      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

AUBURN VALLEY INDUSTRIAL
CAPITAL LLC, a Delaware limited                 NO. 69568-1-
liability company,
                                                DIVISION ONE
                     Respondent,

                                                UNPUBLISHED OPINION

                                                                            —     He
ROSS B. HANSEN and JANE DOE
HANSEN, individually and their
marital community, d/b/a
NORTHWEST TERRITORIAL MINT;                                                       ;'-'~o;:

NORTHWEST TERRITORIAL MINT,                                                 X2»   com.

LLC, a Washington limited liability
company,
                                                                            en
                                                FILED: July 14, 2014
                     Appellants.


       Leach, J. — Ross Hansen, d/b/a/ Northwest Territorial Mint, and

Northwest Territorial Mint LLC (collectively NW Mint) appeal the trial court's

findings of fact, conclusions of law, and judgment holding NW Mint liable for

Auburn Valley Industrial Capital LLC's remedial action costs under the Model

Toxics Control Act (MTCA), chapter 70.105D RCW, and for damages for

breaching its commercial lease with Auburn. NW Mint also appeals the court's

supplemental judgment and order awarding attorney fees and costs to Auburn.

Substantial evidence supports the trial court's findings of fact, which support its

conclusions that NW Mint breached the lease.      Because NW Mint identifies no
NO. 69568-1-1/2



costs recoverable under the MTCA that are not recoverable under the lease, we

do not decide if the MTCA applies to this case. NW Mint fails to show that the

trial court abused its discretion when it awarded costs and fees to Auburn. We

affirm.

                                        FACTS


          NW Mint is a full service mint that fabricates coins and other metallic

items. In May 2002, Ross Hansen, d/b/a/ Northwest Territorial Mint, signed a six-

year agreement with MegaWest LLC to lease suite 101 of a commercial-
industrial property.1 The building was new when this lease began, and Ross
Hansen, d/b/a/ Northwest Territorial Mint, was the first tenant in suite 101. In

July 2007, MegaWest sold the building and assigned its interest in the lease to
Auburn. NW Mint occupied the premises and was a tenant under the lease from

December 31, 2002, until April 30, 2010, when the lease ended.

          Section 11 of the lease stated,


      1 In December 2002, Hansen formed Northwest Territorial Mint LLC, which
was not a party to this lease agreement. The trial court concluded,
          Northwest Territorial Mint, LLC was acting as a Tenant under the
          Lease and as an operator of the mint business at the Auburn
          property from December 31, 2001 through the end of NW Mint's
          lease in April of 2010. NW Mint's operations at the Auburn property
          were held out to the public as operations of Northwest Territorial
          Mint, LLC. Northwest Territorial Mint, LLC succeeded to enough of
          Hansen's rights and obligations under the Lease to be considered a
          Tenant under the Lease. At a minimum, Northwest Territorial Mint,
          LLC occupied the leased premises as its principal place of business
          and made all of the monthly Lease payments to Auburn from 2007
          until the end of the Lease.
The premises leased is located in an area zoned as M-1, which permits uses
including "residential, daycare, preschools, nursery schools, health and fitness
 clubs, restaurants, and other uses."

                                            -2-
NO. 69568-1-1/3



     HAZARDOUS WASTE. Tenant shall not store, generate, dispose
     of or otherwise allow the release of any hazardous waste or
     materials in, on or under the Premises, Property or Project or any
     adjacent property, or in any improvements placed on the Premises.
     Except as otherwise provided, Tenant represents and warrants to
     Landlord that Tenant's intended use of the Premises does not
     involve the use, production, disposal or bringing on to the Premises
     of any Hazardous Waste. As used herein, the term "Hazardous
     Waste" includes any substance, waste or material defined or
     designated as hazardous, toxic or dangerous (or any similar term)
     by any federal, state or local statute, regulation, rule or ordinance
      now or hereafter in effect, including, but not limited to, the
     Comprehensive Environmental Response, Compensation and
     Liability Act, 42 U.S.C. § 9601, or the Washington Model Toxics
     Control Act ("MTCA"), RCW 70.105D.010 et seq. Tenant shall
     promptly comply with all statutes, regulations and ordinances, and
      with all orders, decrees or judgments of governmental authorities or
      courts having jurisdiction, relating to the use, collection, treatment,
      disposal, storage, control, removal or cleanup of Hazardous Waste
      in, on or under the Premises or any adjacent property, or
      incorporated in any improvements, at Tenant's expense.            After
      notice to Tenant and a reasonable opportunity for Tenant to effect
      such, Landlord may, but is not obligated to, enter upon the
      Premises and take such actions and incur such costs and
      expenses to effect such compliance as it deems advisable to
      protect its interest in the Premises; provided, however, that
      Landlord shall not be obligated to give Tenant notice and an
      opportunity to effect such compliance if (i) such delay might result
      in material adverse damage to Landlord or the Property, (ii) Tenant
      has already had actual knowledge of the situation and a reasonable
      opportunity to effect such compliance, or (iii) an emergency exists.
      Whether or not Tenant has actual knowledge of the release of
      Hazardous Waste on the Premises or Property or any adjacent
      property as the result of Tenant's use ofthe Premises, Tenant shall
      reimburse Landlord for all costs and expenses incurred by Landlord
      in connection with such compliance activities. Tenant shall notify
      Landlord immediately of any release of any Hazardous Waste in,
      on, under or from the Premises, Property or Project. Tenant shall
      indemnify, defend and hold harmless Landlord against any and all
      losses, liabilities, suits, obligations, fines, damages, judgments,
      penalties, claims, charges, cleanup costs, remedial actions, costs
      and expenses (including, without limitation, consultant fees,
      attorneys' fees and disbursements) which may be imposed on,
      incurred or paid by, or asserted against Landlord or the Premises,
      Property or Project by reason of, or in connection with (i) any


                                        -3-
NO. 69568-1-1/4


      misrepresentation, breach of warranty or other default by Tenant
      under this Lease, or (ii) the acts or omissions by Tenant under this
      Lease, or (iii) the acts or omissions of Tenant, or any sublessee or
      other person for whom Tenant would otherwise be liable, resulting
      in the release of any Hazardous Waste. This indemnity and
      Tenant's other duties under this paragraph 11 shall survive the
      termination of this Lease.

