      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BLACK DIAMOND DEVELOPMENT
COMPANY, LLC, a Washington                    No. 71114-8-1
Limited Liability Corporation;
LEE WITTENBERG, individually and              DIVISION ONE
on behalf of his marital community;
WAYNE COURTNEY, individually and
on behalf of his marital community,           UNPUBLISHED OPINION        c




                             Appellants,

      v.



UNION BANK, N.A.
               j   •'•'»•)




                             Respondent.      FILED: March 30, 2015


       Leach, J. — Black Diamond Development LLC and guarantors Lee

Wittenberg and Wayne Courtney appeal the dismissal of their claims against

Union Bank for an alleged breach of a permanent financing agreement and an

award of attorney fees to Union Bank. Union Bank challenges the timeliness of

this appeal.   Because the court resolved Union Bank's counterclaim no earlier

than October 17, 2013, Black Diamond timely appealed.     Because the alleged

financing agreement omits material terms and does not satisfy the requirements

of 12 U.S.C. § 1823(e), Union Bank has no contractual obligation to extend

permanent financing to Black Diamond. But because Black Diamond put Union

Bank on notice of its improper accounting claim and the court did not consider
NO. 71114-8-1/2




the merits of the claim, the trial court erroneously dismissed it. As a result, no

party has yet prevailed in this case, and any award of attorney fees is premature.

We affirm in part, reverse in part, and remand for proceedings consistent with

this opinion.

                                     FACTS


       On November 28, 2005, Black Diamond Development LLC and Frontier

Bank made an agreement for the construction financing of two commercial

buildings in Black Diamond, Washington. They signed 11 related documents for

the transaction.   These included a construction loan agreement, commercial

guarantees executed by Black Diamond members Lee Wittenberg and Wayne

Courtney, a deed of trust, a promissory note, and the notice of final agreement.

       In 2007, Black Diamond and Frontier Bank signed two documents

extending the maturity date of the construction loan agreement.          The first

extended it 90 days, and the second extended it until September 25, 2010.

       On April 30, 2010, Frontier Bank failed.        Union Bank became the

successor in interest to the Federal Deposit Insurance Corporation (FDIC) as

receiver of Frontier Bank and acquired the Black Diamond construction loan. In

May 2010, Union Bank contacted Black Diamond to inform it that the loan

agreement would mature in September.        Black Diamond challenged that date

based on its understanding that it had an agreement with Frontier Bank for
NO. 71114-8-1/3




permanent financing.    From 2010 to July 2012, Black Diamond continued to

make principal and interest payments to Union          Bank, despite the loan

agreement's maturation.

       In January 2012, Union Bank issued a notice of default to Black Diamond,

demanding all funds owed under the loan agreement.          Union Bank issued

revised notices in June and August of 2012, stating the amount it claimed Black

Diamond owed after it defaulted by failing to pay the full balance owed when the

loan matured in 2010.     In response, Black Diamond denied the default and

requested information about Union Bank's default calculation.

Procedural History

       On August 9, 2012, Black Diamond filed a complaint, asserting breach of

contract and estoppel claims. For relief, it requested damages and a permanent

injunction to prevent foreclosure or pursuit of default as long as it made the

"required monthly payment on the loan."       On September 11, 2012, Black

Diamond filed a "motion for preliminary injunction and order directing defendant

to provide an accounting." The trial court did not rule on this motion. To avoid

foreclosure, Black Diamond paid "'under protest'" the amount Union Bank

claimed due and informed the bank that it did "'not agree that the bank has

properly calculated the amount that is owing for many reasons, which is the basis

of the lawsuit.'"
NO. 71114-8-1/4




       Union Bank filed its answer and counterclaim on June 18, 2013.      In the

counterclaim, it alleged that Black Diamond owed it attorney fees under the

construction loan agreement and Wittenberg and Courtney owed them under

their guarantees. Black Diamond, Wittenberg, and Courtney filed a reply on July

3, 2013, denying any default, alleging that Wittenberg and Courtney's guarantee

liability ended when Black Diamond paid the full amount Union Bank claimed,

and asserting seven affirmative defenses.

