                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        March 29, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 NEW VISION PROGRAMS INC., a                                       No. 46914-6-II
 Washington corporation,

                               Appellant,

        v.

 STATE OF WASHINGTON, DEPARTMENT
 OF SOCIAL AND HEALTH SERVICES; and
 RANDY ROBERTS, individually,                                UNPUBLISHED OPINION

                               Respondent.

       WORSWICK, J. — New Vision Programs, Inc. owned and operated residential homes for

foster children under a contract with the Department of Social and Health Services (DSHS).

After becoming concerned about the children’s welfare, DSHS removed many children from

New Vision’s homes, and in June 2013, DSHS chose not to renew the contract. New Vision

sued DSHS under multiple theories and the superior court granted DSHS’s motions for summary

judgment dismissal.

       New Vision now appeals the summary judgment dismissal of its breach of contract claim

against DSHS, arguing that the superior court erred because genuine issues of material fact exist

regarding whether DSHS violated the implied duty of good faith and fair dealing. We disagree

that the contract implied any of the duties of good faith that New Vision argues, and we affirm

the superior court.
No. 46914-6-II


                                              FACTS

       DSHS regulates the foster care of children in Washington. New Vision, a Washington

corporation, owns and operates residential homes that provide behavior rehabilitation services

(BRS) for foster children. BRS “is a temporary intensive wraparound support and treatment

program for youth with extreme, high level service needs . . . used to safely stabilize youth and

safely move them to permanency or less intensive services.” Clerk’s Papers (CP) at 512.

       In 2010, New Vision and DSHS entered into a client service contract, which the parties

renewed annually in 2011 and 2012. The contract at issue here started on July 1, 2012 and ended

on June 30, 2013. It governed DSHS’s placement of children into New Vision’s homes, and it

required DSHS to pay New Vision “only for authorized services provided in accordance with

this Contract.” CP at 533. The contract allowed DSHS to “request services from the Contractor

on an as-needed basis,” but the contract did not “obligate [DSHS] to authorize services from the

Contractor.” CP at 533. The contract provided that New Vision would provide services such as

housing, food, and BRS to children who were placed into a New Vision home.

       The contract stated that the length of stay of a child at New Vision’s facilities “will be

based on the individual needs of the youth and may not exceed the term of 12 months, unless

approved in writing by the CA [DSHS (Children’s Administration)] Regional Administrator or

designee.” CP at 543. To determine the planned length of a child’s stay at New Vision’s homes,

the contract provided that the “Contractor and CA shall mutually agree and establish a targeted

exit date, for a child to transition from BRS. . . . This mutually agreed upon exit date should be

determined at the child’s initial case staffing meeting, held within 30 days of entry.” CP at 543.




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No. 46914-6-II


       The contract provided for suspending New Vision’s performance under certain

circumstances:

       DSHS may, without prior notice, suspend the Contractor’s performance of the
       Contract if the Contractor . . . is investigated by DSHS or a local, county, state, or
       federal agency regarding any matter that, if ultimately established, could either:

       a. Result in a conviction for violating a local, state, or federal law, or

       b. In the sole judgment of DSHS, adversely affect the delivery of services under
       this Contract or the health, safety or welfare of DSHS clients.

CP at 535.

       Finally, the contract included termination provisions. It provided that either party could

terminate the contract with 30 days’ notice; specifically, DSHS could terminate “in whole or in

part when it is in the best interest of DSHS by giving the Contractor at least thirty (30) calendar

days’ written notice.” CP at 525. The contract also permitted DSHS to immediately terminate

the contract “for default” if DSHS had a reasonable basis to believe New Vision failed to protect

the health and safety of the children, breached any contract term, or violated any law or

regulation.1 CP at 525-26.

