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                                                            s
                                                   SUSAN L CARLSON
                                                 SUPREME COURT CLERK




IN THE SUPREME COURT OF THE STATE OF WASHINGTON


SPECIALTY ASPHALT &
CONSTRUCTION,LLC,
a Washington limited liability
company, and LISA JACOBSEN,
an individual.

                         Petitioners,      No. 95085-7


V.                                         EN BANC


LINCOLN COUNTY,a Washington
State County,
                                           FILED         JUL 2 6 2018
                         Respondent.


        FAIRHURST, C.J.—Specialty Asphalt & Construction LLC and its majority

owner, Lisa Jacobsen (Specialty), brought suit against Lincoln County(County)for

gender discrimination, negligent misrepresentation, and breach of contract arising

out of the County's bidding and contracting process for a paving project. Through

various motions. Specialty lost all three claims at the trial court. The Court of
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

Appeals affirmed, and Specialty petitioned for review. We reverse the Court of

Appeals in part and affirm in part. We hold that Specialty defeated the County's

motion for summary judgment on the gender discrimination and negligent

misrepresentation claims but the contract claim was properly dismissed. The case is

remanded to the trial court to reinstate the two surviving claims.

                   I. FACTS AND PROCEDURAL HISTORY


A.    Factual background

      Specialty, a licensed contractor that performs paving and maintenance work,

responded to a call for bids from the County for a paving project. Jacobsen first

learned about the project when the County called her business to ask if it worked in

the area. Jacobsen then received the bid proposal via e-mail from the County. On

two separate pages,the bid proposal stated that no bond was required. Clerk's Papers

(CP)at 293("No proposal bond or performance bond will be required."), 297("No

bid bond or performance bond is required for this bid."). The bid proposal was

prepared by Phil Nollmeyer, the county operations and permit coordinator. He used

the maintenance project template that had the no bond required language because

bonds are not required for the purchase of materials or simple maintenance contracts.

The County claimed that Nollmeyer made a clerical error and that he should have

removed the no bond required language.
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

       The bid proposal announced a scheduled opportunity to view the project and

scope of work prior to the bid deadline(referred to as a walk-through). Jacobsen was

the only contractor to attend the walk-through, which was led by three county

commissioners and Nollmeyer. At the beginning of the walk-through, Nollmeyer

made a comment that Jacobsen's shoes with heels were not the most appropriate

attire for the walk-through. During the walk-through, the commissioners sought

Jacobsen's recommendations for the project, which the County subsequently

incorporated into the bid proposal's addendum 1. A few days after the walk-through,

a male representative of Arrow Concrete & Asphalt Specialties, Inc.^ came to see

the paving project location. Nollmeyer showed him where the work locations were

and went over the basic tasks to be performed, essentially giving an unscheduled

private walk-through.

       Prior to the bid deadline, Nollmeyer called Jacobsen and asked if Specialty

was going to submit a bid. He discouraged her from bidding because the project was

more trouble than it was worth.^ Nevertheless, Jacobsen submitted a bid for the

project on behalf of Specialty. The County also received a bid from Arrow.

According to the addendum 1, the bids would be opened on August 5, 2013.


       ^ Arrow is owned by David Lawless, an acquaintance of Nollmeyer's.
       ^ Jacobsen believed Nollmeyer's comments and attitude via the phone call implied that he
did not believe that her company, owned and operated by a woman, could handle the complexity
of the job. Her beliefs about the motivation for Nollmeyer's alleged phone call are speculation,
and we do not rely on them. "A nonmoving party in a summary judgment may not rely on
speculation." Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13,721 P.2d 1 (1986).
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

       On August 6,2013,the County awarded the project to Specialty. The day after

awarding the project to Specialty, the County began Department of Labor and

Industries(L&I) contractor tracking which allowed the County to track Specialty's

status on an ongoing basis.^ Nollmeyer testified that the County normally checks

contractor status on the L&I website prior to awarding bids to ensure that the

contractors are not disbarred."^ He admitted that he checked Specialty's status prior

to awarding the bid but could not recall if he did so for Arrow. He denies having

initiated contractor tracking, but the evidence shows that someone at the County did,

unless it truly was a clerical error on L&I's part. Wash. Supreme Court oral

argument. Specialty Asphalt & Constr. LLC v. Lincoln County, No. 95085-7(May

15, 2018), at 30 min., 40 sec., video recording by TVW, Washington State's Public

Affairs Network, https://www.tvw.org/watch/?eventID=2018051035.

