                                                                    FILED
                                                               SEPTEMBER 26, 2017
                                                             In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION TI1REE

CORNERSTONE EQUITIES, LLC, a               )
Washington Limited Liability Company,      )         No. 34828-8-111
                                           )
           Respondent/Cross Appellant,     )
                                           )
      v.                                   )
                                           )
MAHLEN INVESTMENTS, INC. a                 )
Washington Corporation, CRAIG L.           )         UNPUBLISHED OPINION
MAHLEN and KAREN L. MAHLEN,                )
husband and wife and DOES 1-10,            )
                                           )
      Appellants/Cross Respondents,        )
                                           )
KEITH SCRIBNER and JANE DOE                )
SCRIBNER, husband and wife,                )
                                           )
                         Respondents.      )

      SIDDOWAY, J. -A real estate tenant, Mahlen Investments, Inc. (Mahlen), and its

landlord, Cornerstone Equities, LLC (Cornerston¢), appeal and cross appeal the outcome

of a bench trial. The trial court awarded Cornerstone damages for Mahlen's breach by
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


anticipatory repudiation of the parties' commercial ~ease, but in an amount less than
                                                          I


requested. Mahlen argues that substantial evidencej does not support a handful of the trial

court's findings and its findings do not support its ~onclusion that Mahlen, rather than
                                                      !
                                                      i
Cornerstone, breached the lease. Cornerstone argu¢s that the court erred in measuring its

damages by a discounted rental rate it agreed to acdept temporarily, rather than the full
                                                      !

rate provided by the original lease.

          We find no error, affirm, and award Cornerstone its attorney fees and costs on
                                                      I




appeal.

                       FACTS AND PROCEDURAL! BACKGROUND

       The following facts are principally based on/the trial court's unchallenged findings

of fact (FF), which are verities on appeal. Findings! challenged by Mahlen will be

highlighted and discussed as appropriate. 1

       In spring 2013, Mahl en purchased the assets! of a business that operated two dry-

cleaning locations in Spokane-one that served only as a drop-off and pickup location,

and one where the dry cleaning was performed. FF 16-17, 20-21. Mr. Mahlen, the

corporation's owner, had no prior dry cleaning experience, but had owned a laundromat

in the past, and at the time owned a 46,000 square foot business park in Indiana.

FF 18-19.


          1
        See Clerk's Papers (CP) at 859-82 (Am. Findings of Fact & Conclusions of Law
- Following Bench Trial).

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No. 34828-8-III
Cornerstone Equities v. Mah/en Investments

                                                       I

       Mr. Mahlen quickly discovered that he had ~ufficient staff and resources to
                                                       I


process additional clothing at a small incremental cost and he began searching for an

additional drop-off and pickup location downtown. FF 22, 77, 80. He was particularly

interested in leasing a space from which he could offer drive-through service because

customers liked the convenience and a downtown competitor offered drive-through

service at both of its locations. FF 26, 79.

       After rejecting properties that did not have drive-through capacity, Mr. Mahlen

settled on a commercial property owned by Corner$tone. FF 81, 8, 9. That property,
                                                   '
located at 1101 North Division, had no existing driye-through capacity, but by July Mr.
                                                   I




Mahlen and Keith Scribner, one of Cornerstone's partners, signed a nonbinding letter of

intent that contemplated paving a drive-through lane and constructing a service window.

FF 29-30.

       On August 2, 2013, Mahlen and Cornerston~ executed a retail center lease for the

North Division property for a term of five years, eflfective September 1. FF 31, 34.

Paragraph 3 .1 (a) of the lease provided that improvements to the premises would be

constructed by Cornerstone "pursuant to and upon ~he time frame set forth on [an

attached] Exhibit 'C' ," which stated:

                                           EXHIBI'If "C"
                                         (Landlord'~ Work)

              Landlord agrees to complete the following:



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No. 34828-8-III
Cornerstone Equities v. Mahlen Investments


                1) Install ADA restroom. Restrobm to be completed with
                   handicapped bars but does not include towel, toilet and soap
                   dispensers
                2) Sheet rock exterior walls inside space, tape mud and prime
                   ready for paint                  ·
                3) Provide electrical box every 12 feet in exterior walls
                4) Install grid ceiling
                5) Install Ceiling tile and lighting
                6) Install back door approx. 3ft by 7ft in rear of space next to
                   bathroom (South wall)            ·
                7) Add a 5ft by 5ft window in redr side of space approximately
                   10 feet from the rear west wall
                8) Pave or asphalt around west siµe of building approximately
                   12 feet wide from the front of building to rear of building
                   (This item cannot be completed [by] possession date but
                   will be completed within 90 ~ays after the possession date)
                9) Provide washer dryer hookup in east wall next to restroom
                   with hot and cold water, gas s~pply, 110 outlet for washer,
                   230 volt outlet for dryer, drye~ vent, gas vent and gas line for
                   dryer, and a gas or electric 40 ~allon hot water heater.