       In late 2012, Black Diamond served its first discovery request, asking for

documents revealing the amount and calculations for every line item charged on

default.   On July 2, 2013, the trial court granted Black Diamond's motion to

compel Union Bank's production of internal documents.

       On July 19, 2013, Union Bank filed a motion for summary judgment.

Black Diamond filed a motion to stay any hearing on this motion until after Union

Bank provided the ordered discovery materials. The trial court granted summary

judgment to Union Bank on August 30, 2013. The trial court decided that Union
Bank had no obligation to provide permanent financing to Black Diamond

because the alleged agreement "is missing some material provisions that defeat

it as a contract. . . . [I]f I'm looking at the commitment letter, there aren't

enough—what is left to negotiate is really a vast majority of the contract and not

simply small terms."
NO. 71114-8-1/5




        On September 9, 2013, Black Diamond filed a motion for clarification and

reconsideration, asking the court to address its accounting claim based upon

Union Bank's alleged misapplication of payments. On October 2, 2013, the trial

court denied Black Diamond's motion.           On October 17, 2013, the trial court

entered an order awarding Union Bank $93,154.54 in attorney fees against Black

Diamond, Wittenberg, and Courtney. On October 31, 2013, the court entered a

final judgment, dismissing all claims with prejudice and holding Black Diamond,

Wittenberg, and Courtney jointly and severally liable for the attorney fees.

        Black Diamond, Wittenberg, and Courtney appealed on November 5,

2013.


                            STANDARD OF REVIEW


        This court reviews a summary judgment motion de novo.1                 A court

properly grants summary judgment if no genuine issue of material fact exists and

the moving party is entitled to a judgment as a matter of law.2

                                    ANALYSIS


Timeliness of Appeal

        Union Bank challenges this court's authority to hear this appeal, claiming

Black Diamond, Wittenberg, and Courtney filed it too late.          Black Diamond


       1 Snohomish County v. Ruqg, 115 Wn. App. 218, 224, 61 P.3d 1184
(2002).
       2 CR 56(c).
                                         -5-
NO. 71114-8-1/6




argues that it had 30 days after the final judgment entered on October 31, 2013,

to appeal all issues decided by the trial court. Union Bank argues that the time to

appeal should be measured from one of two dates, either August 30, when the

trial court entered its order granting Union Bank summary judgment, or October

1, when the trial court entered its order denying Black Diamond's motion for

reconsideration and clarification.     It argues that those orders resolved all

substantive claims, leaving undecided only issues of attorney fees.

       RAP 5.2(a) generally requires that a party seeking appellate review of a

superior court decision file a notice of appeal within 30 days after the trial court's

entry of a final judgment. For purposes of this deadline, this rule considers as

final a judgment that finally decides all substantive issues between the parties but

reserves for a future decision "an award of attorney fees or costs."3

       A timely notice of appeal of a trial court decision relating to attorney
       fees and costs does not bring up for review a decision previously
       entered in the action that is otherwise appealable under rule 2.2(a)
       unless a timely notice of appeal has been filed to seek review of the
       previous decision.[4]

       A motion for reconsideration of a final judgment extends the appellate

filing deadline to 30 days after the trial court's entry of an order on that motion.5

      3 Carrara. LLC v. Ron & E Enters.. Inc.. 137 Wn. App. 822, 825-27, 155
P.3d 161 (2007); RAP 2.2(a)(1).
      4 RAP 2.4(b).
      5 RAP 5.2(e); Brower v. Pierce County, 96 Wn. App. 559, 562, 984 P.2d
1036 (1999) (citing Buckner. Inc. v. Berkev Irriq. Supply, 89 Wn. App. 906, 911-
12,951 P.2d 338 (1998)).
                                         -6-
NO. 71114-8-1/7




"[Ojnly in extraordinary circumstances and to prevent a gross miscarriage of

justice"6 will an appellate court extend the time to file a notice of appeal. Black

Diamond has not requested an extension of time.

