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                                                                       This opinion was filed for record
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                                                                            ~~
........ COURT, STATEOFWMI.Gftll

-L:~ o3 2014 I
~~~                                                                         Ronaki     R.   carper.
                                                                             Supreme Court Clerk

               IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 LEY A REKHTER, an individual receiving Medicaid benefits         )
 under the Community Options Program Entry System (COPES),        )        No. 86822-1
 and ALEX ZIMMERMAN, an aggrieved live-in care provider           )
 for an individual in the COPES program, LISA R. FUCHSER,         )          En Bane
 an individual receiving Medicaid benefits under the Medicaid     )
 Personal care (MPC) program, and JUDITH L. ALBERTS, a            )
 live-in care provider for an individual in the MPC program, and  )
 PAUL RACCI-IETA, a live-in care provider for an individual in    )
 the COPES program, and others similarly situated,                )
                                                                  )
                 Respondents/Cross-Appellants,                    )
                                                                  )
         v.                                                       )
                                                                  )
 STATE OF WASHINGTON, DEPARTMENT OF SOCIAL                        )
 AND HEALTH SERVICES, a Washington State Agency,                  )
 ROBIN ARNOLD-WILLIAMS -(individual and official                  )
 capacities), Secretary ofDSHS, DENNIS BRADDOCK                   )
 (individual and official capacities), former Secretary ofDSI-IS, )
 KATHY LEITCH (individual and official capacities), Assistant )
 Secretary for the Aging and Disability Services Administration, )
 Jane and John Doe Nos. 1 thru 100,                               )
                                                                  )
                 Appellants/Cross-Respondents.                    )
 ________________________________________)
 NATASHA PFAFF, by and through her guardians, Maureen              )
 and Donald Pfaff, individually and on behalf of all other         )
 similarly situated persons,                                       )
                                                                   )
                  Respondent/Cross-Appellant,                      )
                                                                   )
          v.                                                       )
                                                                   )
 ROBIN ARNOLD-WILLIAMS, in her official capacity as the            )
 Secretary ofWASHINGTON STATE DEPARTMENT OF                        )
 SOCIAL AND HEALTH SERVICES, and the WASHINGTON                    )
 STATE DEPARTMENT OF SOCIAL AND HEALTH                             )
 SERVICES,                                                         )
                                                                   )
                  Appellants/Cross-Respondents.                    )
 _________________________________________)
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


SERVICE EMPLOYEES INTERNATIONAL UNION 775, on )
behalf of the individual providers it represents, and CINDY )
WEENS, individually and on behalf of all other similarly    )
situated persons,                                           )
                                                            )
                Respondents/Cross-Appellants,               )
                                                            )
        v.                                                  )
                                                            )
ROBIN ARNOLD-WILLIAMS, in her official capacity as the )
Secretary of WASHINGTON STATE DEPARTMENT OF                 )
SOCIAL AND HEALTH SERVICES, and the WASHINGTON )
STATE DEPARTMENT OF SOCIAL AND HEALTH                       )
SERVICES,                                                   )
                                                            )
                Appellants/Cross-Respondents.               )
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _) Filed                             _A_PR_0_3_2_0_14_

        OWENS, J. -- In this class action case, a jury found that the Department of

Social and Health Services (DSHS) violated the implied duty of good faith and fair

dealing in its contracts with individual providers who live with the DSHS clients for

whom they provide care. The jury found that the providers incurred $57,123,794.50

in damages, and the judge awarded an additional $38,652,219.85 in interest. The

DSHS clients who lived with their providers also filed a class action suit, but the

judge did not allow them to recover any damages. We uphold the jury's verdict for

the providers, the judge's decision to disallow the clients from recovering damages,

and the dismissal of the providers' wage claims, because all comply with Washington

law. However, we reverse the judge's award of prejudgment interest because the

damages could not be determined with certainty.




                                            2
Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


                                           FACTS

       DSHS provides public assistance for in-home care for certain individuals with

disabilities, referred to herein as "clients." To provide this assistance, DSHS contracts

with individual care providers to perform necessary services for clients. In their

contracts with DSHS, the providers agree to assist with those personal care services

and household tasks included in the client's "service plan." The providers also agree

that DSHS will pay only for authorized services in the client's service plan and that

their monthly payment will not exceed the amount authorized in the service plan. The

contracts explicitly incorporate by reference the service plan of the particular client,

but because the contracts are signed before the service plan is created, key terms such

as tasks to be performed and authorized hours are left undefined until long after the

contract is executed.

       Beginning in 2003, DSHS implemented the Comprehensive Assessment and

Reporting Evaluation (CARE) process to determine how many hours of paid

assistance a client was eligible to receive. Part of the CARE process was the shared

living rule, which automatically reduced assistance for in-home care by 15 percent for

clients that live with their providers. The rationale for the shared living rule was that

the providers would already be performing certain household tasks (shopping,

laundry, housekeeping, meal preparation, and wood supply services) even if they were

not providing in-home care for a person with a disability. The shared living rule



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Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


created an irrebuttable presumption that clients living with their providers needed 15

percent less paid assistance, even if those clients did need assistance with those

household tasks.

       When DSHS reduced the authorized hours of support for a client pursuant to

the shared living rule, it did not change or reduce the service plan's list of services the

provider was required to perform. Indeed, even when a service plan specifically

described a client's need for help with shopping or cooking as "[t]otal dependence"

and instructed the caregiver to complete such tasks, DSHS still eliminated payment

for such household tasks because the client lived with the provider. See Clerk's

Papers (CP) at 3982-84. As a result, live-in providers were required by contract to

perform necessary services without compensation. The structure of the agreements

also resulted in DSHS requiring live-in providers to perform the same services as live-

out providers for less compensation.

       In 2004, three affected clients filed administrative appeals of determinations

made pursuant to the shared living rule. The administrative law judges dismissed the

appeals because they did not have authority to review the validity of agency rules.

The three affected clients sought review in the courts, and in 2005, two trial courts

held that the shared living rule was invalid under federal law. Those decisions were

stayed pending a consolidated appeal, and in May 2007, this court affirmed the trial

courts and found the rule violated federal law that required parity for individuals on



                                             4
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


Medicaid. Jenkins v. Dep 't ofSoc. & Health Servs., 160 Wn.2d 287, 290-91, 157

P.3d 388 (2007). Throughout this process, DSHS continued to apply the shared living

rule. DSHS ultimately repealed the shared living rule effective June 29, 2007, and

began reassessing affected clients-a process that was not completed until June 2008.

        Shortly after Jenkins, separate class action lawsuits were filed on behalf of

clients and providers affected by the shared living rule between April 2003 and June

2008. The lawsuits were consolidated in 2009. Prior to trial, the trial judge granted

summary judgment to DSHS on the providers' claims that DSHS (1) wrongfully

withheld wages in violation ofRCW 49.52.050 and .070 and (2) failed to pay the

providers for all hours worked, in violation of the Washington Minimum Wage Act

(MWA), chapter 49.46 RCW.

        At trial, the jury found that DSHS "breached an implied duty of good faith and

fair dealing with the Providers as to [DSHS' s] performance of a specific term in the

Individual Provider Contracts." CP at 2985. The jury found that the providers

incurred $57,123,794.50 in damages. The trial judge ruled that prejudgment interest

applied to the jury's verdict for the providers, which amounted to $3 8,652,219.85.

        The jury was not instructed to render an advisory verdict on the clients' claim,

but the judge accorded the jury verdict on the providers' claim substantial weight in

considering the clients' claim. The trial judge then found that the clients "suffered the

same damages as the Provider Class" but that they should not be awarded a money



                                             5
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


judgment because "the Client Class actually received the Rule related services and

thus it sues to pass damages through to the Provider Class." CP at 34 73-7 5.

       DSHS appealed both the $57.12 millionjudgment and the award of$38.65

million in prejudgment interest. The clients and providers cross appealed, arguing

that the clients should have been awarded damages. We granted direct review.

                                    ISSUES PRESENTED

        1. As a matter of law, could the jury find that DSHS violated an implied duty

of good faith and fair dealing?

        2. Do the jury instructions accurately reflect the law related to the implied duty

of good faith and fair dealing?

        3. Did the trial judge correctly disallow compensation to clients in light of the

judgment for providers?

        4. Did the trial judge correctly grant summary judgment to DSHS on the

providers' wage claims?