Ex. P 1-9, P 1-44 (emphasis added); see FF 47.

       Paragraph 5.3 of the lease provided that "[i]f for any reason whatsoever landlord

has not delivered the Premises to Tenant with Landlord's Work substantially complete on

or before December 1st, 2013," then, "as Tenant's sole and exclusive remedy, this Lease

shall be deemed automatically cancelled, and shall ,'have no force or effect .... " Ex. P 1-

11; FF 39. Mahlen ultimately took possession oft~e premises on October 18, 2013, and

Cornerstone completed eight of the nine items listed in exhibit C of the lease by the third

week of October. FF 48, 87. Only item 8, the paving of the drive-through lane, remained

uncompleted. FF 48. By the term of exhibit C highlighted above, the paving was not


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No. 34828-8-111
Cornerstone Equities v. Mahlen Investments


required to be completed until January 16-90 days after the possession date and 7 weeks

after the "automatic cancellation" date provided by ~aragraph 5 .3. Ex. P 1-11; FF 4 7-48,
                                                     1




87.

      .Cornerstone took the position that its obligat~on to complete the paving was

extended beyond January 16 by article 20 of the leajse, after it learned from the city of
                                                     I



Spokane that a city-owned alley adjacent to Corner$tone's property-two feet of which

fell within the 12-foot lane Cornerstone had agreed ;to pave-had to be vacated before the
                                                     1




paving could be done. Clerk's Papers (CP) at 6. Article 20 excuses a party's delayed

performance in certain circumstances, including w~en the delay has a cause "beyond [the
                                                     !




party's] reasonable control." Ex. P 1-25. 2 And on February 24, 2014, the parties
                                                     !

executed a written amendment to the lease that recdgnized Cornerstone's lease obligation



       2
           Article 20, captioned "Delaying Causes," ~rovides:
              If either party is delayed in the perfortnance of any covenant of this
      Lease because of any of the following cause~ (referred to elsewhere in this
      Lease as a "delaying cause"): acts of the otijer party, action of the
                                                    to
      elements, war, riot, labor disputes, inability procure or general shortage
      of labor or material in the normal channels of trade, delay in transportation,
      delay in inspections, or any other cause beyond the reasonable control of
      the party so obligated, whether similar or dissimilar to the foregoing,
      financial inability excepted, then, such performance shall be excused for the
      period of the delay; and the period for such performance shall be extended
      for a period equivalent to the period of such delay, except that the foregoing
      shall in no way affect Tenant's obligation to pay rent or any other amount
      payable hereunder, or the length of the term ,of this Lease.

Ex. P 1-25 (second emphasis added).

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No. 34828-8-111
Cornerstone Equities v. Mah/en Investments


to pave or asphalt around the west side of building but stated, "Due to unforeseen

circumstances, Lessor, to date, has not yet received;the necessary permits from the City

of Spokane to complete this improvement." Ex. P 5-1; FF 66. The amendment

continued:

      Therefore, Lessor has agreed to lower the total base rent to half of the base
      rent to $1092.50 ... each month beginning March 1st 2014, until the proper
      permits are issued and this improvement is completed.

Ex. P 5-1. After providing that Cornerstone would increase its promised improvements

to include a pylon sign as well, the amendment statFd:

      The month this improvement and the pylon sign referred in second
      paragraph of this addendum are completed, tent shall be prorated for the
      month and Lessor will provide Lessee an accounting of that prorated
      month.

Id. The amendment finally provided that "except ajs herein modified, all terms and
                                                   '
conditions of said Lease dated September 1st, 2013, shall be the same and remain in full

force and effect." Id. Although Mr. Mahlen attempted to negotiate a completion date for

the drive-through in the February amendment, none was included in the amendment as

finalized and signed. FF 67.