       When a case includes multiple claims,

       the court may direct the entry of a final judgment as to one or more
       but fewer than all of the claims or parties only upon an express
       determination in the judgment, supported by written findings, that
       there is no just reason for delay and upon an express direction for
       the entry of judgment.[7]

If the trial court has not decided all of the claims or all of the rights and liabilities

of the parties, a judgment "is subject only to discretionary review until the entry of

a final judgment adjudicating all the claims, counts, rights, and liabilities of all the

parties."8

       On August 30, 2013, the trial court entered a summary judgment order

dismissing Black Diamond's claims with prejudice. But the court did not decide

Union Bank's counterclaim for attorney fees against Black Diamond under the

construction loan agreement and against Wittenberg and Courtney under their

commercial guarantees. The plaintiffs asserted seven affirmative defenses to the

counterclaim, many of which challenged the viability of the contracts providing

the basis for the counterclaim. The order denying Black Diamond's motion for



       6 RAP 18.8(b).
       7 CR 54(b).
       8 RAP 2.2(d).
                                           -7-
NO. 71114-8-1/8




reconsideration also did not address the merits of Union Bank's counterclaim or

the plaintiffs' affirmative defenses to it. Until the court decided the merits of these

issues, it had not entered a final judgment that commenced the 30-day appeal

period.

          Union Bank cites Carrera, LLC v. Ron & E Enterprises, Inc.,9 and Bushonq

v. Wilsbach10 for the proposition that a party must appeal an order granting

summary judgment and dismissing all claims, though a court has not decided

attorney fees and costs. But as Black Diamond argues, in Carrera and Bushong

appellants appealed more than 30 days after a court decision resolving all claims

and establishing a right to recover fees. This precluded them from challenging

the earlier decision establishing a legal basis for the fees awarded by a later

decision.11     The trial court's summary judgment order and its order denying

reconsideration left unresolved more than the amount of attorney fees and costs.

The court's October 17, 2013, order granting attorney fees resolved the seven

alleged affirmative defenses to the counterclaim as well as the individual

plaintiffs' liability on their guarantees. Thus, Carrera and Bushonq do not support

Union Bank's position.       Because no final judgment resolving Union Bank's




          9 137 Wn. App. 822, 825, 155 P.3d 161 (2007).
          10 151 Wn. App. 373, 376-77, 213 P.3d 42 (2009).
          11 Carrara, 137 Wn. App. at 826; Bushonq, 151 Wn. App. at 376.
                                          -8-
NO. 71114-8-1/9




counterclaim entered before October 17, 2013, Black Diamond timely filed its

notice of appeal on November 5, 2013.

Permanent Financing

      Black Diamond contends that the record establishes the existence of

genuine issues of material fact about an agreement for permanent financing.

Union Bank responds that the record shows no genuine issues of material fact

exist about the failure of Black Diamond and Frontier to agree to necessary

terms, about the failure of Black Diamond to perform conditions required under

its alleged contract, or about the application of 12 U.S.C. § 1823(e) to bar Black

Diamond's claim.


      Washington courts use an objective manifestation test to determine if

parties have formed a contract.12 This means that the parties must objectively

manifest their mutual agreement to the contract terms.13 In addition, a contract

for real estate financing "must be definite enough on material terms to allow

enforcement without the court supplying those terms."14

      Black Diamond argues that Frontier Bank's loan commitment letter, the

2005 loan agreement documents, and later documents authored by a Frontier

Bank vice president meet these requirements or at least raise genuine issues of

      12 Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 177, 94
P.3d 945 (2004).
      13 Keystone Land & Dev., 152 Wn.2d at 177.
      14 Setterlund v. Firestone. 104 Wn.2d 24, 25, 700 P.2d 745 (1985).
                                        -9-
NO. 71114-8-1/10




material fact.   Union Bank disputes whether the court should consider some of

these documents and contends that they do not contain all of the material and

essential terms.     It identifies as missing the loan amount, default terms,

prepayment terms, and cure rights.       But Black Diamond responds that the

commitment letter and promissory note contain the amount agreed upon.             It

claims the 2007 agreement, the promissory note, and the deed of trust provide

the agreed upon default terms and cure rights.       It also argues that the 2007

agreement and the promissory note contain the prepayment terms.

       Union Bank first argues RCW 19.36.110 prohibits the use of e-mail or

other correspondence to establish the rights and obligations of the parties. This

statute states, "The rights and obligations of the parties to a credit agreement

shall be determined solely from the written agreement." Because the documents

relied upon by Black Diamond do not establish an enforceable agreement, we do

not need to decide this issue.