        5. Was the trial judge's award of prejudgment interest proper?

        6. Should any party receive attorney fees?

                                            ANALYSIS

    1. The Jury's Finding That DSHS Violated an Implied Duty of Good Faith and
       Fair Dealing Is Consistent with Washington Law

        The jury found that when DSHS implemented the shared living rule and

automatically reduced the hours it would authorize for live-in providers, it breached


                                               6
Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


an implied duty of good faith and fair dealing as to its performance of a specific term

in its provider contracts. DSHS claims that the jury's finding fails as a matter of law

because it (1) contradicts the jury's other finding that DSHS did not breach a contract

term; (2) adds a "free-floating obligation of good faith and fair dealing" to its

contracts, Appellants' Opening Br. at 5, 29-30; and (3) enforces duties arising from a

statute and not the terms of the contract. 1 Because the issue is whether the jury award

is prohibited as a matter of law, our review is de novo. For the reasons described

below, DSHS' s arguments fail.

       A. The Duty of Good Faith and Fair Dealing Can Arise Even When There Is
          No Breach of an Express Contract Term

       DSHS argues that as a matter of law, the jury cannot find a violation of the duty

of good faith and fair dealing without first finding a violation of a contractual term.

We disagree. As the Seventh Circuit has said, "[i]t is, of course, possible to breach

the implied duty of good faith even while fulfilling all of the terms of the written

contract." Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 766 (7th Cir.

2010), cert. denied, 131 S. Ct. 1784 (2011). Similarly, the California Supreme Court

observed that the "breach of a specific provision of the contract is not a necessary




1
 The providers claim that DSHS is challenging the evidentiary basis for the jury's verdict
and thus is barred from bringing this challenge because it failed to file a postverdict CR
50(b) or CR 59 motion. However, DSHS is not challenging the evidentiary basis for the
verdict-it is challenging whether the law provides a basis for relief. Consequently, it is
not barred from filing this appeal.

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Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


prerequisite [to a breach of good faith and fair dealing claim]. Were it otherwise, the

covenant would have no practical meaning, for any breach thereof would necessarily

involve breach of some other term of the contract." Carma Developers (Cal.), Inc. v.

Marathon Dev. Cal., Inc., 2 Cal. 4th 342, 373, 826 P.2d 710, 6 Cal. Rptr. 2d 467

(1992) (citation omitted). The Seventh Circuit's and California Supreme Court's

reasoning applies here. If DSHS' s assertion were true, there could never be a

violation of a duty of good faith and fair dealing unless there were also a violation of

an express contract term. Such a requirement would render the good faith and fair

dealing doctrine superfluous, and thus DSHS' s claim is incorrect.

       B. The Duty of Good Faith and Fair Dealing Arises When One Party Has
          Discretionary Authority To Determine a Future Contract Term

       DSHS argues that the jury's finding adds a "free-floating obligation of good

faith and fair dealing" to its contracts. Appellants' Opening Br. at 5, 29-30.

However, as described below, the duty of good faith and fair dealing arises when one

party has discretionary authority to determine a future contract term. Here, the

contracts gave DSHS the discretionary authority to pay providers for authorized hours

pursuant to the service plans, which were developed at the discretion ofDSHS after

the contracts were finalized. Thus, the duty of good faith and fair dealing arose in

connection with those contract terms, and the jury found that DSHS breached that

duty as to the performance of a specific contractual term. As a result, DSHS 's claim




                                            8
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


that the jury added a "free-floating obligation of good faith and fair dealing" is

incorrect.

       Under Washington law, "[t]here is in every contract an implied duty of good

faith and fair dealing" that "obligates the parties to cooperate with each other so that

each may obtain the full benefit of performance." Badgett v. Sec. State Bank, 116

Wn.2d 563, 569, 807 P.2d 356 (1991). DSHS and the providers agree that the implied

covenant of good faith and fair dealing cannot add or contradict express contract

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

Instead, "the duty [of good faith and fair dealing] arises only in connection with terms

agreed to by the parties." !d.; Johnson v. Yousoofian, 84 Wn. App. 755, 762, 930 P.2d

921 ( 1996) ("The implied duty of good faith is derivative, in that it applies to the

performance of specific contract obligations. If there is no contractual duty, there is

nothing that must be performed in good faith." (citations omitted)).

        In particular, the duty of good faith and fair dealing arises "when the contract

gives one party discretionary authority to determine a contract term." Goodyear Tire

& Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732, 738, 935 P.2d 628 (1997);

see Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995) ("The duty of good faith

and fair dealing applies when one party has discretionary authority to determine

certain terms of the contract, such as quantity, price, or time."). When asked to apply

Washington law in this area, the Ninth Circuit concluded that "[g]ood faith limits the



                                             9
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


authority of a party retaining discretion to interpret contract terms; it does not provide

a blank check for that party to define terms however it chooses." Scribner v.

Worldcom, Inc., 249 F.3d 902, 910 (9th Cir. 2001).

       In this case, the contract gave DSHS discretion over future terms. DSHS has a

specific contractual obligation to determine and pay providers for hours authorized in

the service plans. DSHS prepared the service plans after the contract was formed with

the providers and after the providers began performing services. Thus, at the time that

DSHS and an individual provider executed a provider contract, neither DSHS nor the

provider knew what services would be needed by the clients or how much would be

paid to the providers. These provisions give DSHS the discretion to set a future

contract term: the quantity of hours and the types of services for which providers will

be compensated.

        The dissent contends that DSHS does not have discretion to determine the

quantity of hours for which providers will be compensated because that amount is

determined by the CARE process, and DSHS does not have discretion to deviate from

the amount determined through the CARE process. This ignores the fact that DSHS

created the CARE process using its discretion. While there were some statutory

limitations placed on DSHS, those statutes did not prescribe how DSHS was to

determine the hours of care for which a DSHS client is eligible. Instead, DSHS had

ample discretion to design the process that set the contractual term.



                                             10
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


       The dissent acknowledges that Aventa Learning, Inc. v. K12, Inc., 830 F. Supp.

2d 1083 (W.D. Wash 2011), came to the same conclusion that we do: that the implied

duty of good faith and fair dealing applies when one party has discretion to select the

formula or method used to calculate a particular value in the contract. But the dissent

essentially argues that because DSHS has multiple roles as a government agency, it is

exempt from the duty of good faith and fair dealing. This is an artificial distinction.

It does not acknowledge DSHS 's role in both negotiating the contract and using its

discretion to determine a key term of the contract by designing the CARE process that

controlled the number of hours authorized as part of the client's service plan. A head

that wears two hats is nonetheless only one head. Exempting DSHS from this duty

because it is a government agency is not supported by our precedent, and we decline

to adopt such an exemption without justification.

        The dissent contends that both parties were "bound by the hours authorized by

the service plan," Dissent at 7-8 (emphasis omitted), and thus DSHS did not have

discretion over the hours authorized. But it is unreasonable to conclude that DSHS

was simply "bound" by the service plan when that plan was created using a formula of

DSHS's own design. In this case, DSHS used its discretion to implement a new rule

that eliminated a certain amount of compensation for those service providers that lived

with the clients. We do not see how one can come to the conclusion that DSHS had

no discretion in determining the number of hours of care for which a client is eligible



                                            11
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


when DSHS was the entity that created the system-using its discretion-that

determined those hours.

       The dissent argues that DSHS did not have discretion because certain

procedural steps would have to be taken for it to change the CARE process. But the

existence of such procedural requirements simply means that DSHS did not have

unconditional authority to change the process. While governmental agencies have

some procedural limitations on their discretion, it does not follow that substantively

they have no discretion. Such a conclusion is overly formalistic and ignores the on-

the-ground reality that DSHS was the party that had control over the formula for

authorized service hours.

        As described above, when a party has discretion over a future contract term, it

has an implied duty of good faith and fair dealing in setting and performing that

contractual term. Here, the contract provided that service providers would be paid for

the hours authorized in the service plan pursuant to the CARE process. DSHS was the

party responsible for determining the hours that would be authorized because it

designed the CARE process that produced that determination. When DSHS exercised

discretion to create the systems that produced the service plans and reduce the hours

those plans authorized for live-in providers, its actions were governed by an implied

covenant of good faith, and the jury found that DSHS violated that covenant.