      Several months later, in June 2014, Mr. Ma~len called Mr. Scribner and said: "I

have found out that that drive-thru will never get paved and I'm moving out." Report of

Proceedings (RP) at 32; FF 68.




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No. 34828-8-III
Cornerstone Equities v. Mah/en Investments

                                                         '
       Mahlen did not pay rent for July. FF 70. 3 Rent was due the first day of each

month pursuant to paragraph 6.1 of the lease, and article 27, section 1 of the lease

provided that Mahlen's failure to pay rent when due would constitute a material breach

and result in default. Ex. P 1-12, P 1-29; FF 35-36. On July 16, 2014, a Cornerstone

agent e-mailed a written notice of default to Mr. Mahlen for the nonpayment of the rent

due on July 1. FF 71.

       On August 1, 2014, Mahlen, through counsel, gave formal notice that it would
                                                     '
vacate the premises by August 31, 2014, which it did. FF 72-73, 94.

       The trial court's conclusions of law (CL) entered following the bench trial

contained a number of findings of fact. On appeal, we review findings of fact

erroneously labeled as conclusions of law as the fa~tual findings that they are. E.g.,

Willener v. Sweeting, 107 Wn.2d 388,394, 730 P.2d 45 (1986). Among the findings of

fact included in the trial court's conclusions were the following:

       •     That both Mr. Scribner and Mr. Mahlen are experienced in negotiating and
       executing commercial leases, see CL 2;

       •     That the lease amendment of February 24, 2014, was supported by mutual
       consideration in that Cornerstone received an extension of time for completion of
       the paving in exchange for Mahlen receivitj.g a 50 percent reduction in rent until
       paving was completed and the installation Of pylon signage at no cost to Mahlen,
       see CL 9;


       3 As discussed below, Mahlen disputes the trial court's finding that it failed to pay
rent after June because it claims it had "sufficient funds on deposit" to cover rent July and
August 2014. Br. of Appellant at 46.

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No. 34828-8-IiI
Cornerstone Equities v. Mah/en Investments


        •     That the parties to the lease amendment had equal opportunity to negotiate
        the contractual terms, see CL 1O;

        •      That before Mr. Mahlen's June 2014 phone call notifying Mr. Scribner of
        his intent to vacate the premises at the end tjf August 2014, Mr. Mahlen had not
        expressed frustration with the delays in con$tructing the drive-through nor
        provided written notice of the alleged default as required under article 3 7 of the
        lease, and Mr. Scribner was unaware of Mr. Mahlen's frustrations, see CL 21-22;
        and

        •      That considering the nature of the coqtract, the position of the parties, their
        intent, and the circumstances surrounding p~rformance, Cornerstone was in the
        process of performing its obligation to complete the drive-through in good faith
        and in a reasonable time through the time Mahlen gave notice of its intent to
        vacate the premises. See CL 17-18.

       On December 1, 2014, Cornerstone filed suit for damages for breach of the lease

and to enforce a personal guarantee. In an answer and third party complaint against Mr.

Scribner and his wife, Mahlen contended it had bee:n fraudulently induced to enter into

the lease and refrained from terminating it by Cornerstone's assurances that the drive-

through could be built and was being diligently pursued. It also contended that its

performance was excused by Cornerstone's failure to complete the paving within 90 days

of possession, as a result of which it claimed it had a continuing right under paragraph 5.3

to terminate the lease.

       Cornerstone contended that even if its progr¢ss on the drive-through had arguably

been insufficient, the parties' lease afforded Corner:stone the opportunity to cure in the

event it defaulted, and a written notice of default was required. Article 3 7 of the lease

provides:


                                              8
    No. 34828-8-111
    Cornerstone Equities v. Mah/en Investments


           In the case of a default by Landlord, Landloid shall commence promptly
           to cure such default immediately after receir1t of written notice from Tenant
           specifying the nature of such default and shall complete such cure within
           thirty (30) days thereafter, provided that if the nature of such default is such
           that it cannot be cured within said thirty (30) day period, Landlord shall
           have such additional time as may be reasonably necessary to complete its
           performance, so long as Landlord has proceeded with diligence after receipt
           of Tenant's notice and is then proceeding with diligence to cure such
           default.

    Ex. P 1-29; FF 43. Article 22 of the lease mandates that all notices, requests, and

    demands be in writing. FF 41.