       In late 2012, DSHS became concerned about some children’s welfare in New Vision’s

homes. Between November 2012 and March 2013, DSHS entered into several compliance

agreements with New Vision in an attempt to rectify conditions in New Vision homes. DSHS

also began a comprehensive investigation of New Vision’s homes. After this investigation,

DSHS decided between April and June 2013 to remove many of the children from New Vision’s




1
  If it was later determined that New Vision was not in default, the contract provided that
“termination shall be considered a termination for convenience.” CP at 526.


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No. 46914-6-II


homes and to stop placing children there due to possible licensing violations and allegations of

child neglect. In June 2013, the contract expired and DSHS chose not to renew it.

       New Vision sued DSHS for a declaratory judgment and recovery of damages for breach

of contract and defamation. Regarding breach of contract, New Vision argued that DSHS

violated an implied duty of good faith. DSHS twice moved for a summary judgment of

dismissal. The superior court granted DSHS’s motions for summary judgment, dismissing each

claim. New Vision appeals only the dismissal of its breach of contract claim.

                                           ANALYSIS

              I. SUMMARY JUDGMENT PRINCIPLES FOR CONTRACT INTERPRETATION

       We review a superior court’s summary judgment order de novo, performing the same

inquiry as the superior court. Vernon v. Aacres Allvest, LLC, 183 Wn. App. 422, 427, 333 P.3d

534 (2014), review denied, 182 Wn.2d 1006 (2015). We view all facts and reasonable inferences

drawn from those facts in the light most favorable to the party that did not move for summary

judgment. Vernon, 183 Wn. App. at 427. If there are no genuine issues of material fact, and the

moving party is entitled to judgment as a matter of law, we affirm the superior court’s summary

judgment order. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013).

       Summary judgment on the interpretation of a contract is “proper where ‘the parties’

written contract, viewed in the light of the parties’ other objective manifestations, has only one

reasonable meaning.’” Spradlin Rock Prods., Inc. v. Pub. Util. Dist. No. 1 of Grays Harbor

County, 164 Wn. App. 641, 655, 266 P.3d 229 (2011) (quoting Hall v. Custom Craft Fixtures,

Inc., 87 Wn. App. 1, 9, 937 P.2d 1143 (1997)). Where there are no disputed material facts and

no extrinsic evidence presented on the issue, we decide the meaning of a contract as a matter of



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No. 46914-6-II


law. Snohomish County Pub. Transp. Benefit Area Corp. v. FirstGroup Am., Inc., 173 Wn.2d

829, 834, 271 P.3d 850 (2012). We review the interpretation of an unambiguous contract de

novo as a question of law. Stranberg v. Lasz, 115 Wn. App. 396, 402, 63 P.3d 809 (2003). We

view contracts as a whole, interpreting particular language in the context of the entire contract.

Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 713, 334 P.3d 116 (2014).

                                     II. DUTY OF GOOD FAITH

       New Vision argues that DSHS owed it a duty of good faith and fair dealing under five

specific terms of the contract. We disagree.

A.     Good Faith Principles

       An implied duty of good faith and fair dealing obligates the parties to a contract to

cooperate with each other so that each may obtain the contract’s full benefit. Rekhter v. Dep’t of

Soc. & Health Servs., 180 Wn.2d 102, 112, 323 P.3d 1036 (2014). However, the implied duty of

good faith and fair dealing does not impose a free-floating obligation of good faith on the parties.

Rekhter, 180 Wn.2d at 113. Instead, it “arises when one party has discretionary authority to

determine a future contract term,” which term the party is obligated to perform. Rekhter, 180

Wn.2d at 112-13.

       This duty does not add to or contradict express contract terms. Rekhter, 180 Wn.2d at

113. And as explored below, if a contract gives a party unconditional authority to determine a

term, no duty of good faith and fair dealing attaches to that term. Rekhter, 180 Wn.2d at 119-20;

Johnson v. Yousoofian, 84 Wn. App. 755, 762-63, 930 P.2d 921 (1996).