                                            12
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


       In light of the jury's finding that DSHS breached the duty of good faith and fair

dealing as to a specific term in the contract, DSHS' s reliance on cases where the duty

of good faith did not apply because there was no contract term is misplaced. See, e.g.,

Badgett, 116 Wn.2d at 570-72 (holding that"[ w]hile the parties may choose to

renegotiate their agreement, they are under no good faith obligation to do so");

Yousoofian, 84 Wn. App. at 762-63 (holding that the duty of good faith did not apply

to a landlord's refusal to consent to a lease agreement when the contract gave the

landlord the unconditional right to do so); Seattle-First Nat' l Bank v. Westwood

Lumber, Inc., 65 Wn. App. 811, 820, 822-23, 829 P.2d 1152 (1992) (holding that the

trial court erred by imposing a duty of good faith on Seattle-First in relation to a

course of dealing when that course of dealing conflicted with the express terms of the

contract). DSHS relies heavily on Monotype Corp. PLC v. International Typeface

Corp., but in that case the jury found that the parties did not intend for the contract to

prohibit certain conduct, and therefore it would be redundant to ask whether that

conduct breached an implied covenant of good faith. 43 F.3d 443, 452-53 (9th Cir.

1994 ). None of these cases concern a contract like this one, where one party retained

discretionary authority to determine a future contract term.

        C. A Statutory Violation Can Constitute a Breach ofDuty of Good Faith and
           Fair Dealing

        DSHS argues that even if there was a duty of good faith and fair dealing, no

breach could be found because that would depend on enforcing external, statutory


                                             13
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


duties. DSHS argues that Medicaid comparability is a statutory duty owed to clients,

not a contractual duty owed to providers. DSHS contends that because the providers'

legal basis for relief is created by statute, it cannot be enforced as an implied

contractual duty.

       DSHS confuses what is violated with how it is violated. While DSHS is correct

that a breach of a duty imposed by statute does not create an action on contract,

Boguch v. Landover Corp., 153 Wn. App. 595, 615, 224 P.3d 795 (2009), the duty

that providers seek to enforce here is a contractual duty around a contractual term.

The contractual term is the determination of the hours of care for which each client is

eligible, and DSHS had discretion in its performance of that term because it created

the CARE process that made that determination. Therefore, DSHS had an implied

duty of good faith and fair dealing in its performance of that term. Here, the jury

found that DSHS violated that contractual duty when it decided to automatically

reduce the payments for in-home care providers. Furthermore, excusing breaches of

the duty of good faith when those breaches are also statutory violations would neither

protect the reasonable expectations of contracting parties nor encourage parties to

obey the law.

        Because we uphold the jury's verdict for the providers, we need not analyze the

providers' alternative theories of recovery.




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Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


    2. The Jury Instructions Accurately Reflected the Law Related to the Implied Duty
       of Good Faith and Fair Dealing

       DSHS claims that jury instructions 18 and 19 misstated the law related to the

implied duty of good faith and fair dealing and that the judge abused his discretion by

failing to give its proposed jury instructions 35, 35A, and 25A. "Jury instructions are

sufficient when they allow counsel to argue their theory of the case, are not

misleading, and when read as a whole properly inform the trier of fact of the

applicable law." Bodin v. City ofStanwood, 130 Wn.2d 726, 732, 927 P.2d 240

(1996). Because the jury instructions in this case, when read as a whole, accurately

state the law, are not misleading, and allow both sides to argue their theory of the

case, there is no error. 2

       DSHS first claims that instruction 19 required the jury to apply the duty of

good faith and fair dealing even if the shared living rule was not part of the contract.

Appellants' Opening Br. at 43-44. DSHS points to the first sentence of instruction 19:



2
  The respondents claim that DSHS' s exceptions to the jury instructions were not specific
enough at trial to allow the trial judge to fully understand their legal claims, and thus
DSHS failed to preserve its appeal. We disagree. After discussing each of the potential
jury instructions, DSHS attempted to describe each of their exceptions in detail on the
record and the trial judge responded, "And let me add here that we've had extensive
discussions about these instructions. I believe I understand your positions. At this point I
am not going to change the instructions that I'm going to give. And all of your
arguments on why they are incorrect are preserved in the record. You don't need to put
them in the record now; just make clear that you are excepting to them so that you've got
an appealable issue." 14 Verbatim Report of Proceedings at 2602. On this record, we do
not see how we could conclude that DSHS did not properly describe their exceptions at
trial.

                                             15
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


              If you find that reduction of authorized hours by application of the
       Shared Living Rule was not a part of the provider contract, you must
       consider the claim that the department violated the duty of good faith
       and fair dealing in applying the SLR.

CP at 2980. However, that introductory sentence merely indicated that if the jury

found that DSHS 's application of the shared living rule did not violate an express term

of the contract, the jury must then turn to the question of whether the application of

the rule violated the duty of good faith and fair dealing. The jury instructions overall

make it quite clear that the duty of good faith and fair dealing applies only in relation

to the performance of specific terms of the contract. See, e.g., CP at 2979 (Instruction

18 states, "[The] duty of good faith and fair dealing ... exists only in relation to the

performance of specific terms in the contract and cannot be used to contradict contract

terms or require a party to accept new or different contract obligations."). Indeed, the

question to the jury on the verdict form specifically states, "Do you find that [DSHS]

breached an implied duty of good faith and fair dealing with the Providers as to

[DSHS 's] performance of a specific term in the Individual Provider Contracts?" CP

at 2985 (emphasis added). Taken in context, instruction 19 is not misleading.

        In a very similar claim, DSHS claims another sentence in instruction 19 fails to

indicate that the duty of good faith and fair dealing arises only in relation to the

performance of a specific contract term. The relevant sentence states:

        To establish breach of the implied duty of good faith and fair dealing,
        providers must prove that in reducing a client's authorized hours by
        application of the SLR, the department acted in a manner that prevented


                                             16
Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


       the provider from attaining his or her reasonable expectations under the
       contract.

CP at 2980. But this sentence does not attempt to list all of the requirements that

providers must prove-it is simply listing one of the elements that the providers must

prove in order to prevail on their claim. As noted above, the rest of the instructions

describe the other elements of a breach of good faith and fair dealing claim, including

that the duty arises only in relation to the performance of specific terms of the

contract. See CP at 2980, 2985. "It has long been the rule of this court that individual

instructions may not be singled out for consideration without reference to the entire

set of instructions which were given." Nelson v. Mueller, 85 Wn.2d 234, 238, 533

P.2d 383 (1975). Looking beyond individual sentences, which can state only one

portion of a rule, the jury instructions as a whole accurately reflect the law.

       Next, DSHS claims that instruction 19 was incorrect when it indicated that ( 1)

if the contract gives the department unconditional authority to determine a contract

term there is no duty of good faith and fair dealing but (2) if the contract does not give

unconditional authority "or is silent as to the department's authority," the jury must

determine whether the duty has been breached. CP at 2980. DSHS does not actually

argue that this inaccurately reflects the law and does not point to any cases that

contradict this statement of the law; instead, DSHS essentially challenges how the

jury applied the law to this case. In fact, the instructions accurately reflect the case

law in this area: the duty of good faith and fair dealing arises when a contract gives a


                                             17
Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


party discretionary authority to determine a contract term. See Goodyear Tire, 86 Wn.

App. at 738. However, if a contract gives a party unconditional authority to determine

a term, there is no duty of good faith and fair dealing. See Yousoofian, 84 Wn. App.

at 762-63 (where landlord had an "absolute privilege" to refuse to consent to a tenant's

lease assignment, there was no contractual duty to which the duty of good faith

attached). Appellants do not show how this instruction constituted error.

       Finally, DSHS claims that the trial court abused its discretion when it declined

to give proposed instructions 25A, 35, and 35A. Instruction 25A stated that the

CARE tool and federal regulations were terms of the provider contract merely because

the service plans and federal regulations are incorporated into the contract by

reference. Instruction 35 addressed the same issues as instructions 18 and 19 but did

not include certain sentences that DSHS found problematic, as described in the

paragraphs above. Instruction 35A stated that the provider contracts did not include a

duty to disclose providers of the impact of the shared living rule, and thus the failure

to disclose did not constitute a breach of contract or of the implied duty of good faith

and fair dealing.