Section 13 of the lease stated,

      Tenant will at all times during the Term keep the Premises and all
      systems therein and the doors and windows thereof neat, clean and
      in good order, repair and in a sanitary condition. . . . Except for
       reasonable wear and tear and damage by fire or unavoidable
       casualty, Tenant will at all times preserve the Premises in as good
       repair as they are now or may hereafter be put to. All repairs shall
      be at Tenant's sole cost and expense, except for repairs required
      for the outside roof, exterior walls and foundation which shall be
       Landlord's responsibility. Tenant will, at all times, cause the
       Premises to comply with all ordinances, regulations, rules or orders
       of every governmental entity undertaking jurisdiction over the
       Premises.

This provision also stated, "Tenant agrees that at the expiration or sooner

termination of this Lease, Tenant will quit and surrender the Premises without

notice, and in a neat and broom clean condition." The lease also contained the

following attorney fee and cost provision:

       If Landlord employs an attorney or if Landlord brings suit to recover
       any rent due hereunder, or for breach of any other provision of this
       Lease . . . , Landlord shall be awarded its attorney's fees, statutory
       court costs, and all other litigation costs and expenses expended or
       incurred in connection with such action and in any appellate or
       collection proceedings. All sums due from Tenant to Landlord shall
       bear interest at the Default Interest rate.

       In June 2007, before purchasing the property, Auburn hired EBI

Consulting to perform a phase Ienvironmental site assessment ofthe building. A
phase I environmental site assessment report informs a potential purchaser or
lender if the property contains or likely contains any recognized environmental
NO. 69568-1-1/5




conditions—any hazardous substances on a property under conditions that

indicate an existing release, a past release, or a material threat of a release of

any hazardous substances into structures on the property or into the ground,

groundwater, or surface water of the property.            Recognized environmental

conditions include hazardous substances under conditions in compliance with

laws but do not include de minimis conditions. Because a phase I environmental

site assessment is a screening tool to determine if any recognized environmental

conditions warrant additional investigation, it does not include any actual

sampling.    A phase I environmental site assessment also affords its user the

ability to satisfy one of the requirements to qualify for the innocent landowner,

contiguous property owner, or bona fide prospective purchaser limitations on

liability   under    the   federal    Comprehensive      Environmental      Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, as well as the

MTCA. Federal standards govern these assessments.

        EBI's phase I environmental site assessment report noted that NW Mint

used the property to produce commemorative coins. NW Mint used machinery

and equipment including presses, stamps, and saws, and it used a commercial-

grade soap to polish the coins. EBI's report identified no evidence of recognized

environmental       conditions   or   evidence   of   leaks,   staining,   or   obvious

accumulations of metal dust.2 EBI's assessment did not include interviews with



      2 At trial, a representative from EBI testified, "And in the context of those
concentrations being relatively high concentrations in our sampling, for example,
we would be—that amount would be spread out over a square foot. So the
NO. 69568-1-1/6



any individuals from NW Mint. It also did not include inspections of HV/AC,
heating, ventilation, or air conditioning systems, or of roof areas. Auburn relied
on EBI's phase Ienvironmental site assessment when it purchased the property.3
       In May 2010, after the lease ended, Auburn hired EBI to survey the entire
condition of the premises.        This survey included an industrial hygiene
assessment to allow Auburn "to be sure that the property was safe for lease in an

unrestricted manner to any particular type of tenant that they could attract to the
property." EBI's survey did not include a human health risk assessment. If
contamination levels in collected samples were below EBI's own surface
contamination limits, EBI would certify the facility as clean and certify that a

tenant could occupy the premises without restrictions or limitations.
       In its "Site Cleanliness Investigation Report," EBI determined that based
on its own surface contamination limits, the premises was "grossly contaminated
with toxic metal dusts, fines, and process residuals."4            EBI found, "All

ability to observe that is very limited." He also testified that EBI only later
 became aware that NW Mint conducted industrial processes on the premises,
such as furnaces for melting metal, locations for pouring melted metal into molds,
 blasting operations, and electroplating.
        3 The trial court concluded that Auburn undertook all appropriate inquiry
 into the previous ownership and uses of the premises consistent with good
 commercial practice.
      4 In this report, EBI stated,
       There are currently no regulatory limits addressing surface
       contamination for industrial type settings, so EBI has developed
       surface contamination limits based on regulatory daily intake and
        exposure limits. If the contaminant concentration is less than these
        developed surface limits, EBI is willing to confirm that the surfaces
        are clean and that the facility is clean/free of hazardous toxic
        contamination. However, all of the five (5) composite samples had
        sufficient contamination to indicate that the facility is contaminated
NO. 69568-1-1/7



manufacturing areas greatly exceed the limits for silver, selenium, and copper.

