 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JASON and RHIANNON LAWSON,
                                                No. 68317-9-1
                    Respondents,                                           ~3


                                              DIVISION ONE
      v.
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                                              UNPUBLISHED OPINION               {O                 :;£'-c-,\.
ANTHONY JAMES MARTYN,                                                            (J-
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                                              FILED: September 23, 2013
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                    Appellant.
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      Leach, C.J. — Anthony Martyn appeals from a superior court decision

upholding a small claims court judgment awarding Jason and Rhiannon Lawson

damages for breach of contract. Following our de novo review, we agree with

the trial court and conclude that Martyn breached an enforceable contract with

the Lawsons when he failed to undertake a van conversion. We also agree that

the Lawsons were entitled to the return of the deposit they paid toward the

conversion costs. Accordingly, we affirm.

                                        FACTS


      Jason and Rhiannon Lawson contacted Anthony Martyn about a custom

van conversion project after seeing Martyn's advertisement on Craigslist.

Following negotiations, primarily through e-mail, Martyn agreed to sell the

Lawsons a 2007 Dodge Sprinter van and then convert the van to a custom

camper in accordance with the Lawsons' specifications.
No. 68317-9-1/2



      The parties' negotiations culminated in a bill of sale for the van that Martyn

drafted and executed on September 27, 2010. The parties met on that date, and

the Lawsons paid Martyn $28,000, the amount specified in the bill of sale.

       On the same day, the parties signed an addendum to the bill of sale that

Martyn drafted. The addendum recited that it "modifie[d] the Bill of Sale" and that

the "details of the specific improvements contemplated by the parties" were set

forth in the "attached Estimate of Camper Conversion Costs ('the Estimate')."

Martyn agreed that he would "commence improvements within two weeks" of the

sale of the van.

       The estimate, which Martyn prepared and signed, listed the improvements

to the van that he would perform. The estimate also specified the cost of the van

as $23,610 "BEFORE CAMPER UPFIT"1 and the cost of the "CAMPER UPFIT"

as $11,725, for a "TOTAL COST OF FINISHED CAMPER" of $35,335.

       After the transaction, the parties continued to communicate about the

project, but Martyn did not begin the conversion.         In November 2010, the
Lawsons sought to cancel the conversion because Martyn had not yet started

work. In response, Martyn claimed that the Lawsons had never expressed a

"particular need for the conversion to be completed by any particular deadline

within the next six months."



    1The preconversion cost ofthe van originally included $200 to replace a side
mirror. When Martyn failed to perform the work, the trial court reduced the van
price to $23,410.

                                            -2-
No. 68317-9-1/3



      On November 30, 2010, Martyn informed the Lawsons that it "remains my

desire to complete this project" and proposed to begin "physical modifications" to

the van sometime after his return from a trip on December 12. On January 3,

2011, Martyn e-mailed the Lawsons that he had "finally finished the other project

that had me tied up" and that he was now "able to devote my undivided attention

to converting your van." Martyn indicated that he would begin the work in a few

days after arranging for an indoor work space.

      Martyn did not respond to repeated inquiries about the status of the

conversion. On February 28, 2011, after the Lawsons had retrieved their van,

Martyn e-mailed that he had "finally been able to make arrangements for indoor

shop space" and would be able to start the conversion "later this week."

      On April 1, 2011, the Lawsons filed a breach of contract action in Island

County small claims court, alleging that Martyn had failed to undertake the van

conversion.   They requested damages, including $4,590, the portion of the

$28,000 purchase price that was allocated to the conversion costs.

      Following a bench trial on May 12, 2011, the district court commissioner

concluded that the parties had entered into an enforceable agreement for the

conversion of the van and had intended that $4,590 of the $28,000 purchase

price would serve as a deposit toward the conversion costs. Because Martyn

had not undertaken any work on the conversion, the court concluded that he had
No. 68317-9-1/4



breached the contract and that the Lawsons were entitled to return of the $4,590

plus $410 to replace the locks on the van when Martyn failed to return the keys.