           Following a bench trial, the trial court found that Mahlen was the breaching party

    and entered judgment in favor of Cornerstone, awatding damages measured by the full

    monthly rental provided by the original lease. Mahlen moved for reconsideration that

    was granted in part; the trial court reduced the damage award by half, relying on the

    reduced rental amount provided by the February 2014 amendment.

           Mahlen appeals and Cornerstone cross appeals.

                                            ANALYSIS

                                              APPEAL

           Following a bench trial and the trial court's weighing of the evidence, our review

    is limited to ascertaining whether the findings of fact are supported by substantial

    evidence and, if so, whether the findings support the conclusions of law and the
I   judgment. City of Tacoma v. State, 117 Wn.2d 348, 361, 816 P.2d 7 (1991). The
I
I
I   appellant's brief must include a separate assignment of error for each finding of fact a
i
I
!                                                 9
i
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


party contends was improperly made. RAP 10.3(g). Unchallenged findings are verities

on appeal. Moreman v. Butcher, 126 Wn.2d 36, 39, 891 P.2d 725 (1995). Of the trial

court's 97 findings, Mahlen assigns error to only 5: findings 58, 59, 60, 70, and 97. Its

overarching objection to the trial court's conclusions are to its conclusion that

Cornerstone did not breach a duty to complete the drive-through within the reasonable

time a court will imply when a contract-here the lease amendment-is silent as to time

for performance. It also contends that the trial cou~ erred by finding that Mr. Scribner

and Cornerstone did not negligently or intentionally misrepresent an intention to

complete construction of the promised drive-through.

              Sufficiency of evidence and conclusions in support of the trial
                                court's findings on breach

       Mahl en challenges finding 5 8 on the basis that architectural designs the court

found were obtained by Mr. Scribner from Martin 1. Hill Architecture between February

and April 2014 were in fact obtained by Mr. Scribner earlier, according to the architect's

invoice indicating his work was limited to the period between April 2013 and January 20,

2014. Br. of Appellant at 31. Mahlen concedes the trial court's finding that structural

calculations were obtained by Mr. Scribner in the February-April 2014 time frame, but

argues they were sign-related, not drive-through related, and were an inconsequential

amount of the work that needed to be done. Id. at 32.




                                             10
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


       Finding 59, that "[s]ometime between November 2013, and January 2014, Mr.

Scribner learned that Cornerstone owned only 10 feet between the building and west

property line, not the 12 feet required for the drive-thru," is challenged. The finding is

supported by Mr. Scribner's testimony that he learned that Cornerstone owned 10 rather

than 12 feet after the city stopped excavation by Cornerstone's contractor on November

4, 2013. Mr. Scribner explained that he had thought Cornerstone owned 12 feet because

it had demolished what he thought was a 12-foot building that extended west to the alley

from the western wall of the existing building.

       Mahlen's only citation to the record in support of its challenge to the trial court's

finding that Mr. Scribner was unaware of the true distance to the property line is to

exhibit P 82, a site plan for a remodel of the North Division property by Martin Hill

produced in 2012. Br. of Appellant at 39. The exhibit itself tells us nothing about when

or how carefully the plan was reviewed by Mr. Scribner. Mahlen does not cite any

admission by Mr. Scribner that the site plan put him on notice of the true distance to the

relevant property line. A cropped portion of exhibit P 82 is reproduced below and is

distorted horizontally to remain legible but to better fit the page. The lower left corner of

the plan is where the drive-through would be, and as can be seen, it does not clearly

reveal that there is only 10 feet between the building and the property line:




                                             11
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments



                                                 y 7 - - · '" . -- --__._. ,, __ -------------------
  ; rF····
       - ----- -- .SJ                           --V - ~------               ---------f~
                                                                                               ~o\
                                                                                                ~ !
   :).. I
   ~I
          I

    "'( I
   .....J


    ~
   i q,/
                                                                                            ~1          I
  --
                                                                                            L\ \            \




                          I a   =   2'::'.? '                                                     Spoknne c·,ounty No.: I•
                                                                                                  Cornerstone v. Muhlcn




Finding 59 is thus supported by substantial evidence.

        Finding 60 is challenged for its statement that vacation of the city's alley adjoining

Cornerstone's property "would require approval from the landowners abutting the alley

and from the Spokane City Council," based on Mahlen's contention that it would only



                                                    12
No. 34828-8-111
Cornerstone Equities v. Mah/en Investments


require approval from one other owner, who, together with Cornerstone, owned a

majority of the land abutting the alley. Br. of Appellant at 33-34.