Additionally, at least one area exceeds the limit for each of the following toxic

metals: Arsenic, cadmium, chromium, lead, cobalt, manganese, nickel and zinc."

EBI concluded, "Inhalation of the toxic metal dusts or skin contact of settled dust

could have significant harmful health effects." Further, "[a]ny settled dusts or

metal fines would likely be listed or characterized as a regulated hazardous

waste."      EBI recommended that workers properly trained in exposure to

hazardous substances clean the facility.

       Before receiving EBI's report, Auburn did not believe that NW Mint

released hazardous substances at the premises. Auburn shared the report with

NW Mint and included a letter stating,

                    Pursuant to, among others Sections ... 11 ("Hazardous
       Waste"), 13 ("Maintenance and Repairs; Redelivery")... of the
       Lease, we are affording your client the opportunity under the Lease
       to take steps to remediate the contamination of the premises.
       Action needs to be taken to bring contaminant levels down to safe
       levels within the parameters of the specifications in the enclosed
          report.

          EBI issued a "Lease Space Move Out Survey" in June 2010 after

inspecting the physical condition of the premises. In its report, EBI noted that
Hansen would not allow photographs of the building's interior and would not

provide answers about his business or manufacturing processes.            EBI was

          with a number of toxic metals and should not be leased or occupied
          without further cleaning and decontamination.
At trial, a representative from EBI testified, "We used our approach, and if
somebody had offered a scientifically based actual alternative to cleaning up the
property, that we could have ... had a dialogue on, we were more than happy to
do that. That never happened."
NO. 69568-1-1/8



unable to access the roof. EBI shared this survey with NW Mint and enclosed a

letter stating, "EBI Consulting has concluded that Ross Hansen did not properly
maintain the premises nor return the premises in good working condition as

required under the terms of the Lease."

      Auburn established a deadline of June 1, 2010, for NW Mint "to agree to

assume full responsibility for clean-up of the premises to a condition meeting the

terms of the lease and satisfactory to EBI Consulting, such that the landlord is in

a position to safely market this space and to have that clean-up done
immediately." NW Mint hired AMEC, an environmental consultant, to review
EBI's report. Before allowing AMEC to inspect the property, Auburn initially
insisted that NW Mint agree to responsibility for "whatever clean-up that is

determined by the experts needs to be done." NW Mint declined. In response to
NW Mint's renewed request to access the premises, Auburn wrote a letter

stating,

       Because [Hansen] had been equivocal in prior communications
       regarding your client as liable for this contamination, we believed it
       would be an act of good faith on your client's part to acknowledge
       his responsibility for such contamination, and that doing so would
       facilitate better cooperation between the parties and a common
       purpose to addressing and remediating the contamination,
       especially given your client's lack of cooperation with the owner in
       the past.[5]
       AMEC completed its review of EBI's report in June 2010.                  AMEC
concluded, "It is the opinion of AMEC that the EBI's methodology and approach


           5Auburn ultimately permitted industrial hygienist Elisabeth Black to access
 the premises and conduct sampling.

                                           -8-
NO. 69568-1-1/9



are flawed and cannot be relied upon to determine whether there is a potential

health risk to occupants of the building." It noted, "AMEC has not established

clean-up criteria for this facility at this time, but we would certainly use different

methodology to do so." It also stated, "Further investigation is needed, and they

may conclude that there are areas that need to be cleaned up."

       In June 2010, industrial hygienist Elisabeth Black developed a proposal for

NW Mint "to facilitate the removal of settled dust and metals." She expressed "no

reason to believe that the EBI results weren't accurate." Black "took issue with,

perhaps, their sampling method and clean-up criteria they established, but from
my perspective, in counseling my client, it seemed like going to clean-up was

likely the simplest option." NW Mint rejected Black's proposal.

       In August 2010, Black presented NW Mint with a proposal to identify the

levels of metals and surface dust on the premises. Auburn's expert, Stephen

Frost, accompanied Black as she sampled the premises and took side-by-side

samples.

       In November 2010, Black issued a report concluding, based on a limited

amount of information, that the premises posed a potential hazard. Black also

stated in her report, "Whether or not this condition creates an adverse health
impact to a future tenant of the building cannot be determined based on available
information."   She noted that the elevated samples were not attributable to

 background contamination from natural and human sources—these samples
exceeded background levels. And she found that the metal concentrations and


                                          -9-
NO. 69568-1-1/10



types of metals were unusual.6        Black recommended that an "experienced
abatement firm with training in hazardous waste operations" conduct a "thorough

cleaning" "according to a protocol prepared by a certified industrial hygienist."

       Auburn hired Clean Harbors to clean the premises. EBI oversaw Clean

Harbors' remediation, which took place from January through October 2011.

Clean Harbors cleaned the premises according to EBI's contamination limits.

       In October 2011, EBI issued to Auburn a certification letter confirming that

future tenants could use suite 101 without restrictions or limitations attributable to

hazardous metals.           In March 2012, EBI issued a "Facility Cleaning &

Decontamination Certification and        Environmental Closure Report," which

documented the investigation and remediation work in suite 101.