       Union Bank next argues that no mutual assent to necessary terms

occurred. In Hubbell v. Ward,15 the court identified 13 material terms absent from

the real estate contract in issue required to support a specific performance claim.

The contract contemplated a future purchase contract, but the parties had not

specified the terms of this contract. As a result, the court did not enforce the


       15 40 Wn.2d 779, 782-83, 246 P.2d 468 (1952).
                                       -10-
NO. 71114-8-1/11




contract because no mutual assent occurred.16 The 13 necessary terms included

the right to default.17 A contract must also contain a price or amount.18

       Black Diamond cites Farm Crop Energy, Inc. v. Old National Bank of

Washington19 to argue that the loan documents contained sufficient terms.

Though the Farm Crop court did not address the issue of what material terms an

agreement for permanent financing must contain and remanded the case on

different grounds, Black Diamond finds it instructive because the court tacitly

accepts a trial court jury instruction, stating, a "loan commitment is a written

contract which obligates the bank to loan money to the plaintiff... in accordance

with the terms and conditions of the commitment."20        The commitment letter

produced in full by the dissent in that case contains certain terms—interest rate,

amortization, collateral, duration, payment schedule, and loan amount.21 Black

Diamond argues that the Frontier Bank commitment letter with similar terms also

creates a contract.


       But, as Union Bank correctly notes, Frontier Bank's loan commitment

letter offered no more than an "agreement to agree,"22 unenforceable in

       16 Hubbell, 40 Wn.2d at 786-87.
       17 Hubbell, 40 Wn.2d at 782.
     18 Hubbell, 40 Wn.2d at 780-81; Sea-Van Invs. Assocs. v. Hamilton, 125
Wn.2d 120, 129, 881 P.2d 1035 (1994).
     19 109 Wn.2d 923, 750 P.2d 231 (1988).
      20 Farm Crop, 109 Wn.2d at 938 n.2 (Callow, J., dissenting).
      21 Farm Crop, 109 Wn.2d at 934-36 (Callow, J., dissenting).
       22 See Keystone Land & Dev., 152 Wn.2d at 175-76.
                                         -11-
NO. 71114-8-1/12




Washington.23 The letter states, "When all conditions governing a roll over loan

have been met, Frontier Bank shall have the exclusive right to place the

permanent financing of the subject property for a maximum period of three

months at terms and conditions that are acceptable to Borrower and Lender."

       A document contemplating future negotiations does not establish mutual

assent to a binding agreement.24 To be enforceable, "[a] contract to enter into a

future contract must specify all its material and essential terms, and leave none

to be agreed upon as the result of future negotiations."25 The commitment letter

cannot be read to promise more than permanent financing on future "terms and

conditions that are acceptable to Borrower and Lender." It plainly contemplates a

future agreement for permanent financing at unstated terms and conditions. The

documents identified by Black Diamond do not show any objective manifestation

of mutual intent to incorporate the terms of the 2005 loan documents in

permanent financing.   At best, they reaffirm Frontier Bank's initial promise to

provide permanent financing on terms to be negotiated in the future.

       Further, the record shows that Black Diamond never met the conditions

described in the documents it claims establish an agreement for permanent

financing.   The commitment letter identified two conditions Frontier required

       23 Keystone Land & Dev., 152 Wn.2d at 176.
       24 Keystone Land & Dev., 152 Wn.2d at 179.
      25 Hubbell, 40 Wn.2d at 784-85; Kruse v. Hemp, 121 Wn.2d 715, 722, 853
P.2d 1373(1993).
                                      -12-
NO. 71114-8-1/13




before making a loan for permanent financing: (1) construction of Building C and

(2) the aggregate collected rents of both buildings B and C equal $381,000 or

more.    Black Diamond argues that it fulfilled the condition when it achieved

aggregate collected rent of $381,000 for building B alone.       But it never built

Building C, and the record does not reveal that the parties agreed to waive that

condition.26 At oral argument, Black Diamond conceded that the absence of

Building C would materially affect the value of the collateral it offered for

permanent financing.