       Mr. Scribner testified inconsistently on this issue. He twice stated the city told

him he would need approval from all of the neighboring property owners. He also stated

that when evidence was presented at trial that only majority ownership of the abutting

property was required, he was "really surprised," because it was the first time he had

heard that information. RP at 368. But in exhibit D-102, a time line Mr. Scribner

prepared and that Mahlen cites in challenging finding 60, Mr. Scribner wrote, with

reference to January 2014:

       [Mr. Johnson] told me I had to get a list of all the property owners and have
       all them involved in the vacation process as the majority would need to
       improve this and the entire alley would need to be vacated.

Ex. D-102, at 6. When cross-examined about this statement, Mr. Scribner testified:

      A Okay. A list of the property owners and have them all involved in a
        vacation process as majority would need to approve this and the entire
        alley would need to be vacated.
      Q The majority, right?
      A Correct.
      Q And the majority is what Eric Johnson testified to yesterday?
      A That's not what he told me.

      Q And then you wrote in your timeline that you knew as of January 2014
        that it would be a majority; isn't that correct?
      A That is correct.

RP at 369-70 (emphasis added). While Mr. Scribner's testimony is somewhat confusing,

given the ambiguity of the time line entry, undisputed evidence that Mr. Scribner suffers

                                             13
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


from memory issues, and his actions in requesting a title map and trying to contact

multiple neighboring property owners, the trial court could reasonably find that he

believed in 2014 that unanimous consent was required. It is also possible that Mr.

Scribner understood "majority" to mean the numerical majority of the abutting

landowners rather than only those who owned a majority of the abutting property,

however few that might be. Either way, finding 60 is supported by substantial evidence.

       Mahlen challenges finding 70's statement that it only paid rent through June 2014

on the basis that it paid a deposit at the outset of the lease that was sufficient, if applied,

to cover July and August rent. Br. of Appellant at 46. But under paragraph 5.4 of the

lease, the deposit on which Mahlen relies was applicable to its defaults in Cornerstone's

"sole discretion." Ex. P 1-11. If Cornerstone chose not to apply the deposit to defaults, it

was not required to return it to Mahlen until a reasonable time after expiration of the

lease, which would be, at the earliest, five years after the beginning lease date. Finding

70 is supported by substantial evidence.

       Finally, Mahlen does not contest the accuracy of the trial court's finding 97, which

states in relevant part that in conjunction with efforts to vacate the alley after the

February 2014 amendment, Cornerstone "contacted various neighbors seeking to inquire

as to their thoughts on the vacation." CP at 871. Mahlen merely argues that these

contacts were not evidence of "progress" toward vacating the alley since a majority of the

land abutting the alley was owned by Cornerstone and a single other neighbor.

                                               14
No. 34828-8-111
Cornerstone Equities v. Mah/en Investments


       Even if we ignore all of the findings that are challenged by Mahlen, the trial

court's remaining findings support its conclusions oflaw, which in tum support its

judgment in Cornerstone's favor. Substantial evidence supports the court's finding that

the February 24, 2014 lease amendment modified the requirement of the original lease

that the paving or asphalting around the west side of the building be completed by 90

days after possession. This is clear from the amendment's plain language that "[d]ue to

unforeseen circumstances, Lessor, to date, has not yet received the necessary permits

from the City of Spokane to complete this improvement. Therefore, Lessor has agreed to

lower the total base rent to half of the base rent ... until the proper permits are issued and

this improvement is completed." Ex. P 5-1. It is frivolous to argue, as Mahlen does, that

the concluding statement, "[E]xcept as herein modified, all terms and conditions of [the

original] Lease ... remain in full force and effect," preserved Mahlen's right to terminate

the lease under paragraph 5 .3 for failure to meet the original deadline.

       Applying Washington law, the court correctly concluded that with the elimination

of a date for completion of the drive-through improvement, it was to impose a reasonable

time determined by the nature of the contract, the positions of the parties, their intent, and

the circumstances surrounding performance. See Pepper & Tanner, Inc. v. KEDO, Inc.,

13 Wn. App. 433, 435, 535 P.2d 857 (1975). "What may be considered a reasonable time

is usually a mixed question oflaw and fact. Normally, a determination of what




                                              15
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


constitutes a reasonable time is a question for the trier of fact." Jarstad v. Tacoma

Outdoor Recreation, Inc., 10 Wn. App. 551,558,519 P.2d 278 (1974) (citation omitted).