       In 2009, Auburn sued Hansen for breach of contract, seeking injunctive

relief and damages arising out of a dispute about access to an electrical room,

phone room, and common areas of the premises. In 2010, Auburn sued NW
Mint, asserting breach of contract claims arising under the lease and a claim to
recover "remedial action costs" under RCW 70.105D.080. Auburn claimed that

NW Mint breached the lease by contaminating the building with hazardous

       6 Black testified,
       [T]his is not a condition you would typically encounter, either in
       types of metals or concentrations of metals. It is unusual because
       we rarely ever get metals and surface dust values for an industrial
       facility, it is type sampling that's fairly rare, unless it is directed at
       lead, for which there are standards; it is not typically done.
       Unusual, because I think, as I have said before, it puts the land
       owner or properties owner in a condition that was going to require
        some action to move forward and make that space leasable for
        unrestricted use.


                                          -10-
NO. 69568-1-1/11




substances, as defined by federal and state law, by damaging the building in

excess of normal wear and tear, and by failing to remove tenant improvements.

Auburn alleged over $1.3 million in damages. On February 11, 2011, the trial

court consolidated these cases.

       In January 2012, Auburn hired toxicology expert John Schell to conduct a

human health risk assessment of the leased premises—a quantitative evaluation

of risk.7   Schell testified at trial that a "cleanup level" under the MTCA is a

protective level that is safe for human health. He concluded that the levels of

arsenic, chromium-VI, copper, and selenium exceeded the MTCA cleanup

standards.8    Schell testified that before Clean Harbors cleaned the premises,

"Based on my calculations of a risk based cleanup level, some of those metals,

the concentrations in the dust, posed a potential health threat."

        In June 2012, NW Mint applied to the Washington State Department of

Ecology's Voluntary Cleanup Program (VCP).9             The Department of Ecology

(Ecology) rejected NW Mint's application, reasoning,

        We did not accept your application because the release you
        reported does not constitute a hazardous waste site requiring
        remedial action under the Model Toxics Control Act (MTCA),

        7 Schell testified that "risk is a function of both the toxicity of the material
and the dose that is received."
      8 Schell relied upon a bulk dust sample analysis that Stephen Frost
conducted, which determined the concentrations of constituent metals. Schell
noted that using the United States Environmental Protection Agency's calculation
method, the levels of silver also exceeded the cleanup standard.
      9 The VCP supports independent cleanup actions. It allows owners and
operators of contaminated sites to enter into an agreement with the Department
of Ecology to review cleanup-related documents and to issue opinions about
compliance with the MTCA.

                                          -11-
NO. 69568-1-1/12


      Chapter 70.105D RCW. This opinion is based on an analysis of
      whether there has been a "release" into the "environment" of a
      "hazardous substance" as defined by MTCA, Chapter 70.105D
      RCW, and its implementing regulations, Chapter 173-340 WAC.



      Documents provided to Ecology state that areas within the building
      contain dust composed of silver, selenium, copper, arsenic,
      cadmium, chromium, lead, cobalt, manganese, nickel and zinc.

       From the documents provided, metal dust did not enter the
      "environment". Rather, the dust was contained within the building.

      This opinion is regarding the administrative and technical
      requirements of MTCA, and is not an opinion regarding whether
      other local, state or federal requirements may apply to the facility.

       In July 2012, NW Mint filed a second application to the VCP.           This

application was not different materially from NW Mint's first application. Ecology

rejected this application, reasoning,

       We did not accept your application because the data provided to
       Ecology is insufficient to show a release into the environment of a
       hazardous substance.      This decision is based on an analysis of
       whether there has been a "release" into the "environment" of a
       "hazardous substance" as defined by MTCA, Chapter 70.105D
       RCW, and its implementing regulations, Chapter 173-340
       WAC. . . . Ecology makes no determination as to whether there is a
       threatened release of a hazardous substance.         The VCP is not
       designed for review of remedial actions related solely to a
       threatened release.




       Documents provided to Ecology state that areas within the building
       contain dust composed of silver, selenium, copper, arsenic,
       cadmium, chromium, lead, cobalt, manganese, nickel and zinc
       (collectively "metals dust"). Ecology received no sampling data of
       surface water, ground water, drinking water supply, land surface or
       subsurface strata, or ambient air. If such data is provided, you may
       reapply to enter the VCP.




                                        -12-
NO. 69568-1-1/13


      This decision is regarding whether Ecology will accept your
      application to enter the VCP. This decision is not an opinion
      regarding whether other local, state or federal requirements may
      apply to the facility. This decision does not determine whether any
      independent remedial action performed at the facility is the
      substantial equivalent of an Ecology-conducted or Ecology-
      supervised remedial action. Such determinations are made by a
      court. See RCW 70.105D.080. The state, Ecology and its officers
      and employees are immune from all liability, and no cause of action
      of any nature may arise from any act or omission in providing this
      informal advice and assistance. See RCW 70.105D.030(1)(i).

      On October 15, 2012, the trial court entered 155 findings of fact, 31

conclusions of law. The court concluded that Hansen and Northwest Territorial

Mint LLC were "strictly liable, jointly and severally, for all remedial action costs

incurred by Auburn at the Auburn property." On November 14, 2012, the trial
court entered an order granting in part and denying in part Auburn's motion to

amend these findings of fact and conclusions of law and entered a judgment in

favor of Auiburn.10 In the judgment, the court awarded to Auburn $869,746.53 in

remedial action costs under the MTCA and damages for NW Mint's breach of the

lease. The court also awarded attorney fees and costs to Auburn under the

MTCA and the lease.

       On June 4, 2013, the trial court entered a supplemental judgment and

order awarding $1,582,046.61 in costs and attorney fees to Auburn.

       NW Mint appeals.




       10   The court removed legal fees from Auburn's remedial action costs,
reducing the calculation from $657,818.68 to $391,573.23. NW Mint does not
appeal this order.