       Rekhter is illustrative. In Rekhter, DSHS entered into contracts providing public

assistance for in-home care for individuals with disabilities. 180 Wn.2d at 108. The contracts



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No. 46914-6-II


provided that DSHS would pay in-home care contractors for services included in the client’s

service plan. 180 Wn.2d at 108. Because the contracts were drafted before each client had a

service plan, “key terms such as tasks to be performed and authorized hours are left undefined

until long after the contract is executed.” 180 Wn.2d at 108. A jury found that DSHS violated

the implied duty of good faith and fair dealing by reducing the hours it would authorize for live-

in providers. 180 Wn.2d at 111. Our Supreme Court affirmed this jury verdict because

       DSHS has a specific contractual obligation to determine and pay providers for
       hours authorized in the service plans. . . . [A]t the time that DSHS and an individual
       provider executed a provider contract, neither DSHS nor the provider knew what
       services would be needed by the clients or how much would be paid to the
       providers. These provisions give DSHS the discretion to set a future contract term:
       the quantity of hours and the types of services for which providers will be
       compensated.

180 Wn.2d at 113-14 (emphasis added). Thus, because DSHS had discretion to set a future

contract term which it had a specific obligation to perform, the implied duty of good faith and

fair dealing applied to that term.

       By contrast, no implied duty of good faith and fair dealing exists where a party has

unilateral authority to do or not do something under a contract. For example, in Johnson,

Division One of this court considered whether the implied duty of good faith and fair dealing

applied to a commercial lease’s assignment clause. 84 Wn. App. at 756-57, 759. The clause

prevented the tenant from assigning the lease without the landlord’s written consent, but the

landlord was not required to give consent. 84 Wn. App. at 757. Division One of this court held

that the duty of good faith applies only to the performance of specific contract obligations. 84

Wn. App. at 762. Therefore, because the commercial lease did not obligate the landlord to




                                                 6
No. 46914-6-II


consent to an assignment, instead giving him the absolute privilege to refuse consent, there was

no implied duty of good faith and fair dealing. 84 Wn. App. at 762-63.

       Likewise, contract provisions permitting a party to cancel an agreement at will do not

imply a duty of good faith. In Mayer v. Pierce County Medical Bureau, Inc., 80 Wn. App. 416,

421-22, 909 P.2d 1323 (1995), we held that there was no implied duty of good faith in canceling

where the contract provided that either party could cancel with 30 days’ notice. See also Myers

v. Dep’t of Soc. & Health Servs., 152 Wn. App. 823, 828-30, 218 P.3d 241 (2009) (finding no

duty of good faith when there is a termination for convenience clause).

B.     New Vision’s Contract with DSHS

       This case turns on whether a duty of good faith and fair dealing is implied under several

terms of DSHS’s contract with New Vision. Whether a contract term includes an implied duty

of good faith and fair dealing depends on whether DSHS had unconditional authority to set

contract terms. Rekhter, 180 Wn.2d at 114. New Vision argues that an implied duty of good

faith applies to contract terms concerning the placement of children, stopping placement of

children and removing them, the “Corrective Action Plan,” setting the end date for a child’s

placement, and termination of the contract. Br. of Appellant at 15. Because there was no duty of

good faith and fair dealing implied in these clauses, New Vision’s argument fails.

       1. Placement of Children

       New Vision argues that the contract provided DSHS with the discretionary authority to

place children in New Vision’s homes; accordingly, it argues that the duty of good faith and fair

dealing applied to the placement of children. We disagree.




                                                7
No. 46914-6-II


       The contract stated that DSHS may authorize services “as[ ]needed.” CP at 533. The

contract stated: “[DSHS] may request services from the Contractor on an as-needed basis. This

Contract does not obligate [DSHS] to authorize services from the Contractor.” CP at 533. This

contract clearly provided DSHS with the unconditional authority to place or not place children in

New Vision’s homes to receive New Vision’s services. There was no specific obligation in the

contract requiring DSHS to place children into New Vision homes. Because DSHS had

unilateral authority to place children in New Vision’s homes under the contract, no implied duty

of good faith and fair dealing attached to this contract term. Johnson, 84 Wn. App. at 762.