       We need not review the trial court's numerous findings addressing the

reasonableness of the time taken by Cornerstone because Mahlen's failure to provide

notice and an opportunity to cure is an independently sufficient basis on which to uphold

the trial court's conclusion that only Mahlen breached the lease. 4

       The trial court's findings support its conclusion that Mahlen never provided

written notice to Cornerstone that it had (allegedly) defaulted by failing to complete the

paving or asphalting within a reasonable time. Written notice followed by a period of 30

days to cure (or longer if, despite diligence, additional time is necessary) is required by

article 37. Ex. P 1-35. Article 22 reinforces that all notices must be in writing. Mahlen

argues that it substantially complied by waiting over 30 days after its June telephone call

to move out. But its notice in June was not written. See Mike M Johnson, Inc. v. County

of Spokane, 150 Wn.2d 375, 388, 78 P.3d 161 (2003) (affirming the well established



       4
        Mahlen makes much of finding 95, that "[t]he Court does not find that
[Cornerstone] substantially performed the work that was required of it by the parties'
Lease and their February 2014 amendment." That finding was added after Mahl en
moved for reconsideration and argued that the February 2014 reduction of rent by half
demonstrated that the construction of the drive-through was a material part of the
promised improvements. The court agreed. Finding 95 is inconsequential, since it is
undisputed that Cornerstone abandoned construction of the drive-through. It was
permitted to, as a result of Mahlen's breaches by anticipatory repudiation and
nonpayment of rent.

                                             16
No. 34828-8-111
Cornerstone Equities v. Mah/en Investments


principle that procedural contract requirements such as written notice must be enforced

absent waiver or modification). Nor would the June communication reasonably be

understood by Cornerstone as affording it the right and opportunity to cure the default.

       Similarly, the August 1, 2014 letter stating that Mahlen would vacate on August

31 provided 30 days' notice and this time was written, but it did not state that it was a

notice of default under the lease nor did it acknowledge any right of Cornerstone to cure.

Also, by the time of the August letter, Mahlen had done more than breach by anticipatory

repudiation-it had defaulted in payment of rent. (A default of which it was given notice

and never cured.).

       The trial court's findings support its conclusion that Cornerstone was deprived of

the opportunity to cure the asserted default within 30 days. They support its conclusion

that even if Mahlen did not breach by anticipatory repudiation by announcing an

intention to vacate at the end of August, it breached the lease by ceasing to pay rent and

vacating the premises without ever having adhered to the requirements of article 3 7.

                                     Misrepresentation

       Mahlen argues the trial court erred when it found no negligent or intentional

misrepresentation by Cornerstone-misrepresentation it asserted both as an affirmative

defense to breach of contract and as tort counterclaims.

       The tort of negligent misrepresentation requires proof that (1) a defendant supplied

information for the guidance of others in their business transactions that was false, (2) the

                                             17
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


defendant knew or should have known that the information was supplied to guide the

plaintiff in business transactions, (3) the defendant was negligent in obtaining or

communicating false information, (4) the plaintiff relied on the false information supplied

by the defendant, (5) the plaintiffs reliance on the false information supplied by the

defendant was justified, and (6) the false information was the proximate cause of

damages to the plaintiff. Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d

619 (2002). Intentional misrepresentation-fraud-requires proof of (1) a representation

of an existing fact, (2) materiality, (3) falsity, (4) the speaker's knowledge of the

representation's falsity, (5) intent of the speaker that it should be acted on by the plaintiff,

(6) plaintiffs ignorance of its falsity, (7) plaintiffs reliance on the truth of the

representation, (8) plaintiffs right to rely on the representation, and (9) damages suffered

by the plaintiff. W Coast, Inc. v. Snohomish County, 112 Wn. App. 200, 206, 48 P.3d

997 (2002). Both torts must be proved by clear, cogent, and convincing evidence. Baik,

147 Wn.2d at 545 (negligent misrepresentation); Elcon Constr., Inc. v. E. Wash. Univ.,

174 Wn.2d 157,166,273 P.3d 965 (2012) (fraud).

       Mahlen argues that Cornerstone was negligent in determining whether or not it

could construct the drive-through and the process by which that would happen; falsely

representing first, that the drive-through could be completed by August 31, 2013, and

later, that it could be completed within 90 days of Mahlen's possession. Br. of Appellant

at 38. The trial court did not make express findings of any of the facts material to

                                               18
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


Mahl en's tort claims, so those facts are deemed to have been found against Mahl en.