        A trial judge's decision not to issue a jury instruction is reviewed for abuse of

discretion. Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996). When this

court reviews jury instructions, it looks to the jury instructions as a whole, with the

primary purpose of allowing both parties to fairly state their case. See Gammon v.



                                             18
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822~1


Clark Equip. Co., 104 Wn.2d 613,        616~18,   707 P.2d 685 (1985) (evaluating whether

excluding a particular jury instruction was error when reading the jury instructions as

a whole rather than examining the missing jury instruction standing alone). Here,

DSHS does not show how the trial judge's decision against these instructions

constituted an abuse of discretion. As a whole, the jury instructions allowed both

sides to argue their theory of the case, accurately stated the law, and were not

misleading; as a result, we see no basis for overturning the jury verdict.

    3. The Trial Judge Correctly Disallowed Compensation to Clients in Light of the
       Judgment for Providers

       In their cross appeal, the clients challenge the trial judge's ruling that they are

not entitled to judgment for damages. The trial judge reasoned that the client class

should not be awarded a money judgment because the clients sued to pass damages

through to the provider class. Since judgment was entered for the providers, judgment

could not also be entered for the clients to pass through to the providers. In

accordance with this court's policy of preventing double recovery, we affirm the trial

judge's ruling.

        Although the parties cite no case law regarding this precise type of double

recovery-judgment for both contractors that were not paid for providing services to

clients and for the clients themselves-Washington courts have consistently

implemented rules designed to prevent double recoveries. See Lange v. Town of

Woodway, 79 Wn.2d 45, 49, 483 P.2d 116 (1971) (adopting the election of remedies


                                                  19
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


doctrine for "the sole purpose of preventing double redress for a single wrong"); Rice

v. Janovich, 109 Wn.2d 48, 61-62, 742 P.2d 1230 (1987) (holding that the trial court

erred by giving jury instructions for both assault and outrage for the same conduct

because it allowed for the possibility of double recovery); Sherry v. Fin. Indem. Co.,

160 Wn.2d 611,621-22, 160 P.3d 31 (2007) (discussing rules designed to prevent

double recovery in the context of an underinsured motorist).

       In this case, the trial judge ruled that

       the Client Class is not entitled to judgment for the damages because
       judgment for that amount will be entered in favor of the Provider Class
       and only one recovery can be permitted. The presence of a judgment
       entered in favor of the Provider Class precludes entry of a judgment in
       favor of [the] Client Class.

CP at 3475. Essentially, the trial judge reasoned that the two lawsuits were alternative

theories of recovery and that only one should be allowed. See id. ("the Client Class

actually received the Rule related services and thus it sues to pass damages through to

the Provider Class"). The clients suggested that they could receive an award offset by

the judgment for the providers. Presumably, the purpose of such an offset award

would be to allow the clients to recover attorney fees as the prevailing party. See Part

5, infra. The trial judge declined that option, noting that the ruling for the clients

"must account for and acknowledge" the final judgment entered for the providers. CP

at 3475. He further reasoned that "the clients cannot receive directly the monetary

payment for services that were wrongfully withheld." CP at 3476.



                                              20
Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


       We affirm the trial judge's reasoning. Although the parties chose to bring

claims resting on alternative theories of recovery, the judge found that the providers

and the clients suffered the same damages. As a result, entering judgments for both

classes would amount to a double recovery, a result courts seek to avoid. The clients

sought damages in order to compensate providers for the services they performed

without compensation-compensation the providers received in the form of damages

for their contract claim. Once judgment was entered for the providers, the trial judge

appropriately disallowed a monetary judgment for the clients under their alternative

theory of recovery.

       The clients point to a seemingly inconsistent finding of fact from the trial

judge: "The court finds that the Client Class suffered the same damages as the

Provider Class, $57, 123,794.50." CP at 3473-74. However, the court went on to

clarify that "[t]he Client Class has proved the same damages claimed by the Provider

Class claim, except that the Client Class actually received the Rule related services."

CP at 3475 (emphasis added). Thus the trial judge's earlier finding does not

undermine his legal conclusion that he could not enter judgment for both classes

because it would amount to double recovery.

        Because we affirm the trial judge's ruling that the clients are not entitled to

recovery, we do not reach DSHS 's other arguments as to why the clients are barred

from recovery.



                                             21
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


   4. The Trial Judge Correctly Granted Summary Judgment to DSHS on the
      Providers' Wage Claims

       Prior to trial, the judge granted summary judgment to DSHS on the providers'

claims that DSHS had (1) wrongfully withheld wages in violation ofRCW 49.52.050

and .070 and (2) failed to pay the providers for all hours worked in violation of the

MWA. The providers cross appealed this ruling, arguing that ( 1) DSHS is the payroll

agent for the clients and thus has liability under RCW 49.52.050 and .070 and (2)

DSHS had forced providers to perform unpaid, off-the-clock work, thus violating the

MWA. We affirm the trial judge.

       First, while RCW 49.52.050 and .070 do apply to agents of employers, the

providers have not shown that DSHS is an agent for the client. The providers contend

that an entity is an agent if it "has control over the funds or the decision to pay" based

on Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514,522,22 P.3d 795 (2001).

Br. ofResp'ts Rekhter et al. at 76. But that is not what Ellerman holds. In Ellerman,

we held that in order to prevail on a wage claim, the employee must show that the

party withholding the wages was both an agent and had control over the payment of

wages. 143 Wn.2d at 522-23 ("the statutes in question require more than the

establishment of an agency relationship. Rather, there must be a showing that an

agent had some control over the payment of wages before personal liability attaches to

the agent." (emphasis added)). And here, the providers have not shown any agency

relationship under the common law.


                                            22
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


       Second, the MWA applies to the employer-employee relationship, which does

not apply to DSHS 's relationship with the providers. The MWA defines

"'[e]mployer"' as "any person or group of persons acting directly or indirectly in the

interest of an employer in relation to an employee." RCW 49.46.01 0(4). The

providers argue that DSHS was acting in the interest of an employer because it

controlled payment to the providers. However, as discussed above, DSHS's role as a

payor of Medicaid funds did not create an agency relationship between the client and

DSHS. In addition, under state law, the state is considered the employer of the

providers "[s]olely for the purposes of collective bargaining." RCW 74.39A.270(1).

Furthermore, the contract between DSHS and the providers expressly states that the

contractor is not "an officer, employee, or agent ofDSHS" and that the provider

"agrees not to claim for the [provider] any rights, privileges or benefits which would

accrue to an employee of the State of Washington." Ex. 1, at 5. The trial judge

correctly granted summary judgment to DSHS on the providers' wage claims.

    5. The Trial Judge's Award ofPrejudgment Interest Was Improper

        DSHS appeals the trial court's award of prejudgment interest, contending that

the damages could not have been calculated with certainty prior to the entry of

judgment. Prejudgment interest is available "( 1) when an amount claimed is

 'liquidated' or (2) when the amount of an 'unliquidated' claim is for an amount due

upon a specific contract for the payment of money and the amount due is determinable



                                            23
Rekhter v. Dep 't ofSoc. & Health Servs.
No. 86822-1


by computation with reference to a fixed standard contained in the contract, without

reliance on opinion or discretion." Prier v. Refrigeration Eng'g Co., 74 Wn.2d 25, 32,

442 P.2d 621 (1968). A claim is liquidated "where the evidence furnishes data which,

if believed, makes it possible to compute the amount with exactness, without reliance

on opinion or discretion." !d. (emphasis added); see 1 DAN B. DOBBS, DOBBS LAw

OF REMEDIES § 3 .6( 1), at 3 3 7 (2d ed. 1993) (citing Hansen v. Rothaus, 107 Wn.2d

468, 472-73, 730 P.2d 662 (1986)). The rationale for this rule is that it would be

unfair to hold a defendant accountable for interest on an amount that is unquantifiable

and unforeseeable prior to a jury verdict. A defendant cannot stop the running of

interest by paying the plaintiff if that defendant does not know the amount due. See

DOBBS, supra, at 3 51-52.

       The damages in this case are the difference between what providers were paid

under the shared living rule and what providers should have been paid under the

individualized CARE formula. However, the CARE formula requires individualized

data to be entered in order to determine the number of paid hours, and such data was

not entered or collected during the times at issue in this case. Thus, at trial the jury

heard from various experts who testified as to how to estimate what data would have

been entered into the CARE formula without the shared living rule.