       Several days after August 5, 2013, because she had not yet been notified of

the award, Jacobsen called the County and asked who had received the award. The

woman on the phone, either Shelly Johnston, the county auditor, or Marci Patterson,

the deputy clerk to the board of commissioners, told Jacobsen that Specialty had

gotten the award, Nollmeyer had been directed to call her with news of the award.



       ^ Jacobsen believed that the County initiated contractor tracking because Nollmeyer was
disappointed that Specialty had received the award and he hoped to find a reason to disqualify the
company. Jacobsen's beliefs about the motivation for Nollmeyer's alleged actions are speculation
and we do not rely on them. Seven Gables Corp., 106 Wn.2d at 13.
        Checking contractor status is different from tracking.
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

and a notification had been sent by mail. The day after her phone conversation,

Jacobsen received the award letter (dated August 6, 2013) by mail and the

commissioners' order signed by the county commissioners. Jacobsen began to

mobilize resources and materials for the project and told her assistant to stop

accepting new jobs because their schedule would be full for the season.

      A few days later, Jacobsen received a letter from the County (dated August

12,2013)with the contract and contract bond. Jacobsen signed the contract on behalf

of Specialty on August 16, 2013, and on the contract bond, she wrote "[n]o proposal

bond or performance bond required as per page #2" and left it unsigned. CP at 307.

She mailed both documents back to the County. The county commissioners did not

countersign. After receiving the documents, Johnston called Jacobsen and told her

that the County now required a bond for the project. Jacobsen objected to this change

because the bid explicitly provided that no bond was required and because she

believed the bond to be a significant item. Jacobsen also explained that Specialty

had performed similar public works projects for the city ofDavenport,located within

the county, without a bond, and that the County could accept responsibility for

proceeding without a bond.

      On August 19, 2013,the County withdrew the bid award. On or about August

20, 2013, a new call for bids was sent out with a bond requirement. Specialty sent a

demand letter (dated August 23, 2013) requesting that the County maintain its bid
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

award. In the letter, Specialty conceded that the bond was statutorily required by

RCW 39.08.010, but claimed that failure to require the bond does not void the

contract. In response, the County ceased and withdrew the rebidding process. The

County was willing to proceed with Specialty's award ofthe original bid so long as

Specialty obtained the bond. The County also offered to reimburse Specialty for the

expense ofthe bond premium. Jacobsen believed that this would expose both parties

to liability for collusion or bid rigging. Sometime after August 19, 2013, Jacobsen

had a phone conversation with county commissioner Scott Hutsell, who described

the situation as a mess. He assured Jacobsen that he would investigate the available

options that would enable the project to go forward with Specialty.

      The following spring, April 2014,the County contacted Specialty to see ifthe

project could be done with the bond at the County's expense. The County indicated

that in the alternative it would look to use the small works roster to complete the

project and invited Specialty to be included on the roster. Shortly thereafter.

Specialty filed suit.

B.    Procedural history

      In May 2014, Specialty sued the County for breach of contract, seeking

injunctive and declaratory relief.^ In October 2015, over a year later. Specialty filed



        Specialty's prayer for relief was as follows:
Specialty Asphalt & Constr. v. Lincoln County, No,95085-7

a motion for leave to add a party and amend the complaint. Specialty sought to add

intervenor Jacobsen as an additional plaintiff and add claims of negligent

misrepresentation and gender discrimination under RCW 49.60.030. The trial court

granted the motion over the County's objection.

       The County filed a motion for summary judgment, seeking dismissal of all

claims. The trial court granted partial summary judgment and dismissed the

discrimination and negligent misrepresentation claims but denied the motion with

regard to the contract claim. Specialty filed a motion for reconsideration ofthe trial

court's summary judgment order, which the trial court denied.