       2. Stop Placement Order and Removal of Children

       New Vision next argues that there was an implied duty of good faith and fair dealing in

the contract’s term allowing DSHS to stop the placement of children and to remove children

from the homes. We disagree.

       In support of this argument, New Vision points to the following contract term:

       DSHS may, without prior notice, suspend the Contractor’s performance of the
       Contract if the Contractor . . . is investigated by DSHS or a local, county, state, or
       federal agency regarding any matter that, if ultimately established, could either:

       a. Result in a conviction for violating a local, state, or federal law, or

       b. In the sole judgment of DSHS, adversely affect the delivery of services under
       this Contract or the health, safety or welfare of DSHS clients.




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No. 46914-6-II


CP at 535 (emphasis added). New Vision argues that this term gave DSHS discretion “to define

what circumstances give rise to the issuance of a stop placement order.”2 Br. of Appellant at 14.

This is incorrect.

        To the extent New Vision argues that DSHS did not have unconditional authority to stop

the placement of new children in its homes, we reject that argument above. And to the extent

New Vision argues that DSHS did not have unconditional authority to remove children from

New Vision homes, this argument fails as well. The contract term New Vision now cites did not

reduce DSHS’s unconditional authority to remove existing children. Instead, this contract term

gave DSHS unconditional authority to suspend the contract and to determine what would

adversely affect the delivery of services. Accordingly, no implied duty of good faith and fair

dealing attached. Johnson, 84 Wn. App. at 762.

        3. Corrective Action Plan

        New Vision next argues that DSHS owed it an implied duty of good faith regarding the

issuance and administration of a Corrective Action Plan. We disagree.

        The contract read in relevant part: “In the event that DSHS identifies deficiencies in

Contractor’s performance under this Contract, DSHS may, at its option, establish a Corrective

Action Plan.” CP at 535 (emphasis added). This term did not obligate DSHS to identify

deficiencies, nor did it obligate DSHS to establish a Corrective Action Plan. Accordingly, no

duty of good faith attached to DSHS’s issuance of a Corrective Action Plan. Rekhter, 180

Wn.2d at 113; Johnson, 84 Wn. App. at 762.


2
  There is no “stop placement order” in our record. Thus, we do not know the precise procedure
relevant to a “stop placement.” It appears that a “stop placement” involves at least the decision
not to place additional children, and it may also initiate the removal of children already placed.


                                                 9
No. 46914-6-II


       The contract continued: “When presented with a Corrective Action Plan, Contractor

agrees to undertake the actions specified in the plan within the timeframes given to correct the

deficiencies. Contractor’s failure to do so shall be grounds for termination of this Contract.” CP

at 535. This gave New Vision an obligation under the contract, which obligation was triggered

when DSHS presents it with a Corrective Action Plan. But it did not obligate DSHS to do

anything. Nor did this term obligate DSHS to terminate the contract if New Vision failed to

undertake the Corrective Action Plan’s actions. It merely provided that the failure to do so was

grounds for termination; it did not obligate DSHS to take any action. Accordingly, nothing in

this term implied a duty of good faith on DSHS. Johnson, 84 Wn. App. at 762.

       4. Determining End Date of Child’s Stay

       New Vision next argues that the contract implied a duty of good faith in removing

children from New Vision’s homes because it required DSHS to agree with New Vision in

setting an end date for the child’s stay. We disagree.

       The contract provided in relevant part that the parties would work together to determine

the length of a child’s stay in New Vision’s residences. Specifically, it read:

       Length of stay will be based on the individual needs of the youth and may not
       exceed the term of 12 months, unless approved in writing by the CA Regional
       Administrator . . . . The Contractor and CA shall mutually agree and establish a
       targeted exit date . . . . This mutually agreed upon exit date should be determined
       at the child’s initial case staffing meeting, held within 30 days of entry.