        DSHS argues that because the individualized data called for under the CARE

assessment was not collected during the period of the shared living rule, the



                                            24
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


authorized hours cannot be determined with exactness. If the authorized hours for

each client cannot be determined with exactness, then the provider class's damages

cannot be determined exactly and prejudgment interest is not allowed. We agree.

While the mathematical methods of estimation provided by the experts might be

statistically sophisticated, ultimately they provided only estimates. Because the

relevant data was never actually entered or collected, there was no way for the jury to

determine how many uncompensated hours were worked and thus what the exact

amount of damages was. Since the damages are neither liquidated nor ascertainable,

prejudgment interest is unavailable.

    6. There Is No Basis on Which to Award Attorney Fees to Any Party

       DSHS has not requested attorney fees nor appealed any trial court decisions on

attorney fees and costs. Thus, this court has no basis for awarding attorney fees to

DSHS.

        The providers argue that they should be awarded attorney fees pursuant to

RCW 49.52.070. However, that statute applies to employers who fail to pay wages.

The providers prevailed on a contract claim and not on their wage claims. As a result,

the providers have provided no statutory basis for attorney fees.

        Finally, the clients argue that they should be awarded attorney fees under the

policy underlying RCW 74.08.080(3). That statute provides for attorney fees for a

DSHS client or applicant if "the superior court, the court of appeals, or the supreme



                                            25
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1


court renders a decision in favor of the appellant." RCW 74.08.080(3). The purpose

of that policy is both punitive and deterrent, as it is "designed to encourage the agency

to render careful and correct decisions at the initial stage, under penalty of having to

pay the costs of correcting its mistakes when its decisions are overturned on appellate

review." Whitehead v. Dep 't ofSoc. & Health Servs., 92 Wn.2d 265, 269-70, 595

P .2d 926 (1979). However, as discussed above, the trial judge concluded that "[t]he

Client Class has proved the same damages claimed by the Provider Class claim,

except that the Client Class actually received the Rule related services." CP at 3475.

The trial judge then entered judgment for the provider class but not the client class.

Since the trial court did not enter a decision in favor of appellants, they do not qualify

for attorney fees under the statute.

                                            CONCLUSION

        After a lengthy trial, a jury found that DSHS violated its duty of good faith and

fair dealing in the performance of a specific term of its contracts with providers. This

verdict accords with relevant law and we affirm it. We also affirm the trial judge's

ruling that the clients cannot recover because they sued only to pass the damages

through to the providers, and the decision to grant summary judgment to DSHS on the

providers' wage claims. However, we reverse the trial judge's award of prejudgment

interest because the damages could not be determined with certainty.




                                                26
Rekhter v. Dep 't of Soc. & Health Servs.
No. 86822-1




WE CONCUR:




                                            27
Rekhter v. State
Concurrence/Dissent by C. Johnson, J.




                                     No. 86822-1

      C. JOHNSON, J. (concurring/dissenting)-While I concur in upholding the

jury's verdict for the provider class, I dissent as to the reversal of the trial court's

award of prejudgment interest. A warding prejudgment interest on the contract

damages due to the provider class in this case is consistent with Washington case

law and its underlying policy. I would therefore affirm the award.

       The lead opinion correctly states the rule on when prejudgment interest is

warranted but misapplies it, failing to adhere to our prior cases. The rule is that

prejudgment interest is available

       (1) when an amount claimed is "liquidated" or (2) when the amount of
       an "unliquidated" claim is for an amount due upon a specific contract
       for the payment of money and the amount due is determinable by
       computation with reference to a fixed standard contained in the
       contract, without reliance on opinion or discretion.

Prier v. Refrigeration Eng'g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968). A claim

is. liquidated "where the evidence furnishes data which, if believed, makes it
     Rekhter v. State
     C. Johnson, J., concurring/dissenting


     possible to compute the amount with exactness, without reliance on opinion or

     discretion." Prier, 74 Wn.2d at 32; see 1 DAN B. DOBBS, LAW OF REMEDIES §

     3.6(1), at 337 (2d ed. 1993) (citing Hansen v. Rothaus, 107 Wn.2d 468, 472-73,

     730 P.2d 662 (1986)).

            This case is remarkably similar to Stevens v. Brink's Home Security, Inc.,

:;   162 Wn.2d 42, 169 P.3d 473 (2007), where we upheld the prejudgment interest

     awarded to the plaintiffs in that case. In Stevens, security company technicians

     brought a class action to recover overtime compensation for the drive times spent

     commuting to the first and last jobsites, for which the technicians had neither kept

     t~me   records nor been paid. At trial, an expert calculated the drive times using a

     software p.r.ogram called "Mappoint." Brink's contended that this data was

     insufficient to constitute a liquidated claim entitled to prejudgment interest because

     it required the jury to rely on opinion or discretion. We disagreed and concluded

     that prejudgment interest is appropriate where the evidence furnishes objective

     data that, . if believed, . makes it possible to compute the amount owed with

     ~xactness.   We held that the technicians' damages were liquidated and subject to

     prejudgment interest, reasoning that the jury could believe the drive times

     calculated with Mappoint and use it along with the technicians' actual wages to

     calcu~~te   dat?ages. The samere(lsoning should apply here.


                                               2
Rekhter v. State
C. Johnson, J., concurring/dissenting


            As in Stevens, the providers' damages in this case were capable of being

determined with exactness by using an hours worked times hourly rate calculation.
 ···.., .

Here, both parties used reliable mathematical calculations to determine the number

of unpaid hours that the Department of Social and Health Services (DSHS)

wrongfully withheld from the providers, much like the computer algorithm and

statistical analysis used to calculate the hours that went unpaid in Stevens.

Interestingly, at trial, DSHS acknowledged that the damages were capable of

accurate calculation and seemed to dispute only how to calculate the damages,

stating, "Neither side, neither party has questioned the . . . reliability of the

statistical analyses .... That isn't what the dispute is. The dispute is, how do you

get to your particular numbers and which criteria do you use." 14 Verbatim Report

of Proceedings at 2779. Although DSHS now disputes the accuracy of the

statistical analysis used by its own experts to calculate the hours that went unpaid,

as we said in Stevens, this does not render the claim unliquidated. The jury could

believe the expert testimony regarding the number of unpaid hours and use it along

with the providers' hourly rate in the contract to calculate damages. Therefore, no

discretion or opinion was required to enable the jury to determine how much the

providers should have been paid had the shared living rule not been in effect.




                                             3
Rekhter v. State
C. Johnson, J., concurring/dissenting


       Although a claim is unliquidated if the fact finder must exercise discretion,

Washington cases have stressed that the act of fact finding is distinct from the

exercise of discretion. In Dautel v. Heritage Home Ctr., Inc., 89 Wn. App. 148,

948 P.2d 397 (1997), an employee filed a claim against her former employer for

wages and commissions owed. Although the parties disputed the percentage to be

applied to the employee's unpaid commissions (the employee argued it should be

20 percent and the employer argued it should be 10 percent), the damage award

was a liquidated sum because it "could be computed with exactness once the trial

court determined that [the employee] was entitled to her full commission rate of 20

percent." Dautel, 89 Wn. App. at 155. Similarly, in Egerer v. CSR W, LLC, 116

Wn. App. 645, 67 P.3d 1128 (2003), a landowner sued an excavation contractor for

failing to deposit fill on the landowner's property, as arranged under contract.

Although both parties agreed that the measure of damages was the difference

between the market price of fill and the contract price, the parties presented

conflicting evidence of market price ranging from $1.10 to $46.80. The damages in

that case were a liquidated sum because

               [l]ike Dautel, where the trial court exercised discretion only to
        find the appropriate commission percentage, the trial court here
        exercised discretion only to find the appropriate market price. The
       amount ... actually owed could be computed with exactness once the
       trial court found that $8.25 per cubic yard was the market price.


                                           4
Rekhter v. State
C. Johnson, J., concurring/dissenting




Egerer, 116 Wn. App. at 654. As in Dautel and Egerer, once the jury resolved the

conflicting evidence over the number of hours eliminated by the shared living rule,

damages could be computed with exactness.

       By. comparison, Washington cases establish that a claim is unliquidated

where the amount claimed may not be arrived at by computation but instead

'tequires the jury to make an award based on opinion or discretion. See Aker Verda!