       After the summary judgment order. Specialty filed a motion for leave to file

a second amended complaint. Specialty sought to modify the prayer for relief on the

contract claim to add monetary damages in an amount to be proved at trial. The

County objected to the motion, arguing that the amended complaint was futile


              4.1     For an order for injunctive reliefto enjoin the execution ofa contract
       between Lincoln County and any other bidder for the Project;
              4.2     For a mandatory injunction in favor of Specialty Asphalt to
       complete the Project without any requirement for a bond;
              4.3     For a declaratory judgment that the type of work requested for the
       Project, which is maintenance work not construction work, and does not require a
       bond;
              4.4    For a Declaratory Judgment that Lincoln County's payment of the
       bond does not constitute bid rigging or collusion;
              4.5    For a judgment that Lincoln County pay the bond pursuant to RCW
       39.08.015;
               4.6    For an award of reasonable attorney fees and other costs permitted
       by law;
              4.7     For such other relief the Court deems fair and equitable.
CP at 7.

                                                7
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

because Washington law provided that an injunction was the exclusive remedy for

the claim. The trial court agreed and denied the motion. The County conceded the

breach of contract issue, stipulated that Specialty could complete the project under

the terms of the written contract that Specialty signed on August 16, 2013 (without

a bond), and moved to compel specific performance or, alternatively, dismiss the

case as moot. Specialty objected, but the trial court issued an order granting the

County's motion. In that order, the trial court issued a deadline for Specialty to

declare whether it intended to complete the project. The trial court also found that

Specialty would be entitled to recover reasonable increased costs for the project

because of the County's delays. The County was ordered to allow Specialty to

perform the contract without a bond. Specialty filed a timely notice declaring its

intent to not perform the contract. Its stated reasons included that the cost of the

project had increased, the condition of the parking lot had deteriorated, the law

governing the project had changed, and it was unclear whether Specialty would be

able to recover the costs associated with the project. The County argued that since

Specialty chose not to avail itself of the only remaining relief, no justiciable

controversy remained and the case should be dismissed. The trial court agreed and

dismissed the case as moot.


      Specialty appealed, and the Court of Appeals affirmed. Specialty Asphalt &

Constr., LLCv. Lincoln County, No. 34480-1-III, slip op. at 1 (Wash. Ct. App. Aug.
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

29, 2017)(unpublished), https://www.courts.wa.gov/opinions/pdf/344801_unp.pdf.

Specialty petitioned for review, which we granted.

                                   II. ISSUES


      A.    Whether summary judgment dismissal of the gender discrimination

claim was proper.

      B.    Whether     summary       judgment   dismissal   of   the   negligent

misrepresentation claim was proper.

      C.    Whether denial of the motion to amend and dismissal of the contract

claim was proper.

                                 III. ANALYSIS


A.    Summary judgment dismissal of the gender discrimination claim was
      improper

      1.    Standard ofreview

      We review the trial court's grant of summary judgment de novo. Camicia v.

Howards Wright Constr. Co., 179 Wn.2d 684,693,317 P.3d 987(2014). Summary

judgment is proper only when there is no genuine issue as to any material fact and

the moving party is entitled to judgment as a matter of law. CR 56(c). We consider

all facts and reasonable inferences in the light most favorable to the nonmoving

party, but the nonmoving party may not rely on speculation. Seven Gables Corp. v.

MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986); Hiatt v. Walker

Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992) (to overcome summary

                                         9
Specialty Asphalt c& Constr. v. Lincoln County, No. 95085-7

judgment,"the employee must do more than express an opinion or make conclusory

statements"). "When the record contains reasonable but competing inferences of

both discrimination and nondiscrimination, the trier of fact must determine the true

motivation." iScrzvewer v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014)

(citing Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 90, 272 P.3d 865 (2012)).

"However,'when reasonable minds could reach but one conclusion, questions of

fact may be determined as a matter oflaw.'" Ruffv. County ofKing, 125 Wn.2d 697,

703-04, 887 P.2d 886 (1995)(quoting Hartley v. State, 103 Wn.2d 768, 775, 698

P.2d 77(1985)).

       2.     We reverse the Court of Appeals because there are competing
              inferences ofdiscrimination and nondiscrimination

       Jacobsen brought a claim ofgender discrimination under the Washington Law

Against Discrimination, RCW 49.60.030.^ The purpose ofthe law is to deter and to

eradicate discrimination in Washington. Mackay v. Acorn Custom Cabinetry,

Inc., Ill Wn.2d 302, 309-10, 898 P.2d 284 (1995). "[A]n independent contractor

may bring an action for discrimination in the making or performance of[a] contract