CP at 543 (emphasis added). This term obligated DSHS to do something: it was required to

work with the contractor to establish a targeted exit date at the initial case staffing meeting.

Therefore, as in Rekhter, this term obligated DSHS to use its discretion to mutually set an exit

date. See 180 Wn.2d at 113-14. Thus, there was an implied duty of good faith and fair dealing



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No. 46914-6-II


attached to the parties’ setting of a planned exit date for a child. See Br. of Resp’t at 26

(agreeing that this term included an implied duty respecting the setting of an exit date).

        But New Vision does not argue that DSHS violated the implied duty of good faith and

fair dealing when negotiating any child’s exit date. Instead, it argues that this term obligated

DSHS to use good faith when deciding to remove a child, even in an emergency. But we

interpret contracts as a whole, viewing any particular language in the entire contract’s context.

Viking Bank, 183 Wn. App. at 713. Therefore, we do not view this term of the contract in

isolation.

        When we view the contract as a whole, it is clear that this term governed only the initial

plan of how long a child should stay at New Vision’s facilities. By contrast, when DSHS

determined that reasons existed to terminate the contractor’s performance, it had sole discretion

to do so without notice under the stop placement provision. Thus, the contract contemplated that

DSHS retained the exclusive authority to stop placement when it determined that reasons existed

to do so. See WAC XXX-XX-XXXX (allowing DSHS to remove a child immediately without notice

to the foster care provider in “emergency situations”).

        In summary, while the implied duty of good faith applied to DSHS’s obligation to

mutually agree upon a target exit date when a child entered the placement, this implied duty did

not attach to the contract term allowing DSHS, at its sole discretion, to remove children from

New Vision homes. Accordingly, this claim fails.

        5. Termination of Contract

        Finally, New Vision argues that there was an implied duty of good faith in terminating

the contract. We disagree.



                                                 11
No. 46914-6-II


       New Vision argues that DSHS effectively terminated the contract when it removed the

children from its homes during the term of the contract. But the language of the contract made

clear that the contract expired on June 30, 2013. The removal of children before that date did not

terminate the contract.3

       In conclusion, none of these specific contract terms obligated DSHS to act. New Vision

misstates the law by arguing that DSHS had an implied duty of good faith because it had

discretion to determine when it would act. Instead, it had unconditional authority to determine

whether to act at all. It was under no obligation to place, retain, or replace children, or to issue a

Corrective Action Plan or to terminate the contract. Thus, no duty of good faith attached to these

terms. Put another way, the parties bargained for an agreement wherein DSHS maintained

considerable authority to take unilateral action in certain circumstances.4 Because the parties had

no agreement obligating DSHS to do the actions New Vision complains of, as a matter of law no

duty of good faith and fair dealing was implied. See SAK & Associates, Inc. v. Ferguson Const.,

Inc., 189 Wn. App. 405, 416, 357 P.3d 671 (2015); Johnson, 84 Wn. App. at 762. Therefore, we

affirm the summary judgment.5


3
  Even if DSHS terminated the contract before its expiration, no implied duty of good faith
attached to the termination provisions in the contract. This is because provisions permitting a
party to cancel an agreement at will do not imply a duty of good faith and the contract here
allowed DSHS to terminate at will. Mayer, 80 Wn. App. 422.
4
  Our interpretation of the contract is consistent with statutes and rules obligating DSHS to
protect the health and safety of the children in its custody. See RCW 74.13.031(6), (7). Our
reading of the contract, and these statutes, reflect the policy goal that DSHS should have the
ability to immediately react to potentially harmful situations.
5
 New Vision argues that if no implied duty of good faith applied, DSHS would have “carte
blanche” to make decisions about children’s placement based on improper factors such as race.



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No. 46914-6-II


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                    Worswick, J.
 We concur:



 Johanson, C.J.




 Lee, J.




Discrimination based on race would violate the law and the constitution, but that consideration
has nothing to do with whether this contract imposed any implied duty of good faith.


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