       Following de novo review, the superior court agreed with the district court

commissioner and entered judgment for $5,000 plus costs and interest in favor of

the Lawsons. Martyn now appeals to this court.

                                      DISCUSSION


Standard of Review


       The superior court reviews an appeal from a small claims decision de

novo based on the record of the case before the district court.2 We also review

de novo the record before the district court.3

Enforceability of the Addendum

       Martyn contends the addendum to the bill of sale was unenforceable

because it contemplated that the parties would negotiate a later agreement on

the essential terms of the conversion. He argues that because the parties never

reached an agreement on the design, specifications, and price of the conversion

project, he had no obligation to commence work and therefore did not breach the

contract.


       Washington follows the objective manifestation test for contracts.4
"Accordingly, for a contract to form, the parties must objectively manifest their


    2 RCW 12.36.055.
    3 See Bosnar v. Rawe, 167 Wn. App. 509, 510, 273 P.3d 488, review denied,
175 Wn.2d 1003 (2012); RCW 12.36.055.

                                             -4-
No. 68317-9-1/5



mutual assent."5   The terms of the agreement must be sufficiently definite to

permit enforcement.6 An "agreement to agree," which is "'an agreement to do

something which requires a further meeting of the minds of the parties and

without which it would not be complete,'" is unenforceable.7         "Whether an

enforceable contract exists is a question of law that we review de novo."8

       By its terms, the addendum expressly modified the bill of sale and

specified that the parties' agreement involved the purchase and sale of the van

"with certain added improvements and equipment to be installed by seller after

the closing of the purchase of this vehicle by the buyer." Martyn agreed to begin

the conversion within two weeks of the sale of the van and attempt to complete

the conversion within four weeks, "subject only to delays which may be incurred

by waiting for equipment or fixtures to be selected or provided by buyer."

(Emphasis added.)

      The addendum also expressly incorporated by reference the attached

estimate,9 which listed the cost of the van and the conversion work. In addition,


    4 Wilson Court Ltd. P'ship v. Tony Maroni's. Inc., 134 Wn.2d 692, 699, 952
P.2d 590 (1998).
    5 Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 177, 94 P.3d
945 (2004).
    6 Keystone, 152 Wn.2d at 178.
    7 Keystone. 152 Wn.2d at 175-76 (quoting Sandeman v. Savres, 50 Wn.2d
539, 541-42, 314 P.2d 428 (1957)).
    8 Taufen v. Estate of Kirpes, 155 Wn. App. 598, 603, 230 P.3d 199 (2010).
    9 See W. Wash. Corp. of Seventh-Dav Adventists v. Ferrellqas. Inc., 102 Wn.
App. 488, 494, 7 P.3d 861 (2000) ("Incorporation by reference must be clear and
unequivocal.").
No. 68317-9-1/6



the estimate specified in detail the work to be performed for the conversion,

including the installation of seat swivels, solar roof panels, windows, roof vents,

carpeting, power receptacles, wiring, propane tank, insulation, wall and ceiling

panels, cabinets, water tanks, batteries and chargers, cabin heater, and curtain

hardware. Each enumerated task on the estimate included a specific additional

charge or noted that it was included in the conversion cost.

       Martyn relies primarily on a provision in the addendum stating that the

details of the conversion in the estimate "may change based on the actual design

and specifications which have not yet been completed." But he fails to note that

the provision references changes "based upon the buyer's preferences."

(Emphasis added.)       Consequently, the addendum contemplated that the

Lawsons might make some changes to the equipment or fixtures to be installed,

at an additional cost. But the parties agreed that any additional costs would not

exceed the estimate by more than $1,000 without further written agreement. The

mere fact that the parties' agreement provided for some future changes does not

create an unenforceable "agreement to agree."