       ^ RCW 49.60.030 does not provide the criteria for a prima facie claim,so we crafted criteria
through case law.
      [T]he plaintiff in a sex discrimination case must show (1) membership in a
      protected class;(2)the plaintiff was similarly situated to members of the opposite
      sex, i.e., that he or she was qualified for the position applied for or was performing
      substantially equal work; (3) because of plaintiffs sex he or she was treated
       differently than members ofthe opposite sex.
Marquis v. City ofSpokane, 130 Wn.2d 97, 113-14, 922 P.2d 43 (1996).
                                               10
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

for personal services." Marquis v. City ofSpokane, 130 Wn.2d 97, 100-01,922 P.2d

43(1996). To establish discriminatory action,"plaintiffs may rely on circumstantial,

indirect, and inferential evidence." Mikkelsen v. Pub. Util. Dist. No. 1 ofKittitas

County, 189 Wn.2d 516, 526, 404 P.3d 464(2017)(assessing a claim under RCW

49.60.180). Specialty's evidence should be "taken together" when considering

whether there are "'reasonable but competing inferences of both discrimination and

nondiscrimination.'"Id. at 535-36(emphasis omitted)(quoting//?// v. BCTIIncome

Fund-I, 144 Wn.2d 172, 186, 23 P.3d 440(2001)).

       Jacobsen was required to show that she was somehow treated differently from

similarly situated members of the opposite sex because of her gender. The Marquis

case provides three examples to do so:

      [(!)] [T]hat he or she was denied the position, [(2)] was offered a
      contract only on terms which made the performance of the job more
       onerous or less lucrative than contracts given to members of the
       opposite sex, or,[(3)] once offered the contract, was treated in a manner
       that made the performance of the work more difficult than that of
       members ofthe opposite sex who were similarly situated.

130 Wn.2d at 113-14. Specialty's claim falls within the third example.'^ After

Specialty was awarded the bid, the performance ofthe work became more difficult.

We consider the County's treatment of Specialty(and Jacobsen)before and after the

award.



          The first two examples are inapplieable. Specialty was awarded the bid, so Jacobsen
cannot claim that she was denied the position. Only one bid was awarded and one contract formed,
so there were no contracts given to members of the opposite sex to compare against.
                                              11
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

               a.      Direct evidence ofdiscrimination

        Specialty argued that Nollmeyer's alleged comment about Jacobsen's attire

and alleged phone call are direct evidence of discrimination. At the walk-through,

Jacobsen described that she "observed the condition ofthe potholes, the parking lot

in general, and the cracks in the paving." CP at 412. She was told that her shoes were

not the most appropriate attire for the walk-through. This comment, standing alone,

likely does not create a reasonable inference of discrimination. It may have even

been a prudent comment to avoid potential injuries.^ After the walk-through,

Nollmeyer called Jacobsen and discouraged her from bidding on the paving project.

The phone call is evidence of discriminatory intent, not benevolence. Cf. Wash.

Supreme Court oral argument,supra, at 31 min., 55 sec.

               b.       Comparative evidence ofSpecialty and Arrow

        Specialty argued that it was treated differently from Arrow, a similarly

situated business, because Arrow received an unscheduled private walk-through. In

comparison. Specialty attended the scheduled walk-through with Nollmeyer and

three county commissioners. Both contractors received information about the basic


        ^ For example, people may file suit ifthey fall or are injured in parking lots. See, e.g., Jones
V. Wal-Mart Stores K, LP, 2014-CA-01826-COA, 187 So. 3d 1100, 1101 (Miss. Ct. App. 2016)
(customer sued Wal-Mart after tripping over a parking lot pothole); Chance v. Wal-Mart E., LP,
3:14-cv-363-WHB-RHW,2015 WL 4496442(S.D. Miss. July 23,2015)(unpublished)(customer
sued Wal-Mart after injuring herself in an indentation in the parking lot); Quick v. Strategic Rest.
Acquisition Co., 3:12-cv-301-CWR-LRA, 2013 WL 1305583 (S.D. Miss. Mar. 28, 2013)
(unpublished)(customer sued Burger King for injuries after tripping on a pothole in the parking
lot).
                                                  12
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

tasks to be performed, but there may be an inference that Nollmeyer was treating

Arrow more favorably by departing from the scheduled walk-through per the terms

of the bid proposal. In addition, Nollmeyer explained that the County normally

checks contractor status on the L&I website prior to awarding bids, but in this case,

he admitted to checking only Specialty's status. He could not recall if he checked

