging the

trial court's prejudgment interest calculation.

                                            ANALYSIS


                                    I. PREJUDGMENT INTEREST


         Harding claims that the trial court erred in awarding prejudgment interest because the

amount of damages was not liquidated and involved discretionary decisions. She argues that the

trial court had to exercise its discretion because (1) contractual relationship existed and thus it
                                                      no

had to determine if she was unjustly enriched, 2) had to decide what hourly compensation rate
                                               ( it

was reasonable, and ( ) had to decide how many hours of compensation were reasonable. We
                    3 it

agree.


         We review a trial court's decision to award prejudgment interest for an abuse of

discretion. Scoccolo Constr.,Inc. v. City of Renton, 158 Wn. d 506, 519, 145 P. d 371 (2006).
                                                           2                  3

To meet this standard, the challenging party must demonstrate that the trial court's decision is

manifestly unreasonable, based on untenable grounds, or granted for untenable reasons. In re

Marriage ofSchumacher, 100 Wn. App. 208, 211, 997 P. d 399 (2000).
                                                   2

         A trial court may award prejudgment interest when the plaintiff's claim is liquidated.

Safeco Ins. Co. v. Woodley, 150 Wn. d 765, 773, 82 P. d 660 (2004)., claim is liquidated
                                  2                 3             A

where the evidence furnishes data which, if believed, makes it possible to compute the amount

with exactness, without reliance on opinion or discretion."Prier v. Refrigeration Eng'g Co.,
                                                                                           74

Wn. d 25, 32, 442 P. d 621 (1968). claim is unliquidated where the exact amount of the
  2                2             A                       "`

sum to be allowed cannot be definitively fixed from the facts proved, disputed or undisputed, but


                                                  3
No. 43035 5 II
          - -




must in the last analysis depend upon the opinion or discretion of the judge or jury as to whether

a   larger   or a   smaller amount should be allowed. "'   Hansen v. Rothaus, 107 Wn. d 468, 473, 730
                                                                                    2

P. d 662 (1986)quoting Prier, 74 Wn. d at 33).
 2              (                  2

             As we noted above, Seidel's requested damages were for $ 5 to $ per hour for 3000
                                                                    5      60

hours of labor. Alternatively, he requested 2.5 times his costs. In its written decision, the trial
                                             7

court found Seidel's calculations "
                                  unreasonable and unsupported by the evidence."CP at 77. It

found his testimony " nreliable and unsubstantiated." CP at 77. It found that Seidel " uessed"
                    u                                                                g

in making his estimate. And it concluded that it would have to make its " est estimate."CP at
                                                                        b

77. Clearly,this was not a sum that could be "definitively fixed from the facts proved."Prier,

74 Wn. d at 33.
     2


             Despite Seidel's claim otherwise, this is not a case such as Bostain v. Food Express, Inc.,

159 Wn. d 700, 153 P. d 846 (2007), Stevens v. Brink's Home Sec.,Inc., Wn. d 42,47,
      2             3             or                                 162 2

169 P. d 473 (2007),
     3             where the damages were liquidated because the trial court simply

multiplied the number of overtime hours worked by the appropriate wage. Unlike in these cases,

here, in assessing damages, the trial court had to decide on a reasonable number of hours worked

and a reasonable hourly rate under the circumstances. Seidel's damages were not liquidated.

See State Dep't ofCorr. v. Fluor Daniel, Inc., Wn. d 786, 161 P. d 372 (2007)arbitration
                                             160 2             3              (
award akin to a jury verdict and not liquidated damages);
                                                        Hansen v. Rothaus, 107 Wn. d at 473
                                                                                 2

seaman's claim depended on its reasonableness and therefore was not liquidated);
                                                                               KiewitGrice
                                                                                     -

V. State, 77 Wn.App. 867, 895 P. d 6 (1995); (
                               2           reasonableness of claimed expenses was a jury

question and therefore claim was unliquidated); Acres Development Co. v. Douglas G.
                                              Ski

                                                      rd
No. 43035 5 II
          - -




Gorman, Inc., Wn.App. 775, 508 P. d 1381 (1973)reasonableness of repairs was a jury
            8                   2               (

question   and therefore   no   prejudgment interest   was   appropriate).

        Here, there were no fixed objective criteria for determining the amount of damages. The

trial court exercised its discretion in assessing the parties' credibility, it had to calculate damages

by making a "fair estimate," it discounted Seidel's hourly rate because of the factual
                           and

circumstance that he never expected compensation at the time he provided his labor. The trial

court had no tenable basis for awarding prejudgment interest and, thus, it abused its discretion.

We remand for the trial court to amend the judgment.

                                 II. PREJUDGMENT INTEREST CALCULATION


        In his cross -appeal, Seidel asks this court to remand this matter so the trial court could

amend the judgment to reflect a correct calculation. But in light of our holding that Seidel is not

entitled to prejudgment interest, we need not address this issue.

                                           Ill. COSTS ON APPEAL


        Both parties request their costs under RAP 14. . As Harding is the prevailing party, we
                                                     2

grant her request. Seidel's request is denied.




2
 Seidel also argues that because Harding did not assign error to findings of fact 17 and 18, we
must treat them as verities. In re Marriage ofBrewer, 137 Wn. d 756, 766, 976 P. d 102
                                                               2                     2
1999).But we fail to see this claim's relevance. These findings are that a reasonable hourly
rate is $
        35,not $ 5 or $ 0,and that 1,00 hours is compensable. As we noted above,the trial
                 5       6               5
court exercised its discretion in arriving at these figures..Harding does not explain or provide
authority for treating these findings as controlling our analysis.


                                                       5
No. 43035 5 II
          - -




       We reverse and remand.


       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




We concur:




J iianson, J.
                                          r




McCarthy, J.




                                                  C