       In summary, the addendum and estimate manifested the parties'

agreement to all essential terms of the conversion project, including the sale of

the van, the cost and timing of the conversion work, a precise description of the

work to be performed, and the possibility that the Lawsons might change some of

the details of the conversion.    The terms of the agreement were sufficiently


                                            -6-
No. 68317-9-1/7



certain to permit both sides to ascertain the existence of a breach and seek an

appropriate remedy.10 The trial court correctly determined that Martyn breached

a binding contract when he failed to undertake any work on the conversion.

Cost of the Van


       Martyn also contends that the trial court erred in determining that the

parties allocated $4,590 of the van purchase price as a deposit toward the

conversion costs. He argues that the parties' agreement did not include the sale

of the van for less than the $28,000 specified in the bill of sale.

       The primary goal in interpreting a contract is to ascertain the parties'

intent.11 We determine intent by reviewing "'the contract as a whole, the subject

matter and objective of the contract, all the circumstances surrounding the

making of the contract, the subsequent acts and conduct of the parties to the

contract, and the reasonableness of respective interpretations advocated by the

parties.'"12 But a court may not use extrinsic evidence to "vary, contradict or

modify the written word."13 Ambiguities in contracts are resolved against the

drafter.14



    10 See Andrus v. Dep't of Transp., 128 Wn. App. 895, 898-99, 117P.3d 1152
(2005).
    11 Hearst Commc'ns. Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115
P.3d 262 (2005).
    12 Scott Galvanizing. Inc. v. Nw. EnviroServices, Inc., 120 Wn.2d 573, 580-
81, 844 P.2d 428 (1993) (quoting Berg v. Hudesman, 115 Wn.2d 657, 667, 801
P.2d 222 (1990)).
    13 Hollis v. Garwell. Inc.. 137 Wn.2d 683, 695, 974 P.2d 836 (1999).
    14 State v. Skiggn, 58 Wn. App. 831, 838, 795 P.2d 169 (1990).

                                              -7-
No. 68317-9-1/8



      The addendum provided that "the purchase price indicated on the Bill of

Sale is solely for the purpose of buyer's financing for the purchase of the vehicle

without the improvements." Although this provision may not be completely clear

when viewed in isolation, the estimate that Martyn drafted unambiguously

specified that the cost of the van before conversion was $23,410. That provision

was also consistent with the parties' negotiations leading up to the agreement.

       In an e-mail dated September 22, 2010, five days before the parties

signed the addendum, Martyn proposed that the parties "move forward [by]

preparing] a purchase contract for the van at a price that includes the van

purchase plus a portion of the conversion cost, so that your credit union can

close the deal right away." (Emphasis added.) On September 24, 2010, the

Lawsons informed Martyn that they were "comfortable, with the contract and

timeline in place, putting the [$4,590] of the $28,000 financed down as a deposit

for the conversion."     In response, Martyn did not dispute the Lawsons'

understanding and confirmed that "the balance of your financed purchase price

would be applied towards the conversion expenses, and we'd have an

addendum to our Bill of Sale confirming that arrangement."

       When viewed in context, the bill of sale, addendum, and estimate

establish that the parties intended $4,590 of the $28,000 purchase price to be

applied toward the conversion costs. Martyn's reliance on a September 24,
2010, e-mail from Rhiannon Lawson to her husband is misplaced. In the e-mail,


                                            -8-
No. 68317-9-1/9



Lawson referred to the possibility that Martyn might fail to undertake the

conversion and "just sell us a cargo van for [$]28,000."        Viewed in context,

however, the reference merely reflected Lawson's concerns about the absence

of a written agreement specifying the timeline for the project and limiting the final

costs. The parties addressed those concerns in the addendum and the estimate.

Nothing in the e-mail contradicted the parties' subsequent agreement to allocate

$4,590 of the purchase price to the conversion costs.

       Affirmed.




                                                 A^u e.
WE CONCUR:




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