A/S v. Neil F. Lampson, Inc., 65 Wn. App. 177, 192, 828 P.2d 610 (1992) (claim

for labor costs was unliquidated since "it was within the jury's discretion to

de_termine a reasonable hourly rate"); Maryhill Museum of Fine Arts v. Emil's

Concrete Constr. Co., 50 Wn. App. 895, 751 P.2d 866 (1988) (claim was

unliquidated where a museum, which was damaged by water leaks, was unique and

thus without a market vahw so that the measure of damages was left to the fact

 finder's.discretion); Ski Acres Dev. Co. v. Douglas G. Gorman, Inc., 8 Wn. App.

 775, 508 P.2d 1381 (1973) (claim was unliquidated where the jury resolved the

reasone1;bleness of the cost of repairing damage to a building). In this case, the jury

 was not asked to determine the reasonableness of the hours that the provider class

 worked, the hourly rate paid, or the amount of damages.         Rather, both parties

 presented the jury with damage calculations that were based on mathematical



                                           5
Rekhter v. State
C . .Johnson, .J., concurring/dissenting


f(n·mulas specified in the contract and DSHS' s own regulations. The trial judge

properly concluded that the claim was a liquidated sum.

        The lead opinion concludes that prejudgment interest is not proper here

because the damage calculations required individualized data which DSHS did not

collect during the period of the shared living rule, and therefore the calculations

were not exact but "only estimates." Lead opinion at 25. But our state's cases have

never required complete certainty in order for a claim to be deemed liquidated. See

AfcConnell v..A![others Work, Inc., 131 Wn. App. 525, 536, 128 P.3d 128 (2006)

(damages were liquidated even though experts for both sides testified that an exact

computation of overtime hours worked by the managers was impossible). In

Stevens~   the drive times were not documented or calculated during the period at

is~ue   yet we still upheld the award of prejudgment interest. And the drive times

caleulated by the computer software in that case were "only estimates" because the

~xact    drive times may have been longer or shorter due to traffic volumes,

inclement weather,       or variable driving speeds of each technician.
        Mor~over,     as we previously noted, '"It may be safely said that the tendency

has been in favor of allowing interest rather than against it, and that the degree of

certainty or ease with which the approximate amount can be ascertained has grown

less and less stringent."' Prier, 74 Wn.2d at 34 (quoting 5 ARTHUR LINTON


                                               6
Rekhter v. State
c: Johnson, J., concurring/dissenting

CORBIN, CORBIN ON CONTRACTS§             1046 n.69, at 280 (1964)). "Washington courts

generally favor prejudgment interest based on the premise that a party that retains

money it should have paid to another should be charged interest." Pierce County v.

State, 144 Wn. App. 783, 855, 185 P.3d 594 (2008). It "compels a party that

wrongfully holds money to disgorge the benefit." Mahler v. Szucs, 135 Wn.2d 398,

430, 957 P.2d 632 (1998).

       Although the jury found DSHS's expert witnesses persuasive and ultimately

adopted a number within its range of damage calculations, DSHS now contends

that the damages could not have been calculated with certainty prior to the entry of

judgment. But DSHS has always bee!l- able to calculate the amount it owed based

?11 the contract formula. In fact, the hours and corresponding lost wages leading to
the jury's verdict were calculated and based upon the department's own regulations

and data, statistical analysis, and upon wage and benefit information in the

collective bargaining agreements. 1 The trial court's decision to award prejudgment

interest on the . contract damages properly compels DSHS to disgorge this benefit
             .      . .'


and compensates plaintiffs for the delay in receiving the funds due to them. For

these reasons, I would affirm the trial court in all respects.

        1
         Although the amount of damag~s awarded to the providers is substantial, part of that is
because DSHS chose to continue applying the shared living rule for years after the first trial
court held it to be invalid. The complexity in this case was perhaps caused by the State's delay in
continuing to apply the shared living rule after invalidation.


                                                7
Rekhter v. State
C. Johnson, J., concurring/dissenting




                                        8
Rekhter, et al. v. State, et al.




                                     No. 86822-1




       STEPHENS, J. (dissenting)-The lead opmwn embraces the providers'

misguided argument that the Department of Social and Health Services' (DSHS)

statutory obligations in developing client service plans translate into contractual

discretion to determine a future contract term. As a result it authorizes the use of a

private contract action to impose on the State what amounts to strict liability for

misinterpreting federal Medicaid comparability law. I respectfully dissent. I would

reverse the judgment in favor of the providers on their claim for breach of the implied

duty of good faith and fair dealing, and I would affirm the trial court's dismissal of

their alternative claims. I would also affirm the trial court's decision disallowing

recovery to the client class but on the ground that the client class action is barred by

the statute of limitations or a failure to exhaust administrative remedies. 1



        1
         I agree with the lead opinion's analysis concluding DSHS preserved its issues on
 appeal and with its discussion of attorney fees. Thus, I do not address these issues.
Rekhter, eta!. v. State, eta!., 86822-1 (Stephens, J. Dissent)


       A. The providers' claim for breach of the implied duty of good faith and fair
          dealing fails as a matter of law

       The duty of good faith and fair dealing implicit in a contractual relationship

"obligates the parties to cooperate with each other so that each may obtain the full

benefit of performance." Badgett v. Sec. State Bank, 116 Wn.2d 563, 569, 807 P.2d

356 (1991). "Every contract imposes upon each party a duty of good faith and fair

dealing in its performance and its enforcement."            RESTATEMENT (SECOND) OF

CONTRACTS § 205 (1979). But this duty cannot add to or change the terms of the

contract. Badgett, 116 Wn.2d at 569. Rather, "it requires only that the parties

perform in good faith the obligations imposed by their agreement." !d. The purpose

of implying the obligation of good faith and fair dealing is to preserve the mutuality

of obligations in a contract by assuring that the party who retains authority to specify

the manner of a certain performance cannot thereby render a promise illusory. See

Storek & Storek, Inc. v. Citicorp Real Estate, Inc., 100 Cal. App. 4th 44, 61, 122 Cal.

Rptr. 2d 267 (2002). 2 It has therefore been recognized that the implied duty of good

       2
          The Storek court explained that the rationale behind tests "for evaluating a
promisor's satisfaction relates to the familiar issue of whether a promise is illusory." 100
Cal. App. 4th at 61. It noted:
               Parallel reasoning applies when the promisor is expressly given
        absolute discretion to perform and when the promisor's performance is
        expressly conditional upon the promisor's satisfaction. In both instances,
        courts will imply a covenant of good faith to limit the promisor's express
        contractual authority only when necessary to create mutuality. [Where] the
        promisor has discretion to perform but has given other consideration or,
        when, as here, the promisor's performance is conditional on his objectively
        reasonable satisfaction, then the promisor's ability to avoid performance is
        sufficiently curtailed, the promise is not illusory, and the covenant of good
        faith and fair dealing need not be implied to create a binding promise.
I d. (emphasis added).

                                             -2-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



faith and fair dealing arises where a term in the contract affords one party discretion
                                                     I




in the manner of its performance. Goodyear Tire & Rubber Co. v. Whiteman Tire,

Inc., 86 Wn. App. 732, 738, 935 P.2d             62~     (1997); 23 SAMUEL WILLISTON &

RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS§ 63:22, at 513-16 (4th

ed. 2002).

       Here, the providers' sought recovery on t4e theory that "the contract includes

an implied duty of good faith and fair dealing in the department's performance of

the contract, specifically in .making its determination of the maximum authorized

hours for which it would compensate a provider." Clerk's Papers (CP) at 2_972 (Jury

Instruction 11). They argued th;:tt the "contract obligated the department to pay for

all authorized services provided underthe contract and that the department breached

the contract when it reduced authorized hours by application of the Shared Living

Rule." Id. The jury was instructed that DSHS reserved contractual discretion in

determining the maximum hours for which it woul.d compensate a provider if the

contract did not give DSHS unconditional authority to determine the hou!s or was

silent as to its authority. CP at 2980 (Jury Instruction 19).

        This approach to establishing a duty of good faith and fair dealing was
                  .;

misguided froni the start. DSHS's obligation to determine authorized hours. of care

for each client is not a contractual obligation, express or implied. Rather it is a

statutory duty owed to the clients, not the providers, and the contract simply requires

DSHS to pay each provider based on the individual client's service plan.            As




                                               -3-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



explained below, DSHS retained no discretion under the contract giving rise to the

implied duty of good faith and fair dealing.