State v. Souza, 60 Wn. App. 534, 541, 805 P.2d 237 (1991) (citing Crites v. Koch, 49

Wn. App. 171,176,741 P.2d 1005 (1987) for the "long-standing rule in civil cases").

And the trial court's conclusion oflaw 39 contains findings of fact in support of its

determination that Mahlen failed to prove the elements of its negligent misrepresentation

and fraud claims.

       Mr. Scribner testified at trial that before entering into the lease with Mahlen, he

had never received any information from any source that caused him to believe a drive-

through of the sort he and Mr. Mahlen had discussed could not be incorporated into the

property. He testified that even before signing the lease with Mahlen, he had begun to

take steps toward getting the drive-through constructed. The trial court made the

following subsidiary findings of fact in support of its finding (labeled as a conclusion)

that Mr. Scribner never provided false information but merely underestimated the work

required to complete the drive-through:

      Mr. Scribner never provided false information to the Defendants ....
      Once the degree of work was realized, Mr. Mahlen acquiesced to the delay
      by negotiating and executing the Amendment without the addition of
      completion date. More compellingly, not only did Mr. Scribner complete
      eight of the nine obligations contained in "Exhibit C" to the Lease, in
      attempting to complete the drive-thru, and prior to Mr. Mahlen's
      anticipatory breach, Mr. Scribner enlisted contractor Gerald Kofmehl to
      provide a bid regarding a drive-thru, received a bid from Arrow Concrete &
      Asphalt concerning the construction of the drive-thru, realized the need for
      a retaining wall on Boone Court, LLC's, property line, received a bid from
      All Star Excavation to excavate drive-thru, authorized All Star Excavation

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No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


       to begin work on the drive through area, enlisted Metro Engineering to
       create a grading plan, submitted the grading plan to the City, obtained
       architectural designs from Martin J. Hill Architecture, Inc., obtained
       structural calculations from Inland Northwest Engineering, Inc., received
       information from Stewart Title of Spokane on who all of the property
       owners were with land abutting the alley, contacted all of the property
       owners to seek approval for the vacation, and obtained an application to
       vacate the alley from the City.

CP at 879.

       The representations about which Mahlen complains concerned future events. As

such, they did not concern "presently existing fact[ s]"-an explicit element of a fraud

claim and also a prerequisite for a negligent misrepresentation claim:

       Although promises of future conduct may support a contract claim (or
       similar claim such as promissory estoppel in an appropriate case), failure
       to perform them cannot alone establish the requisite negligence for
       negligent misrepresentation. This is because of the absence of any false
       representation as to a presently existing fact, a prerequisite to a
       misrepresentation claim.

Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 182, 876 P.2d 435 (1994) (citation

omitted).

       Mahlen also contends Cornerstone committed negligent misrepresentation when it

stated that the delay in the project was the result of waiting on the city to issue permits.

The portion of the record it cites for support is testimony that Cornerstone made this

representation in June 2014, after both the lease and amendment had been executed. See

RP at 131. There is no evidence Mahlen relied on that information to its detriment. Far

from relying on the statement, Mr. Mahlen undertook his own investigation in June, and

                                              20
No. 34828-8-111
Cornerstone Equities v. Mah/en Investments


on learning that only one permit was pending at the city, notified Mr. Scribner that

Mahlen would vacate in August.

       Mahlen further contends Mr. Scribner could not have intended to construct the 12-

foot drive-through because he knew Cornerstone only owned 10 feet of the width of

property needed. We rejected that argument in finding sufficient evidence to support

finding 59.

                                        Damage issues

       Mahlen's brief raises two damage issues, one of which was never raised in the trial

court until Mahlen moved for reconsideration.

       Mahlen argues that even if Cornerstone is entitled to damages, the trial court erred

by awarding Cornerstone rent for July and August 2014, in light of the deposit Mahlen

was required to make under the lease. As previously discussed, the deposit was available

to be applied to defaults at Cornerstone's discretion, with the balance, if any, to be

returned to Mahlen within a reasonable time following expiration of the lease term. Any

part of the deposit that was not taken into consideration in the court's October 2016

judgment5 therefore needs to be taken into consideration before a final disposit!on of the

parties' rights and interests. Mahlen does not show that it will not be. Cornerstone points

out that it did not elect to accelerate rent, the premises have not been relet, the lease term



       5
           See CP at 885 (J. After Trial) (crediting Mahl en with $2,643 for "deposit").

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No. 34828-8-111
Cornerstone Equities v. Mah/en Investments


has not expired, and future litigation is contemplated. Second Am. Br. of Resp't at 38.