Arrow's status. When viewed in light of all the other evidence, the inference of

discrimination becomes stronger.

             c.      Postaward treatment ofSpecialty

      After Specialty received the award, the County continued to take actions that

underscore our inference of discrimination. The County tracked Specialty's status

via the L&I website^ and altered the terms ofthe contract by requiring a bond for the

project. Normally bidders are checked before an award is made, and the County

offered no explanation for why Specialty was subjected to ongoing tracking

postaward. With regard to the bond, the County claimed that it should have been

included in the bid proposal yet was omitted due to a clerical error. The County

believed the bond to be statutorily mandated by RCW 39.08.010, and Specialty

conceded this. Nonetheless, Specialty argued that failure to require the bond did not

void the contract.




      ® As noted, the County disputes this and claims it must have been a clerical error by L&I.
                                              13
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

       While the County did make multiple attempts to ensure that Specialty still

performed the project (either by obtaining a bond with the premium expense

reimbursed, rebidding the project with a bond, or through work on the small works

roster), none ofthese options adhered to Specialty's award, as given. Eventually the

County conceded the breach of contract issue and agreed to let Specialty perform

the work without a bond. These inconsistent positions about the bond requirement

create doubt about the accuracy of the County's alleged nondiscriminatory reason,

that the entire bond issue was a clerical error.

              d.     The evidence "taken together"

       Some elements of Specialty's evidence, standing alone, might not create a

reasonable inference of discrimination, but when we view the evidence together,the

inference of discrimination becomes quite strong. Because there are reasonable

inferences of discrimination and nondiscrimination, the record is sufficient to defeat

a motion for summaryjudgment. Mikkelsen, 189 Wn.2d at 536. We reverse the Court

of Appeals and reinstate the gender discrimination claim.




         The County took the position that Speeialty failed to make a prima facie claim, so it
never actually assumed any burden to prove a legitimate nondiscriminatory reason under the
framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973).
                                             14
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

B.     Summary judgment dismissal of the negligent misrepresentation claim was
       improper''
        1.     Standard ofreview

       We review the trial court's grant of summary judgment de novo. See supra

Section III.A.l. We review the issue de novo and consider all facts and reasonable

inferences in the light most favorable to the nonmoving party. Mohr v. Grant, 153

Wn.2d 812, 821, 108 P.3d 768(2005)(plurality opinion).

       2.      We reverse the Court ofAppeals because Specialty provided evidence
               ofits reliance damages, which are recoverable

       Specialty sued the County for negligent misrepresentation. To prevail on such

a claim, a plaintiff must prove, by clear, cogent, and convincing evidence that

       (1) the defendant supplied information for the guidance of others in
       their business transactions that was false, (2) the defendant knew or
       should have known that the information was supplied to guide the
       plaintiff in his business transactions,(3)the defendant was negligent in
       obtaining or communicating the false information, (4) the plaintiff
       relied on the false information, (5) the plaintiffs reliance was
       reasonable, and (6) the false information proximately caused the
       plaintiff damages.




        ^' The County argued that Speeialty waived its negligent misrepresentation elaim by failing
to "contend that the trial court or the Court of Appeals erred in its dismissal ofthe claim." Resp't's
Suppl. Br. at 5. When an assignment oferror "was neither argued nor briefed," we deem it waived.
Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 191, 829 P.2d 1061 (1992). Similarly,
when the petitioners "made no arguments to support [their] issue in either their petition for review
or supplemental brief," we did not consider the issue. In re Det. ofA.S., 138 Wn.2d 898,922 n.lO,
982 P.2d 1156(1999). In contrast, in this ease. Specialty explained that it was appealing the Court
of Appeals decision affirming summary judgment for gender discrimination and negligent
misrepresentation, provided a section for the summary judgment standard of review, made some
attempt to briefthe issue in its motion for discretionary review, albeit minimal, and then dedicated
nearly six pages to the argument in its supplemental brief. The claim is not waived.
                                                 15
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

Ross V. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007); Lawyers Title Ins. Corp.

V. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002) (Washington has adopted

Restatement(Second) of Torts § 552(Am. Law Inst. 1965)). The Court of Appeals

affirmed the trial court's summary judgment dismissal, finding that Specialty failed

to prove damages. Specialty Asphalt & Constr., slip op. at 10-11.