                                         -13-
NO. 69568-1-1/14




                            STANDARD OF REVIEW


      We review challenged findings of fact by examining if substantial evidence

supports the findings and if the findings in turn support the conclusions of law.11

Substantial evidence exists if it is sufficient to persuade a fair-minded, rational

person of the truth of the matter asserted.12 Unchallenged findings of fact are

verities on appeal.13 A trial court's interpretation of contract language presents

an issue of law that we review de novo.14

      We review the legal basis for an attorney fee award de novo but review

the reasonableness of the award amount for abuse of discretion.15 A trial court

abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds.16

                                    ANALYSIS


       NW Mint raises three issues.     First, it claims that it did not breach the

parties' lease. Second, NW Mint contends that the MTCA does not apply to the

premises at issue and that it did not violate this statute. Third, NW Mint asserts

       11 State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001) (citing State
v. Dempsev, 88 Wn. App. 918, 921, 947 P.2d 265 (1997); State v. Hill. 123
Wn.2d 641, 647, 870 P.2d 313 (1994)).
      12 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (citing State
v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
      13 Hill, 123Wn.2dat644.
      14 224 Westlake. LLC v. Enqstrom Props., LLC, 169 Wn. App. 700, 716,
281 P.3d 693 (2012) (citing Knipschield v. C-J Recreation, Inc., 74 Wn. App. 212,
215, 872P.2d 1102(1994)).
       15 W. Consultants. Inc. v. Davis, 177 Wn. App. 33, 38, 310 P.3d 824
(2013) (citing Hulbert v. Port of Everett, 159 Wn. App. 389, 407, 245 P.3d 779
(2011)).
       16 State v. Emery, 161 Wn. App. 172, 190, 253 P.3d 413 (2011) (quoting
State v.Allen. 159 Wn.2d1, 10, 147 P.3d 581 (2006)).


                                        -14-
NO. 69568-1-1/15




that the trial court abused its discretion when it awarded fees and costs to

Auburn. We affirm NW Mint's liability under the lease and the court's attorney

fee and cost award.   As a result, we do not need to reach NW Mint's MTCA

claim.17

       NW Mint makes three challenges to its liability under the lease. First, NW

Mint claims that "the residual metals NW Mint left at the Premises did not present

a risk of actual harm to human health or the environment." Second, it alleges,

"NW Mint complied with all statutes, regulations and orders concerning

hazardous wastes."    Third, NW Mint asserts, "NW Mint left the Premises in a

'broom clean' condition, which is the Lease's only cleanup standard." We reject

these contentions.


       The trial court found, "Section 13 of the Lease applies to the physical

condition of Suite 101, and the 'broom clean' specification in Section 13 does not

modify or supersede the requirements of Section 11 of the Lease regarding

hazardous substances." It also found, "NW Mint did not cooperate with Auburn's

investigation and cleanup of the contamination in 2010 and 2011." The court

concluded, "NW Mint stored, generated, disposed, or otherwise released

hazardous materials on the premises, in breach of Section 11 [of] the Lease." It

also concluded, "NW Mint failed to notify Auburn of the release of hazardous


       17 Auburn contends that NW Mint's brief fails to comply with RAP 10.3.
Because the nature of Auburn's challenges are clear, Auburn shows no prejudice
from any alleged violation, and RAP 1.2 requires us to interpret these rules
liberally to promote justice and facilitate the decision of cases on the merits, we
waive any technical violations of RAP 10.3.

                                       -15-
NO. 69568-1-1/16



waste at the Auburn Property in breach of Section 11 of the Lease." Additionally,

it concluded, "Auburn provided NW Mint notice and a reasonable opportunity to

comply with measures that Auburn deemed advisable to protect its interest in the

Auburn Property. NW Mint failed to undertake any appropriate or meaningful

remedial action."   NW Mint breached section 13 "by failing to maintain the

premises in good order and repair at the time ofsurrender on April 30, 2010."

       NW Mint claims, "Before the Lease terminated in 2010, Auburn never

objected to NW Mint's use of metals such as silver, copper and nickel in its
manufacturing processes. Auburn never claimed that NW Mint's operations

breached Section 11 of the Lease."       It asserts that the trial court "erred in

concluding that the mere presence of metallic dust in the Premises constituted a
breach of Section 11 of the Lease" because "Auburn did not introduce any

evidence that the residual metallic dust, which was in the Premises at lawful, de

minimus [sic] levels, presented a threat to human health or the environment."
       The record shows that NW Mint "store[d], generate^], dispose[d] of or

otherwise allow[ed] the release of any hazardous waste released hazardous

materials" on the premises and did not notify Auburn of these releases. The trial
court found, "Hazardous substance metal fumes, dust and residues were

dispersed throughout the facility and were also released to the 'environment,' as
evidenced by high levels of hazardous substance metal dust/residue found
outside of the building, both on the roof and on the loading dock area outside of

the building."



                                       -16-
NO. 69568-1-1/17



      Although NW Mint assigns error to the court's conclusion that "[t]he metal

dust/residue, including arsenic, chromium, lead, selenium, silver, copper, nickel,

and zinc, at the Auburn Property are hazardous substances as defined by

MTCA/CERCLA," it does not support this assignment of error with any argument.

If a party fails to support an assignment of error with legal arguments, we do not
consider them on appeal.18         The lease prohibited any storage, generation,

disposal, or other releases of hazardous materials, regardless of whether the

releases posed a risk to human health or the environment. NW Mint fails to

establish its compliance with section 11 of the lease.