       1. As a matter oflaw, the terms of the contract did not leave DSHS discretion
          requiring application of the implied duty ofgood faith and fair dealing in
          developing each client's service plan

       The interpretation of a contract can be a mixed question oflaw and fact. Mut.

ofEnumclawlns. Co. v. USF Ins. Co., 164 Wn.2d411, 424n.9, 191 P.3d 866 (2008).

But where the contract presents no ambiguity and no extrinsic evidence is required

to make sense of the contract terms, contract interpretation is a question of law. Id.;

Tanner Elec. Coop. v. Puget Sound Power & Light, 128 Wn.2d 656, 674, 911 P.2d

1301 (1996); see Badgett, 116 Wn.2d at 568-69 (explaining that whether promisor

had a duty under the contract is a threshold question of law).

       Here, the providers have not argued that the contract is ambiguous or that we

must resort to extrinsic evidence to ascertain its meaning. Instead, they argue the

contract implies a duty of good faith and fair dealing because it contains a

discretionary term. See Br. ofResp'ts Rekhter, et al. at 24; 3 CP at 2980 (instructing

the jury that the duty applies where the contract does not give the department

unconditional authority or is silent as to the department's authority). Whether the

contract contains a discretionary term depends on contract interpretation, a question



        3
         Class representative Leya Rekhter has filed a brief with this court. So has named
plaintiff Cindy Weens, along with the providers' union, the Service Employees
International Union (SEIU). I refer to these parties collectively as "the providers." When
citing to their briefing, I designate whether it is Rekhter's brief or the brief of SEIU and
Weens.

                                               -4-
Rekhter, et a!. v. State, et a!., 86822-1 (Stephens, J. Dissent)



of law in these circumstances. Accordingly, I agree with the lead opinion that the

proper standard of review is the de novo standard.

       As a matter of law, the contract here did not contain an unstated future term

that DSHS retained discretion to determine. The lead opinion wrongly concludes

otherwise. The relevant contract language reads:

       DSHS will pay the Contractor the established rate for services per client in
       the geographic area where services are provided within Washington State.
       Rates will apply to all services authorized and provided under this Contract
       no matter what the payment source. The monthly payment for all services
       provided to any client will not exceed the amount authorized in the client's
       Service Plan. Rate changes will not require a Contract amendment.
       Notification of rate increases will be made by publication of the DSHS Aging
       and Adult Services Administration rates in the Contractor's geographic area.
       Published rates are not disputable.

       DSHS will only reimburse the Contractor for authorized services provided to
       clients in accordance with this Contract's Statement of Work and the client's
       Service Plan.
Appellants' Opening Br., App. at 32 (Client Service Contract, Individual Provider

Services (Contract)§ 4(b), (e)). Under the express terms of the contract, DSHS was

required to pay the providers for the hours authorized by the client's service plan.

DSHS did not retain discretion under the contract to modify the hours for which the

provider was to receive payment. That figure was to be determined solely by

reference to the client's service plan. Any discretion DSHS exercised in creating

client service plans was not part of the performance of the provider contracts but was

integral to DSHS's statutory duty. See, e.g., RCW 74.39.005(5) (charging DSHS

with ensuring that long-term care service options are made available to functionally




                                               -5-
Rekhter, eta!. v. State, et a!., 86822-1 (Stephens, J. Dissent)



disabled persons while "maximi[zing] the use of financial resources in directly

meeting the needs of persons with functional limitations").

       The lead opinion argues:

       DSHS prepared the service plans after the contract was formed with the
       providers and after the providers began performing services. Thus, at the
       time that DSHS and an individual provider executed a provider contract,
       neither DSHS nor the provider knew what services would be needed by the
       clients or how much would be paid to providers. These provisions give
       DSHS the discretion to set a future contract term: the quantity of hours and
       the types of services for which providers will be compensated.

Lead opinion at 10. This misapprehends the nature of discretion in setting a contract

term. It confuses a promisor's reservation of the right to reject or alter a contract

based on preference or caprice with setting a term in a mutually agreed upon manner.

The latter scenario is what occurred here, as a discussion of the cases cited by the

providers and the lead opinion makes clear.

       The lead opinion and the providers begin with Goodyear Tire, 86 Wn. App.

732. Whiteman was an independent dealer of Goodyear tires. Under the dealership

contract, Goodyear reserved the right to sell tires in Whiteman's trade area. Id. at

735. When it exercised the right, Whiteman claimed he was eventually forced to

shutter his business. In response to a suit brought by Goodyear to recoup amounts

due on Whiteman's account, Whiteman counterclaimed for a breach of the duty

under the implied covenant of good faith and fair dealing. I d.

       Importantly, Goodyear Tire held that the duty did not apply. This was because

the contract expressly allowed Goodyear to sell tires in Whiteman's trade area, with

no conditions attached. Id. at 741. The contract did not obligate Goodyear to


                                              -6-
Rekhter; et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



perform in a discretionarymanner. '"[A]s a matter of law, there cannot be a breach
                                                                                          .
of ·the duty of good faith when a p~rty simply stands on its rights to require

performance of a contract according to its terms."' !d. at 740 (quoting Badgett, 116

Wn.2d at 570).
       Goodyear Tire explains that "'[t]he covenant may be relied upon only when

the manner ofperformance under a specific contract term allows for discretion on
                                                      :>..
                                                                   '
the part of either party.".' · 86 Wn. App. at 739 (some emphasis added) (quoting

Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995)). This means the implied
                                                                                              J,.


duty is not triggered where the contract allows for unconditional authority, but it

does not mean that a condition of performance (here, production of the client's

service plan) necessarily renders the performance "discretiomiry." This is the

mistake in the provider's reasoning, repeated by the lead opinion. 4

       The cases cited by the providers do not demonstrate that a condition of

performance is necessarily a discretionary performance. In Tymshare, Inc. v. Covell,

234 U.S. App. D.C. 46, 727 F.2d 1145 (1984), the contract at issue reserved to one

party the right to change a formula upon which compensation was calculated "'at

any time during the quota year within [the party's] sole discretion.'" Id. at 1148

(emphasis added). Here, DSHS retained no such express right. Its manner of

        4
         The providers cite to a single instance in which they claim DSHS "acknowledged
that the contracts vested it with discretion."· Br. of Resp'ts Rekhter, et al. at 25 (quoting·
Verbatim Report of Proceedings at 1868-69). What the providers quote is argument by
 DSHS counsel on a CR 50 motion to dismiss the providers' breach of contract claim (a
 claim that did not survive the jury's review). In the face of DSHS's repeated assertions
 that the contract did not contain a tliscretionary term and lacking any citation to testimony
 from DSHS employees about such discretion, it is unreasonable to conclude DSHS
 conceded this point.

                                               -7-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



performance was dictated by the client's service plan, and it was bound by the hours

authorized by the service plan as much as the providers were. Both parties received

what they bargained for: payment authorized by the client service plan.

       The providers argue that because DSHS employed a formula that determined

the hours of paid care a client would receive, including the adjustments made by the

shared living rule (SLR), DSHS retained the discretion to set a contract term. The

providers mainly cite to Aventa Learning, Inc. v. I(J2, Inc., 830 F. Supp. 2d 1083

(W.D. Wash. 2011) in support of this proposition.                  The providers treat it as

controlling, claiming that under Aventa, "[t]he duty of good faith and fair dealing

applies to the exercise of discretion in implementing payment formulas." Br. of

Resp'ts Rekhter, et al. at 26.

       Aventa involved an asset purchase agreement executed between an acquired

corporation (Aventa) and the acquiring corporation (KCDL) and KCDL's parent

company. The agreement promised Aventa, as consideration for the sale of its assets

to KCDL, an "'Additional Eamout."' Aventa, 830 F. Supp. 2d at 1090. The

additional earnout was a future payment equal to six percent of the assumed equity

value of KCDL at a certain future point. !d. The assumed equity value was

calculated by applying a multiplier to KCDL's trailing 12-month period earnings

before interest, taxes, depreciation, and amortization (EBITDA). Id. When the

 additional eamout was eventually calculated, Aventa challenged the EBITDA figure

KCDL used. The court concluded that the record on summary judgment contained

 enough evidence to suggest KCDL may have suppressed its EBITDA calculation



                                               -8-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



and thus allowed Aventa's claim for breach of the implied duty of good faith and

fair dealing to go forward. !d. at 1101.