      We agree with Specialty that summary judgment was improper because

Specialty provided evidence of its recoverable reliance damages.See Restatement

§ 552B(l)(b)(recoverable damages include "pecuniary loss suffered otherwise as a

consequence of the plaintiffs reliance upon the misrepresentation"). The

Restatement applies the "out-of-pocket loss" rule as the measure of damages, which

is the same rule that is stated in § 549(1), so comments a through f of that section

are applicable. Restatement § 552B cmt. a. "[Ljoss may be sustained... when he

has incurred expenses in preparation for a use ofthe article for which it would have

been appropriate if the representation had been true." Restatement § 549(1) cmt.

a. (emphasis added). The Court of Appeals found that Specialty had no damages

simply because "Specialty never performed on the contract." Specialty Asphalt &

Constr., slip op. at 11. This ignores the availability of reliance damages that are

incurred prior to performance. Even though the County initially offered to cover the

cost ofthe bond and later rescinded the need for the bond, potentially alleviating the

pecuniary damage. Specialty provided evidence that it would cost more than the

                                         16
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

bond premium to acquire a bond. Appellants' Suppl. Br. at 15; CP at 285-86

(referring to administrative time to prepare for the bond and a bond cap that could

preclude the company from bidding on other more lucrative projects that require

bonds). By the time the bond requirement was removed, over two years had passed

so that the project"no longer existed" in the same financial state. Appellants' Suppl.

Br. at 16; CP at 412 (the condition of the work site deteriorated and would require

more labor and materials).

       The County argued that summary judgment was proper because Specialty

could not have justifiably relied on the misinformation in the bid, but this is not a

basis for affirming summary judgment. ESCA Corp. v. KPMG Peat Marwick, 135

Wn.2d 820, 828, 959 P.2d 651 (1998)("Whether a party justifiably relied upon a

misrepresentation is an issue of fact.").

       3.      The public duty doctrine does not bar the claim

       Alternatively, the County argued that Specialty's negligent misrepresentation

claim is barred by the public duty doctrine.'^ Under the public duty doctrine,'"no

liability may be imposed for a public official's negligent conduct unless it is shown

that the duty breached was owed to the injured person as an individual and was not



         At the Court of Appeals, Specialty argued that the puhlic duty doctrine does not apply
because the County was performing a proprietary function and, even if it does apply, there was a
special relationship between the parties creating an exception to the doctrine. Specialty did not
brief this issue at our court, but based on the County's briefing, we consider the doctrine and its
exceptions.
                                                17
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

merely the breach ofan obligation owed to the public in general. Babcock v. Mason

County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001) (plurality

opinion)(internal quotation marks omitted)(quoting Taylor v. Stevens County, 111

Wn.2d 159, 163, 759 P.2d 447 (1988)). An exception to the public duty doctrine

applies if there is a "special relationship" between the parties. Id. at 786. A special

relationship arises where "'(1) there is direct contact or privity between the public

official and the injured plaintiff which sets the latter apart from the general public,

and (2)there are express assurances given by a public official, which (3)give[] rise

to justifiable reliance on the part of the plaintiff.'" Id. (internal quotation marks

omitted)(quoting Beal v. City ofSeattle, 134 Wn.2d 769,785,954 P.2d 237(1998)).

Here, the parties were in privity because the trial court found that an enforceable

contract had been formed. The contract thus formed the basis for express assurances

and gave rise to justifiable reliance by Specialty. The public duty doctrine does not

bar the claim because the parties formed a "special relationship."

      Accordingly, we reverse the Court of Appeals and reinstate the negligent

misrepresentation claim. Specialty alleged pecuniary damages sufficient to

overcome a summary judgment dismissal, whether Specialty justifiability relied on

the misrepresentation is a factual issue, and the claim is not barred by the public duty

doctrine.




                                          18
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

C.     Denial ofthe motion to amend and dismissal ofthe contract claim was
       proper'^
       1.     Standard ofreview

       We review the trial court's denial ofthe motion to amend and dismissal ofthe

contract claim for manifest abuse of discretion. McDonald v. State Farm Fire & Gas.

Co., 119 Wn.2d 724, 737, 837 P.2d 1000 (1992). "The trial court's decision 'will

not be disturbed on review except on a clear showing of abuse of discretion, that is,

discretion manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons.'" Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999)

(quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).