          NW Mint also breached the lease because it did not maintain the premises

in "neat, clean and in good order, repair and in a sanitary condition," as section

13 required.      NW Mint rejected Auburn's requests to clean the premises to

enable Auburn to relet it to a new tenant.              Even if NW Mint "quit and

surrendered] the Premises ... in a neat and broom clean condition," these

violations were sufficient to constitute a breach of both section 11 and section 13.

          NW Mint also challenges its liability under the MTCA. RCW 70.105D.080

states,

          Except as provided in RCW 70.105D.040(4)(d) and (f), a person
          may bring a private right of action, including a claim for contribution
          or for declaratory relief, against any other person liable under RCW
          70.105D.040 for the recovery of remedial action costs.          In the
          action, natural resource damages paid to the state under this

          is Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 624,
818 P.2d 1056 (1991) (citing Schmidt v. Cornerstone Invs.. Inc.. 115 Wn.2d 148,
795 P.2d 1143 (1990); Howell v. Spokane & Inland Empire Blood Bank. 114
Wn.2d 42, 46, 785 P.2d 815 (1990)).

                                           -17-
NO. 69568-1-1/18


      chapter may also be recovered. Recovery shall be based on such
      equitable factors as the court determines are appropriate.
      Remedial action costs shall include reasonable attorneys' fees and
      expenses. Recovery of remedial action costs shall be limited to
      those remedial actions that, when evaluated as a whole, are the
      substantial equivalent of a department-conducted or department-
      supervised remedial action. Substantial equivalence shall be
      determined by the court with reference to the rules adopted by the
      department under this chapter. . . . The prevailing party in such an
       action shall recover its reasonable attorneys' fees and costs. This
       section applies to all causes of action regardless of when the cause
       of action may have arisen.

A "remedial action" is

       any action or expenditure consistent with the purposes of this
       chapter to identify, eliminate, or minimize any threat or potential
       threat posed by hazardous substances to human health or the
       environment including any investigative and monitoring activities
       with respect to any release or threatened release of a hazardous
       substance and any health assessments or health effects studies
       conducted in order to determine the risk or potential risk to human
       health.'19]

       RCW 70.105D.040 states,

       (1) [T]he following persons are liable with respect to a facility:
           (a) The owner or operator of the facility;
           (b) Any person who owned or operated the facility at the time of
       disposal or release of the hazardous substances;

           (2) Each person who is liable under this section is strictly liable,
       jointly and severally, for all remedial action costs and for all natural
       resource damages resulting from the releases or threatened
       releases of hazardous substances.

An "owner or operator" is "[a]ny person with any ownership interest in the facility
or who exercises any control over the facility."20         A "facility" includes "any

building" or "any site or area where a hazardous substance, other than a



       19 Former RCW 70.105D.020(26) (2007).
       20 Former RCW 70.105D.020(17)(a).


                                          -18-
NO. 69568-1-1/19




consumer product in consumer use, has been deposited, stored, disposed of, or

placed, or otherwise come to be located."21

        Auburn argues that it is entitled to recover the same amount of fees and

costs under the lease and the MTCA. NW Mint identifies no costs recoverable

under the MTCA that are not recoverable under the lease.       Because we affirm

NW Mint's liability under the lease, we do not address MTCA's applicability to this

case.



        Finally, NW Mint makes four challenges to the trial court's supplemental

judgment and order awarding attorney fees and costs. First, NW Mint claims that

the court "abused its discretion by accepting Auburn's billing statements without

question and failing to deduct for wasteful and duplicative work." Second, NW
Mint contends, "The trial court abused its discretion by failing to segregate the

time related to Auburn's unsuccessful tenant improvement claim."          Third, it

alleges, "Auburn's attorneys spent unnecessary time on post-judgment matters,

including the Fee Motion." Fourth, NW Mint asserts, "The trial court abused its

discretion by awarding Auburn every penny of its claimed $425,767.28 in costs."

        The trial court awarded $425,767.28 in litigation expenses, $1,116,279.33

in attorney fees, and $50,000.00 in "[f]ees/costs for December 2012 through
entry of supplemental judgment." Its award also included a $10,000.00 credit for
a security deposit. The court concluded, "The evidence supports a full award of
all of Auburn's 'remedial action' legal expenses under MTCA and its attorneys'


        21 Former RCW 70.105D.020(5).


                                        -19-
NO. 69568-1-1/20



fees and costs under the 2002 Lease based on both the traditional 'lodestar'

analysis and an 'equitable factors' analysis."

       Generally, Washington courts apply the lodestar method to calculate

attorney fees.22   The court awarding attorney fees makes an independent

determination about the reasonableness of the fees requested.23          The fee

applicant bears the burden of establishing that a fee is reasonable.24
       To apply the lodestar method, the court considers first the number of