        Finally, Union Bank claims that 12 U.S.C. § 1823(e) bars Black Diamond's

contract claim. This statute limits the agreements enforceable against the FDIC

or its successor in interest. To be enforceable, the agreement must (1) be in

writing, (2) be executed by the parties contemporaneous with the acquisition of

the asset (permanent loan), and (3) be approved by the bank's board of directors

or loan committee, with this approval reflected in meeting minutes maintained

continuously by the bank as an official record.27 An agreement must satisfy all

these requirements to be enforceable against the FDIC or its successor in

interest.28


        26 See Sea-Van Invs.. 125 Wn.2d at 127.
        2712 U.S.C. § 1823(e); D'Oench, Duhme & Co. v. Fed. Deposit Ins. Corp.,
315 U.S. 447, 456, 62 S. Ct. 676, 86 L. Ed. 956 (1942).
        28 Bell & Murphy & Assocs., Inc. v. Interfirst Bank Gateway, N.A.. 894 F.2d
750, 754 (5th Cir. 1990); see Nw. Land & Inv.. Inc. v. New W. Fed. Sav. & Loan
Ass'n. 64 Wn. App. 938, 943-44, 827 P.2d 334 (1992).
                                        -13-
NO. 71114-8-1/14




       Union Bank argues that no genuine issue of material fact exists as to

whether the parties fully and contemporaneously executed an agreement for

permanent financing. Black Diamond argues that the loan documents expressly

contained a permanent financing obligation, placing this situation outside of that

covered by 12 U.S.C. § 1823(e).29        But "the proper inquiry is 'whether the

borrower lent himself to a scheme or arrangement that would be likely to mislead

or deceive banking authorities.'"30    Black Diamond relies upon a 2005 loan

agreement, a commitment letter, and 2007 agreements executed at different

times. These documents do not satisfy the requirement for document execution

contemporaneous with acquisition of the pertinent asset.      12 U.S.C. § 1823(e)

bars Black Diamond's claims.


Improper Accounting

       Black Diamond asserts that genuine issues of material fact exist

concerning its claim for "incorrect and excessive amounts" Union Bank charged it

on default and that the court erred in dismissing its motion for reconsideration

and clarification.   Black Diamond contends the court failed to decide if Union

Bank improperly calculated the amount Black Diamond owed on default, as well

       29 See In re Beitzell & Co., Inc.. 163 B.R. 637, 649 (Bankr. D.D.C. 1993)
("A careful examination of the cases finding that a claim or defense is barred by
D'Oench and/or § 1823(e) reveals that those defenses or claims are premised
solely on unrecorded agreements, promises or representations and not on any
obligation found explicitly in the loan documents.").
       30 Beitzell, 163 B.R. at 646 (incorrectly Quoting D'Oench, 315 U.S. at 460).
                                       -14-
NO. 71114-8-1/15




as whether the bank charged Black Diamond for environmental regulation

compliance reviews and an appraisal after assuring Black Diamond it would not.

Union Bank asserts that Black Diamond did not plead this claim and that in any

case the improper accounting claim was not ripe for review.

       Washington requires a party to give proper notice of a claim to opposing

parties in its pleadings through "'a concise statement of the claim and the relief

sought.'"31 A complaint fails if it does not give defendants proper notice.32 But

courts construe pleadings "to do substantial justice,"33 and even if a "claim 'is not

a vision of precise pleading,'" it may still give the notice required by CR 8.34

       In its original complaint, Black Diamond alleged that it paid Union Bank

$61,350 as an up-front permanent loan commitment fee, that Union Bank did not

credit Black Diamond for loan payments, and that the bank improperly charged

Black Diamond for appraisal and environmental reviews. The complaint stated,

       24. ... Plaintiffs believe that Defendant has improperly calculated
       the interest, failed to properly apply payments to principal and is
       seeking repayment of improper amounts in the appraisal and
       environmental review categories, as those costs relate,



      31 Champagne v. Thurston County, 163 Wn.2d 69, 84, 178 P.3d 936
(2008) (quoting Pac. Nw. Shooting Park Ass'n v. City of Seguim, 158 Wn.2d 342,
352, 144 P.3d 276 (2006)); CR 8(a).
       32 Champagne. 163 Wn.2d at 84.
       33 CR 8(f).
       34 Burnet v. Spokane Ambulance. 131 Wn.2d 484, 492, 933 P.2d 1036
(1997) (quoting Schoeninq v. Grays Harbor Cmtv. Hosp., 40 Wn. App. 331, 336-
37, 698 P.2d 593 (1985)).
                                         -15-
NO. 71114-8-1/16



      substantially or in part, to the very loan which Plaintiffs sought and
      Defendant refused to give.