That argument is a sufficient explanation. Mahlen offers no argument in reply.

        Mahlen also raises a challenge to common area maintenance charges. For the first

time in a motion for reconsideration, it argued ( 1) that the tenants, not Cornerstone, did

all of the maintenance work, and (2) under Viking Bank v. Firgrove Commons 3, LLC,

183 Wn. App. 706, 334 P.3d 116 (2014), Cornerstone cannot recover management fees

that it unilaterally incurred for its own benefit.

        Viking Bank turned on construction of language of the parties' lease in that case.

IfMahlen contends that Cornerstone's damage claim included common area maintenance

charges or management fees that Mahlen never agreed to pay, it needed to rely on its own

lease, not a 2014 construction of Viking Bank's lease. It also needed to present evidence

during the trial of the amount and nature of the fees and argument of why they were not

owed.

        The trial court denied Mahl en's motion for reconsideration on this point. We find

no error or abuse of discretion in that denial.

                                        CROSS APPEAL

        Cornerstone cross appeals the trial court's decision that reduced its award of

unpaid rent damages to 50 percent as provided by the February amendment, arguing that

the trial court originally found, correctly, that once Mahlen breached by anticipatory

repudiation, Cornerstone was excused from its obligation to construct the drive-through

                                               22
No. 34828-8-III
Cornerstone Equities v. Mah/en Investments


and was therefore entitled to the full monthly rent amount called for by the original lease.

Br. ofResp't & Cross Appellant at 41-42. 6

       We agree that the trial court correctly found that Mahlen's breach by anticipatory

repudiation excused Cornerstone from further efforts to complete the drive-through. But

we disagree that it revived the original amount of the rent. The effect on the rent is

governed by the terms of the parties' lease, as amended. And the lease amendment

provides, in relevant part:

       Lessor has agreed to lower the total base rent to half of the base rent to
       $1092.50 ($2185 divided by 2 equals $1092.50) each month beginning
       March 1st 2014, until the proper permits are issued and this
       improvement is completed. This shall include the pylon sign as well. The
       month this improvement and the pylon sign referred in second paragraph of
       this addendum are completed, rent shall be prorated for the month and
       Lessor will provide Lessee an accounting of that prorated month. Common
       area expense charges each month shall remain the same per the lease
       agreement.

Ex. P 5-1 (emphasis added).

       The present contingency might not have been contemplated by the parties. But we

will not rewrite their agreement and impose an outcome different from that literally


       6
         Mahlen argues that RAP 2.5(b) precludes Cornerstone from appealing this issue
because it accepted the benefits of the trial court's decision without posting security. The
rule provides in relevant part that a party may accept the benefits of a trial court decision
without losing the right to obtain review "if, regardless of the result of the review based
solely on the issues raised by the party accepting benefits, the party will be entitled to at
least the benefits of the trial court decision." RAP 2.5(b)(iii). That is the case with
Cornerstone and the issues it raises. It has not lost the right to appeal the allegedly
insufficient award of damages.

                                             23
No. 34828-8-111
Cornerstone Equities v. Mah/en Investments


provided by their agreement. See Wagner v. Wagner, 95 Wn.2d 94, 101, 621 P.2d 1279

( 1980) (In construing a contract, a court must interpret it according to the intent of the

parties as manifested by the words used; we neither disregard contract language ... nor

revise the contract under a theory of construing it.). The event that triggers a renewed

obligation to pay the full amount of rent has not occurred.

                                    ATTORNEY FEES

       Both parties request attorney fees and costs on appeal under RAP 18.1 and their

lease, which provides for an award of reasonable attorney fees and costs to the prevailing

party. As the prevailing party, Cornerstone is awarded reasonable fees and costs on

appeal subject to its compliance with RAP 18.l(d).

       Affirmed.

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

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

2.06.040.




                                                     d]Uw ~.~-
                                                      dow•y.J.
WE CONCUR:




                                                   Pennell, J.



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