hours reasonably expended on the matter.25 "'[T]he attorneys must provide

reasonable documentation of the work performed.'"26 This documentation must

include at least (1) the number of hours worked, (2) the type of work performed,

and (3) the category of attorney who performed the work.27 The court does not

need to conduct an hour-by-hour analysis of each lawyer's time sheets, so long

as the court provides a consideration of the relevant factors and reasons




      22 Mahler v. Szucs, 135 Wn.2d 398, 433, 957 P.2d 632 (1998), overruled
on other grounds by Matsvuk v. State Farm Fire & Cas. Co.. 173 Wn.2d 643, 272
P.3d 802 (2012).
       23 McGreevv v. Or. Mut. Ins. Co.. 90 Wn. App. 283, 291, 951 P.2d 798
(1998) (quoting Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. App. 841,
847, 917 P.2d 1086 (1995)), overruled on other grounds by Panorama Vill.
Con'do. Owners Ass'n Bd. of Dirs. v. Allstate Ins. Co.. 144 Wn.2d 130, 26 P.3d
910(2001).
       24 Absher Constr. Co.. 79 Wn. App. at 847 (citing Blum v. Stenson. 465
US 886, 897, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984); Scott Fetzer Co. v.
Weeks, 122 Wn.2d 141, 151, 859 P.2d 1210 (1993)).
     25 McGreevv, 90 Wn. App. at 291.
       26 McGreevv. 90 Wn. App. at 292 (quoting Bowers v. Transamerica Title
Ins. Co.. 100 Wn.2d 581, 597, 675 P.2d 193 (1983)).
       27 McGreevv, 90 Wn. App. at 292 (citing Bowers. 100 Wn.2d at 597).

                                         -20-
NO. 69568-1-1/21




sufficient to review the amount of the fee award.28 "The awarding court should

take into account the hours spent on unsuccessful claims, duplicated effort, or

otherwise unproductive time."29

      The second step in the lodestar method requires the court to determine if

the hourly fee charged was reasonable.30 As a third step, the court multiplies the

numbers from the first two steps to produce the lodestar fee.31

       Finally, the court may adjust the lodestar amount up or down to reflect

factors not already considered.32     The party proposing a deviation from the

lodestar amount bears the burden of justifying it.33

      When a contract specifies that a party may recover costs beyond statutory

costs, the prevailing party is not limited to statutory costs, and the court will

enforce the parties' intended meaning.34

       The trial court found, "Auburn has provided contemporaneous records

documenting the number of hours worked by its counsel as part of the remedial

action and in the course of the litigation. These records adequately informed the

court of the type of work performed and the category of attorney who performed

the work." It also found, "The hourly rates charged by Auburn's counsel were


       28 McGreevv. 90 Wn. App. at 292 (quoting Absher Constr. Co.. 79 Wn.
App. at 848).
       29 McGreevv. 90 Wn. App. at 292 (citing Bowers. 100 Wn.2d at 597).
       30 McGreevv. 90 Wn. App. at 291.
       31 McGreevv. 90 Wn. App. at 291.
       32 Bowers. 100 Wn.2d at 598-99.
       33 Bowers. 100 Wn.2d at 598 (quoting Copeland v. Marshall. 641 F.2d
880, 892 (D.C. Cir. 1980)).
       34 Ethridqe v. Hwang, 105 Wn. App. 447, 462, 20 P.3d 958 (2001).

                                        -21-
NO. 69568-1-1/22




reasonable at the time the client was billed for services.            The attorneys

representing all parties were very experienced and produced exceptional work."35

The court concluded, "The hours expended and hourly rates charged by

Auburn's counsel as 'remedial action' attorneys' fees in this case were

reasonable."


        NW Mint claims that the trial court awarded fees for duplicative work,

including "[e]xcessive contacts between Auburn's counsel," "[duplication of effort

in reviewing pleadings and documents," and "[duplication of effort in conducting

depositions or attending hearings." The court entered the following findings of

fact:


               9.      The court also has made a reduction for duplicative
        efforts at trial.   It was not necessary to have four partner level
        lawyers present at the entire trial, particularly due to the fact that
        one lawyer never made any oral representation to the court and the
        other lawyer's participation was limited to questioning two
        witnesses on the first day of trial. The presence of these attorneys
        was unnecessarily duplicative.          Given that there were two
        experienced lawyers already representing Auburn at trial, the court
        does not find it necessary that Mr. Johnson was present for trial or
        that Mr. Hamell remained after his witnesses testified on the first
        day of trial. The court will reduce the award for their trial time. Mr.
        Johnson billed approximately 104 hours at $33,800, and Mr. Hamell
        billed 104 hours at $30,680.
                10.    Defendants argued that other time was duplicative as
        well. The court does not find this defense argument convincing.
        This case was aggressively litigated by the Defendants and Auburn
        had the right to respond in kind. The communication between
        plaintiff's counsels was reasonable and not excessive. The court
        finds that plaintiff's counsels reasonably allocated their resources
        for their motions practice and depositions. Finally, the court finds
        that the costs requested are appropriate given the broad definition
        of costs in MTCA claims.



        35 NW Mint does not challenge the hourly fees of Auburn's attorneys.

                                         -22-
NO. 69568-1-1/23


             11.    Aside from the specific reductions discussed above,
      the evidence established that Auburn's counsel expended a
      reasonable number of hours in representing Auburn with respect to
      Auburn's "remedial action" responses to the contamination caused
      by Defendants, and in achieving a successful litigation result to
      resolve Auburn's claims under MTCA and under the 2002 Lease.
             12.    As evidenced by the detailed documentation provided
      by Auburn, the hours billed by Auburn's counsel as part of the
      remedial action and in the course of the litigation of the MTCA and
      the 2002 Lease claims were not wasteful or duplicative.

      NW Mint fails to cite any controlling authority in challenging the amount of

communications among Auburn's attorneys or any authority showing that the

entries were improperly vague. NW Mint also cites no authority establishing that

having multiple attorneys review pleadings and documents is improper. Further,

although NW Mint claims that the trial court abused its discretion by awarding

more than $27,000 in fees when only one of the two attorneys who attended

depositions and hearings for Auburn actually represented Auburn, it fails to

indicate which specific entries that it is challenging.36 Therefore, NW Mint fails to

show that the trial court awarded fees for duplicative work.