In its answer and counterclaim, Union Bank affirmed the amounts it claimed

Black Diamond owed and denied the allegations in paragraph 24. We conclude

that Black Diamond sufficiently pleaded a claim that Union Bank failed to properly

calculate the amount owed on default.


      Union Bank argues that Black Diamond proved its original complaint did

not assert this claim because it later served a proposed amended complaint,

specifically stating this claim before summary judgment and filed a motion for

clarification also addressing the improper accounting claim postsummary

judgment.   Union Bank also argues that Black Diamond untimely attempted to

amend the complaint under CR 15(a) and King County Local Rule (KCLR) 4.2 by

surreptitiously adding the claim into its motion for clarification. The bank cites

Doyle v. Planned Parenthood of Seattle-King County, Inc..35 Haselwood v.

Bremerton Ice Arena. Inc.,36 and Parry v. Windermere Real Estate/East, Inc.,37 to


      35 31 Wn. App. 126, 132, 639 P.2d 240 (1982) (plaintiff improperly tried to
amend a complaint to include a products liability claim not recognized by
Washington).
      36 137 Wn. App. 872, 889-90, 155 P.3d 952 (2007) aff'd sub nom. Estate
of Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 210 P.3d 308 (2009)
(the Court of Appeals found no prejudice in the trial court's dismissal of the
motion to amend and claims were groundless because they alleged a violation of
Washington's public works act, chapter 39.04 RCW, though the case involved a
private project).
       37 102 Wn. App. 920, 10 P.3d 506 (2000). Union Bank cites this case to
show that KCLR 4.2(a)(1) prohibits raising additional claims or defenses after the
date designated in the case schedule. But the court actually concludes that "it
                                        -16-
NO. 71114-8-1/17




support this position. But we do not find cases about late amendments to a

complaint helpful because we conclude that Black Diamond sufficiently pleaded a

claim for improper accounting in its original complaint. While Black Diamond's

proposed amended complaint more clearly asserted this claim, this clearer

statement does not alter the fact that paragraph 24 of its original complaint

provided sufficient notice to Union Bank.

        Union Bank also claims that the improper accounting claim first became

ripe when Black Diamond asked Union Bank for its payoff demand in October

2012, after it filed its August 2012 complaint. To determine if a claim presents a

cause of action ripe for review, a court evaluates the fitness of the issues for

judicial review and the hardship that withholding consideration would bring to the

parties.38   Union Bank first issued a notice of default to Black Diamond on

January 11, 2012. This notice demanded an aggregate amount of $2,767,089.79

due, with interest accruing daily. Union Bank issued a new notice on June 11,

2012.    This default notice provides an accounting, demands payment, lists

consequences of default, and states that borrowers and guarantors have

recourse to the courts to "contest the alleged default on any proper ground." It


would defy logic to hold that a party's properly preserved defense is waived
merely by signing a form required by local rule for case scheduling and
management." Parry, 102 Wn. App. at 928.
      38 First United Methodist Church v. Hearing Exam'r, 129 Wn.2d 238, 245,
916 P.2d 374 (1996).
                                        -17-
NO. 71114-8-1/18




includes a claim for costs including an "appraisal" of $11,300.00 and a fee for

"environmental" of $2,200.00. A final August 13, 2012, default notice contains

the same information.        We conclude that the specific amounts Union Bank

demanded and the foreclosure Black Diamond faced if it did not pay those

amounts made the issue ripe for review.

      The court erroneously found that "all of plaintiffs' claims arose out of

plaintiffs' mistaken belief that the Construction Loan Agreement obligated Union

Bank to extend permanent financing" and did not address the issue of an alleged

improper accounting. We reverse the dismissal of this claim.39

Equitable Estoppel

      The trial court also dismissed Black Diamond's equitable estoppel claim.

Black Diamond argues that "[independent from overages on default," this court

should estop Union Bank from collecting default interest and penalties because

of Union Bank's representations about the extension of permanent financing.