       2.      We affirm the Court ofAppeals because injunctive reliefis the
               exclusive remedyfor Specialty's contract claim

       Specialty argued that it was entitled to pursue monetary damages for its breach

of contract claim, analogizing its case to Scoccolo Construction, Inc. v. City of

Renton, 158 Wn.2d 506, 145 P.3d 371 (2006). The Court of Appeals and the trial

court instead relied on Skyline Contractors, Inc. v. Spokane Housing Authority, 172

Wn. App. 193, 289 P.3d 690 (2012). We agree with the Court of Appeals and the




          The County argued that Specialty waived any relief on its contract claim because
Specialty already gave notice of its inability to perform the paving project. This did not waive the
claim because Specialty still sought monetary damages. The County also argued that Specialty
waived the claim because it failed to brief the issue, but that assertion is easily refuted. See Mot.
for Discr. Review at 18-20.

                                                19
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

trial court that Specialty's exclusive relief for its contract claim was an injunction,

not damages.

      In Scoccolo, we affirmed the monetary damages award in favor of Scoccolo,

the contractor, after Scoccolo completed the project but incurred damages stemming

from delays attributed to Renton. 158 Wn.2d at 509-10. The case presents an obvious

distinguishing factor—Scoccolo completed the project; Specialty did not, nor did it

even begin performance. The trial court addressed this scenario in its order granting

the County's motion to compel, explaining that since "the costs of completing this

project have likely increased. Plaintiff would be entitled to recover reasonable

increased costs because ofthe County's delays." CP at 598. Specialty still chose not

to perform.

      In contrast, in Skyline, the facts were much more analogous to Specialty's

situation. The Spokane Housing Authority(SKA)awarded a public works contract

to Skyline, creating mutual contractual responsibilities. Skyline, 172 Wn. App. at

200. The SKA then repudiated its agreement and contracted with another party. Id.

at 204."Had this not been a public works contract... Skyline [would have a claim]

for damages for breach of contract." Id. The court in Skyline appropriately relied on

principles established by this court. In Mottner v. Town of Mercer Island, we

explained that an injunction, not monetary damages, is the "appropriate remedy for

the bidder on a public work contract who feels aggrieved by the action of the

                                         20
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

government." 75 Wn.2d 575, 579, 452 P.2d 750 (1969). Similarly, monetary

damages were denied in Peerless Food Products, Inc. v. State, 119 Wn.2d 584, 835

P.2d 1012(1992).

      [Wjhile equitable, extraordinary, or declarative relief may serve the
      public interest by preventing the award and execution of a contract for
      an excessive amount, permitting damages in such cases serves the
      bidder's interest alone, and is contrary to the public interest the
      competitive bidding laws were designed to protect, further burdening a
      treasury already injured by paying too high a price for the goods or
      services.

Id. at 591 (emphasis omitted) (quoting James L. Isham, Annotation, Public

Contracts: Low Bidder's Monetary Relief against State or Local Agency for

Nonaward ofContract, 65 A.L.R.4th 93, § 2[a](1988)).

      The trial court properly denied the motion to amend and dismissed the contract

claim because Specialty can only pursue an injunction. Though we affirm the Court

of Appeals on this issue. Specialty is not barred from recovering monetary damages

from the County. To do so. Specialty must pursue them through its negligent

misrepresentation claim, supra Section III.B, not a breach of contract claim.

                                 IV. CONCLUSION


      Specialty sued      the   County for       gender    discrimination, negligent

misrepresentation, and breach of contract, but lost all three claims at the trial court.

The Court of Appeals affirmed. We reverse the Court of Appeals in part and affirm

in part. We reverse the Court of Appeals with regard to the gender discrimination


                                          21
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7

and negligent misrepresentation claims. Specialty defeated the County's motion for

summary judgment, and those claims are hereby reinstated. We affirm the Court of

Appeals holding that an injunction is the exclusive remedy for Specialty's contract

claim. That claim was properly dismissed. Neither party is awarded attorney fees.''^