       NW Mint also alleges that the trial court failed to exclude the requested

fees and costs related to Auburn's unsuccessful tenant improvement claim.37 It

argues that because the fact pattern for this claim was unrelated to the fact
pattern for the contamination claim, the court "abused its discretion by




       36 NW Mint cites a declaration offering expert opinion on Auburn's cost
and fee application, but the entries included in that document do not total
$27,000.
      37 Section 14 of the lease required NW Mint to remove all of its
improvements that Auburn requested itto remove.

                                        -23-
NO. 69568-1-1/24




unquestioningly accepting Auburn's unsupported estimate of the time its

attorneys spent on the unsuccessful tenant improvement claim."

      A trial court need not segregate attorney fees when it finds that claims are

"so related that no reasonable segregation of successful and unsuccessful claims

can be made."38 The trial court found,

      Auburn was unsuccessful in its tenant improvement claim and the
      award should be reduced for the hours expended on that claim.
      The tenant improvement claim constituted a minimal amount of
      work however, and there are limited invoices that are applicable to
       it. . . . The court finds that the invoices were sufficient to determine
      the work performed in this lawsuit. Much of the testimony provided
      and the work performed regarding the tenant improvement claim
      related to Auburn's other property damage and contamination
      claims; hence, the claims were inextricably intertwined. The tenant
      improvement claim itself was simply a very minor part of the
       litigation. Nevertheless, a reduction is necessary and the court
       accepts the 100 hour estimate proffered by the Plaintiff totaling
       approximately $37,000 in reduction as reasonable and frankly,
       perhaps generous.

       The court rejected NW Mint's argument that it was impossible to

determine the number of hours expended on the tenant improvement claim. NW

Mint cites no evidence indicating that the tenant improvement claim rested on a

different common core of facts than the contamination claim. The trial court did

not abuse its discretion.

       NW Mint also contests the fees awarded for "post-judgment matters,

including the Fee Motion." It challenges the court's order denying NW Mint's
motion to strike declarations and exhibits supporting Auburn's motion for attorney

fees and costs or to continue the fee hearing. In its motion, NW Mint claimed

       38 Hume v.Am. Disposal Co., 124 Wn.2d 656, 673, 880 P.2d 988 (1994).

                                         -24-
NO. 69568-1-1/25




that declarations and attached documents filed with Auburn's reply in support of

its motion for attorney fees and costs constituted "new evidence" that NW Mint

did not have adequate time to analyze.           The trial court relied upon this

challenged evidence when it determined that Auburn's fee request was

reasonable.


      We will reverse a trial court's denial of a continuance only upon a showing

of both an abuse of discretion and resulting prejudice.39        NW Mint cites no

specific billing record to support its contention. The evidence submitted with

Auburn's reply raised no new issues; it simply rebutted the arguments made in

NW Mint's response to Auburn's motion for attorney fees and costs.40

Additionally, Auburn provided many of the documents to NW Mint previously.

We reject NW Mint's arguments.

       Finally, NW Mint claims that Auburn was not entitled to recover deposition

expenses, daily transcription charges, travel costs for parties, lay witness travel

costs, support staff overtime, computer management software, copying charges,

and meal expenses during trial. The lease's attorney fee and cost provision

entitles Auburn to recover "its attorney's fees, statutory court costs, and all other

litigation costs and expenses expended or incurred in connection with [an action

       39 State v. Herzog, 69 Wn. App. 521, 524, 849 P.2d 1235 (1993).
       40 See Colwell v. Holy Family Hosp., 104 Wn. App. 606, 616, 15 P.3d 210
(2001) ("The party moving for summary judgment must raise all of the issues on
which it believes it is entitled to summary judgment in its initial motion. A trial
court may not grant summary judgment to the moving party on issues that are
first raised in rebuttal." (citing White v. Kent Med. Ctr.. Inc.. 61 Wn. App. 163,
168, 810 P.2d 4 (1991); Mollov v. City of Bellevue. 71 Wn. App. 382, 385, 859
P.2d 613 (1993))).


                                        -25-
NO. 69568-1-1/26




for breach of the lease] and in any appellate or collection proceedings. All sums

due from Tenant to Landlord shall bear interest at the Default Interest rate."

      The trial court concluded, "The legal services provided by Auburn's

counsel were necessary and appropriate to guide and assist Auburn in the

investigation and remediation of the former NW Mint Facility and to achieve a

successful litigation result to resolve Auburn's claims under MTCA and under the

2002 Lease." NW Mint fails to show that the broad lease provision precludes

Auburn from recovering the cited costs and expenses.

       Both parties request fees and costs incurred on appeal under RAP 18.1,

RCW 70.105D.080, RCW 4.84.330, and the lease. Because Auburn prevails in

this appeal, it is entitled to recover attorney fees and costs under RAP 18.1,

RCW 4.84.330, and the lease.

                                  CONCLUSION


       Substantial evidence supports the trial court's findings, which support its

conclusions that NW Mint breached its lease with Auburn. NW Mint fails to show

that the trial court abused its discretion when it awarded Auburn all of its fees and

costs under the lease. We do not reach the applicability of the MTCA to this




                                         -26-
NO. 69568-1-1/27




case. We affirm the trial court and award fees and costs to Auburn incurred on


appeal upon its compliance with RAP 14.4.




WE CONCUR:




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