Union Bank cites case law to argue that equitable estoppel may operate only as

a defense, not an offense. Therefore, the bank argues, Black Diamond may not

assert its estoppel claim.




      39 See Beers v. Ross, 137 Wn. App. 566, 569, 154 P.3d 277 (2007); Ash
v.Dep't of Labor & Indus., 173 Wn. App. 559, 566-67, 294 P.3d 834 (2013).
                                        -18-
NO. 71114-8-1/19




       But a party seeking damages based on an estoppel claim must assert a

promissory estoppel claim, not a claim for equitable estoppel.40 While at least

one Washington case recasts a claim for equitable estoppel as one for

promissory estoppel,41 we decline to do so here. A claim for promissory estoppel

requires a plaintiff to prove that a promise was made and the promisor should

reasonably expect that promise to cause the promisee to change positions, the

promise does cause the promisee to do so, and the promisee justifiably relies on

the promise in such a way that a court's enforcement of the promise provides the

only way to prevent injustice.42

       Black Diamond has not presented evidence sufficient to create a genuine

issue of material fact about any promise for permanent financing on which it

could justifiably rely. The trial court did not err in dismissing its estoppel claim.

Motion To Stay Pending Discovery

       Before Union Bank filed its motion for summary judgment, the trial court

granted Black Diamond's motion to compel Union Bank to provide e-mail

documentation.     When Union Bank filed its summary judgment motion, Black

Diamond filed a CR 56(f) motion for a stay until it received pending discovery.

       40 Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 259, 616
P.2d 644 (1980); McCormick v. Lake Wash. Sch. Dist., 99 Wn. App. 107, 117,
992P.2d511 (1999).
       41 See, e.g., McCormick, 99 Wn. App. at 117.
       42 Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 171-72, 876 P.2d 435
(1994).
                                          -19-
NO. 71114-8-1/20




The court reserved its decision on the CR 56(f) motion for oral argument on

August 30, 2013. On that date, the trial court granted Union Bank's summary

judgment motion, without the bank's production of documents.43

         An appellate court reviews denial of a CR 56(f) motion for abuse of

discretion.44 A trial court abuses its discretion when its decision is manifestly

unreasonable or based upon untenable grounds or untenable reasons.45 If the

requesting party does not offer a good reason for the delay in obtaining the

desired evidence or fails to state what the evidence would establish or the

evidence will not raise a genuine issue of material fact, the court may deny the

motion.46

         Black Diamond argues that it required additional discovery to resolve

factual issues about the intent of the parties and the meaning of agreement

terms.    Union Bank counters that no genuine issue of material fact as to the

parties' mutual assent to terms exists because the alleged agreement did not




         43 As Union Bank mentions, the standard under CR 26(b)(1) requires only
that requested discovery be "relevant to the subject matter involved in the
pending action," and thus the court could grant a CR 26 motion but deny a CR
56(f) motion under the rule's more stringent standard.
         44 Tellevik v. 31641 W. Rutherford St., 120 Wn. 2d 68, 90, 838 P.2d 111
(1992) (citing Coqqle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990)).
         45 T.S. v. Boy Scouts of Am.. 157 Wn.2d 416, 423, 138 P.3d 1053 (2006)
(quoting State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
       46 Pitzer v. Union Bank of Cal.. 141 Wn.2d 539, 556, 9 P.3d 805 (2000)
(quoting Tellevik. 120 Wn.2d at 90).
                                       -20-
NO. 71114-8-1/21




contain necessary material terms. Therefore internal e-mail could not prove to a

fact finder any bilateral intent to agree.

       Black Diamond sought the requested documents to prove the existence

and scope of a contract for permanent financing, breach of Frontier Bank's duty

to act in good faith, and the application of the D'Oench47 doctrine under 12

U.S.C. § 1823(e). But Union Bank had placed the loan file into evidence. Black

Diamond does not show how any further evidence would have raised an issue of

material fact about the missing necessary material terms.      Thus, we conclude

that the court did not abuse its discretion when it denied Black Diamond's motion

for stay pending discovery.