          Both parties requested an award of reasonable attorney fees and eosts on appeal. RAP
18.1(b)requires "'[a]rgument and eitation to authority' as neeessary to inform the court of grounds
for an award, not merely 'a bald request for attorney fees.'" Hudson v. Hapner, 170 Wn.2d 22, 33,
239 P.3d 579(2010)(alteration in original)(quoting Wilson Court Ltd. P'ship v. Tony Maroni's,
Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998)). Specialty requested an award of reasonable
attorney fees under the Washington Law Against Discrimination (WLAD). This slight reference
is hardly an argument. Nonetheless, we recognize that RCW 49.60.030(2) provides for recovery
of attomey fees. But Specialty's request is premature. Specialty may recover attomey fees if the
trial court finds that the County violated WLAD on remand. The County sought attomey fees on
the basis that Specialty's appeal was frivolous. This argument surely fails for the gender
discrimination and negligent misrepresentation claims. With regard to the contract claim, we agree
with the Court of Appeals that there were debatable issues and thus deny the request.
                                               22
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7




                                               ihXK             , (^C, ■
WE CONCUR:




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                           A




                                      23
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
(Gordon McCloud, J., concurring in part/dissenting part)




                                    No. 95085-7


       GORDON McCLOUD, J. (concurring in part/dissenting in part)—I agree

with the majority's analysis of the negligent misrepresentation and breach of

contract claims. The negligent misrepresentation claim clearly survives summary

judgment; the breach of contract claim clearly fails on summary judgment.

       I also agree with the bulk of the majority's analysis of the gender

discrimination claim: "[w]e consider all facts and reasonable inferences in the light

most favorable to the nonmoving party"; "the nonmoving party may not rely on

speculation," majority at 9; we view the evidence cumulatively to decide "whether

there are 'reasonable but competing inferences of both discrimination and

nondiscrimination,"' id. at 11 (internal quotation marks omitted){(ypotmg Mikkelsen

V. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 536, 404 P.3d 464

(2017)).

      But I disagree with the majority's application ofthose rules to the facts ofthis

case. The majority is certainly correct that Lincoln County (County)'s comment

about the high heels worn by Specialty Asphalt & Construction LLC's owner, Lisa
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
(Gordon McCloud, J., concurring in part/dissenting part)


Jacobsen, cannot give rise to an inference of discrimination; there is absolutely no

indication that this comment about inappropriate attire at a construction work site

was directed at Jacobsen due to gender rather than the more obvious safety

concern. Clerk's Papers at 280, para. 9 (Aff. of Lisa Jacobsen in Opp'n to Def.'s

Mot. for Summ. J.) ("At the beginning of the walk-through, in front of the

Commissioners, Mr. Nollmeyer had made a comment that the shoes with he[e]ls that

I was wearing was not the most appropriate attire for a walk-through."). But the

remaining factors upon which the majority relies do not give rise to an inference of

gender discrimination either. Those remaining factors are providing a bidding

competitor on this relatively small public works project with an unscheduled walk

through (majority at 12), checking Specialty's contractor status on the appropriate

state website while not remembering whether the competing bidder's status was

checked {id. at 13), tracking Specialty's status on that website after awarding the bid

{id.), and "alter[ing]the terms ofthe contract by requiring a bond for the project." Id.

      Providing a bidding competitor on a relatively small public works project with

an unscheduled and likely uncomplicated walk-through as a courtesy, when there is

no indication that such a courtesy was or would have been denied to Jacobsen, does

not give rise to an inference of discrimination in my mind. Checking and tracking

Specialty's contractor status on the appropriate state website set up for that purpose
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
(Gordon McCIoud, J., concurring in part/dissenting part)


while not remembering whether the competing bidder's status was checked does not

give rise to an inference of discrimination in my mind either; checking seems like

an indication of prudence, not discrimination.

       The final fact upon which the majority relies is the County's decision to alter

what was clearly a significant contract term after it awarded the bid. That is certainly

an actionable alteration; that is the reason that the negligent misrepresentation claim

clearly survives summary judgment. But when combined with the fact that the

County took so many other steps to try to address this problem—like "the County['s]

. . . multiple attempts to ensure that Specialty still performed the project (either by

obtaining a bond with the premium expense reimbursed, rebidding the project with

a bond, or through work on the small works roster)," majority at 14—^this does not

give rise to an inference ofgender discrimination in my mind either. Instead, it gives

rise to an inference of negligent misrepresentation—^which is what I think this case

is really about.

      For these reasons, I respectfully concur in part and dissent in part.
Speciality Asphalt & Constr. v. Lincoln County, No. 95085-7
(Gordon McCloud, J., concurring in part/dissenting part)