Wittenberg and Courtney's Joint and Several Liability

       In its October 17, 2013, order, the trial court stated that the attorney fees

clause in the 2005 loan agreement and the commercial guarantees entitled

Union Bank to attorney fees and that "[pjlaintiffs Lee Wittenberg and Wayne

Courtney are individually liable for Union Bank's attorneys' fees under the terms

of the Commercial Guaranties."          The October 31, 2013, judgment states,

"Plaintiffs Black Diamond Development Company, LLC, Lee Wittenberg and

Wayne Courtney are jointly and severally liable for Union Bank, N.A.'s attorneys'

fees and costs." Black Diamond argues that the court erred in finding Wittenberg

       47 D'Oench. Duhme & Co. v. Fed. Deposit Ins. Corp.. 315 U.S. 447, 62 S.
Ct. 676, 86 L Ed. 956(1942).
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and Courtney liable for attorney fees because Black Diamond paid the principal

debt and asserts that the court prematurely awarded attorney fees because it

never addressed the improper accounting issue.

      This court reviews de novo whether a contractual provision authorizes an

award of attorney fees.48 Under Washington law, "when [a] principal debt has

been discharged, the guarantor is likewise relieved of liability."49   But if a

contract's language provides otherwise, a court will hold a guarantor liable.50

Here, the 2005 loan agreement states, "Borrower agrees to pay upon demand all

of Lender's costs and expenses, including Lender's attorneys' fees and Lender's

legal expenses, incurred in connection with the enforcement of this Agreement."

The commercial guaranty agreements signed by Wittenberg and Courtney,

respectively, provide, "Guarantor agrees to pay upon demand . . . Lender's

attorneys' fees and Lender's legal expenses, incurred in connection with the

enforcement of this Guaranty."           The agreements make each guarantor

responsible for the "Indebtedness of Borrower to          Lender"   and   define

indebtedness to include attorney fees.




       48 Tradewell Grp.. Inc. v. Mavis. 71 Wn. App. 120, 126, 857 P.2d 1053
(1993).
      49 Fruehauf Trailer Co. of Canada Ltd. v. Chandler. 67 Wn.2d 704, 707,
409P.2d651 (1966).
      50 Seattle-First Nat'l Bank v. W. Coast Rubber Inc.. 41 Wn. App. 604, 609-
10, 705 P.2d 800 (1985).
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NO. 71114-8-1/23




       This action arose out of Black Diamond's breach of contract claims


asserted under the 2005 agreement and the 2007 agreement.                 Because the

complaint named Wittenberg and Courtney as plaintiffs and they sued as

guarantors and Union Bank incurred legal expenses "in connection with the

enforcement of this Guaranty," we hold that despite the payment of the principal

debt, the contract language makes Wittenberg and Courtney jointly and severally

liable for attorney fees.

       However, in a contract dispute, a court only awards attorney fees to a

prevailing party.51 Because the trial court did not resolve the issue of improper

accounting, the prevailing party cannot be determined yet. The trial court

prematurely awarded attorney fees to Union Bank. As this court suggested to

counsel at oral argument, the amounts at issue strongly suggest the ultimate

outcome of this issue.      But Black Diamond has the right to have this issue

decided by the trial court after resolution of its accounting claim. On remand, the

trial court shall also have the authority to award attorney fees on appeal to the

ultimately prevailing party, if any.

                                       CONCLUSION


       Black Diamond timely filed its appeal on November 5, 2013, because the

trial court did not decide all claims of all parties until it determined the guarantors'

      51 RCW 4.84.330; Wachovia SBA Lending. Inc. v. Kraft. 165 Wn.2d 481,
489, 200 P.3d 683 (2009).
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joint and several liability on October 17, 2013.    Because the alleged financing

agreement omits material terms and does not satisfy the requirements of 12

U.S.C. § 1823(e), Union Bank has no contractual obligation to extend permanent

financing to Black Diamond.     But because Black Diamond put Union Bank on

notice of its improper accounting claim and the court did not consider the merits

of the claim, the trial court erroneously dismissed it. As a result, no party has yet

prevailed in this case, and any award of attorney fees is premature. We affirm in

part, reverse in part, and remand for proceedings consistent with this opinion.




                                                      /-ZZsoA,
WE CONCUR:




      *Cs(f^\c^} L :>




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