       The providers argue that the EBITDA calculation is like DSHS's formula for

setting a client's hours of paid care. But their reliance onAventa fails to account for
the fact that something more than just a contractual relationship between two parties

is at issue here because DSHS has broader obligations as a government agency. 5

Certainly DSHS has an obligation under the contract to pay providers for the number

of hours authorized under each client's service plan. But its method for arriving at

that number-the Comprehensive Assessment Reporting Evaluation (CARE) tool

and the SLR-is not part of the contract. Indeed, the jury rejected any contract

claim. The lead opinion claims that I "ignore[ ] the fact that DSHS created the CARE

process using its discretion." Lead opinion at 10. In fact, it is the contract itself that

"ignores" this. The obligation to determine the hours of care for which a DSHS

client is eligible is not part of the contract here and is instead grounded in statute and

agency regulations. See RCW 74.39.005(2) (requiring DSHS to utilize a uniform

system for comprehensively assessing functional disability); ch. 388-106 WAC

(rules setting forth the CARE tool formula). The presence of the CARE tool,

including the SLR, does not render DSHS 's performance under the contract

discretionary. The lead opinion suggests DSHS' s statutory obligations are irrelevant


        5
         The lead opinion claims that I would hold DSHS is "exempt from the duty of good
faith and fair dealing," lead opinion at 11, because I would distinguish the situation in
Aventa from the one here. On the contrary, a government agency is certainly bound by
good faith and fair dealing. But the CARE tool, and its relationship to the contract at issue
here, is qualitatively different from the formula and contract at issue in Aventa.

                                               -9-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



here because the providers seek to enforce a contractual duty around a contractual

term. Lead opinion at 14 (arguing that "DSHS confuses what is violated with how

it is violated"). To the contrary, the providers are impermissibly attempting to

engraft a contract claim to a statutory obligation using the implied duty of good faith

and fair dealing.

       Likewise, the providers' reliance on Craig v. Pillsbury Non-Qualified Pension

Plan, 458 F.3d 748 (8th Cir. 2006), is misplaced. In Craig, the parties agreed that

the retirement plan administrator had the discretion to interpret the plan terms in

calculating the plaintiff's benefits. Id. at 751, 752, 754. The Eighth Circuit Court

of Appeals explained that this exercise of discretion must be undertaken in good

faith, '"a requirement that includes the duty to exercise the discretion reasonably."'

Id. at 752 (quoting Goldstein v. Johnson & Johnson, 251 F.3d 433, 444 (3d Cir.

200 1)). In performing its obligations under the contract, the plan administrator could

decide whether to count compensation from a certain period of time, but it could not

pick and choose what qualified as "compensation" within that period of time. Id. at

753.

        Here, DSHS does not enjoy a similar contractual discretion to set hours. On

the contrary, the amount paid to providers during the time period in question resulted

from an automatic, across-the-board application of the SLR, which was a validly

promulgated rule codified in the administrative code. While this court subsequently

declared the rule to conflict with federal Medicaid comparability law in Jenkins v.

Department of Social & Health Services, 160 Wn.2d 287, 157 P.3d 388 (2007), our



                                              -10-
Rekhter, et al. v. State; et al., 86822-1 (Stephens, J. Dissent)



decision did not somehow introduce discretion into DSHS contract performance.

One way to better understand why no contractual discretion is involved here is to

consider what would have happened ,had, the court in Jenkins held that the SLR was

consistent ·with federal law.       If DSHS subsequently decided that it wanted to

authorize morehours for live-in care providers despite the rule, it could not do so on

a contract-by-contract basis through an exercise of its discretion. Rather, it would

need to amend or repeal the rule through the proper channels, as agency rules are no

less binding on DSHS than on those who contract with the agency.

      · In sum, under the contract here the providers agreed they would receive

payment for whatever paid hours of care were authorized by the client service plans.

Thus? th(} manner of performance under the specific contract term did not allow

either contracting party to ext?rcise discretion in determining hours. See Goodyear

Tire, 86 Wn. App. at 739 (explaining that the contract term must allow a party
       '.
discretion in the manner of performance). No matter how much discretion DSHS

may have had in creating the CARE tool, because the contract did not vest DSHS

with discretion in the performance of the contract terms, application of an impli~d

duty of good faith was· not required to ensure the providers received the benefit of

their bargain. See Storek, 100 Cal. 4th at 61. Indeed, the providers received the
                    .,
benefit of their bargain: payment for the amount of paid care hours authorized by the

Client's service plan. As a matter of law, a claim for breach of the implied duty of

good faith and fair dealing was not available. The judgment for the providers should

be reversed.



                                              -11-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)


       2. The lead opinion's discussion of whether an express term of the contract
          must be breached to trigger the implied duty ofgood faith and fair dealing
          is not necessary to the resolution of this case

       The lead opinion opines that the duty of good faith and fair dealing can arise

even when there is no breach of an express contract term. Lead opinion at 7. We

have never before considered this question, as evidenced by the lead opinion's

citation to other jurisdictions in support of its proposition. I d. We should be cautious

about weighing in on this question today. It concerns an area of significant debate

among courts, and the question need not be addressed to resolve this case.

       A leading treatise explains that courts are split on whether an express term

must be breached before a breach of the implied convenient may be claimed.

       While some courts allow a plaintiff to recover for breach of the duty of good
       faith and fair dealing even though there has been no breach of a specific
       contractual clause, provision or duty, perhaps the majority of courts declined
       to find a breach of the implied covenant of good faith and fair dealing absent
       breach of an express term of the contract. Under this view, there can be no
       independent cause of action brought for breach of the covenant of good faith
       and fair dealing, rather, the claim must be tied to an alleged breach of a
       specific contract term, often one that allows for discretion on the part of the
       party alleged to have violated the duty.

23 WILLISTON & LoRD, supra, § 63:22, at 514-16 (footnote omitted). We should be

prepared to fully consider the conflicting state authorities before committing

Washington to a position.

        The authorities adopted by the lead opinion fail to set forth a clear line of

reasoning for rejecting the necessity of a contract breach. In Carma Developers

 (California), Inc. v. Marathon Development California, Inc., 2 Cal. 4th 342, 826

 P.2d 710, 6 Cal. Rptr. 2d 467 (1992), the California Supreme Court mused that


                                              -12-
Rekhter, eta!. v. State, et a!., 86822-1 (Stephens, J. Dissent)



requiring a breach of an express contract term to trigger a duty under the implied

covenant would seem to make the covenant itself superfluous. Lead opinion at 7-8

(quoting Carma, 2 Cal. 4th at 373). But the conduct challenged as a breach of the

implied duty in Carma "was expressly permitted by the [contract] and was clearly

within the parties' reasonable expectations." 2 Cal. 4th at 376. Thus, it was a simple

matter for the court to conclude that "such conduct can never violate an implied

covenant of good faith and fair dealing." Id.

       The court in Carma did not consider what conduct would breach the implied

duty in the absence of a breach of an express contract term. The closest the court

came to such an inquiry was its acknowledgment that "[ d]ifficulty arises in deciding

whether conduct, though not prohibited, is nevertheless contrary to the contract's

purpose and the parties' legitimate expectations." !d. at 373. In other words, under

Carma, conduct that is expressly permitted cannot constitute a breach of the implied

duty; conduct that is not expressly permitted but also is not prohibited may constitute

such a breach. 6

       Under the facts of this case and the posture of the parties' arguments, we do

not need to wade into this unsettled area of law. Unlike Carma, this case does not

present a fact pattern where it is alleged that DSHS engaged in conduct that was

neither expressly permitted by the contract nor expressly prohibited. Rather, the

        6The other case the lead opinion relies on for the proposition that breach of an
express term is not needed to give rise to the implied duty, Metavante Corp. v. Emigrant
Sav. Bank, 619 F.3d 748, 766 (7th Cir. 2010), involved an allegation that one party's
performance lacked diligence. While this presents a classic example of a breach of the
duty under the implied covenant, it is unhelpful here because no one is claiming a lack of
diligence by DSHS in performing under the contract.

                                              -13-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



providers claim DSHS dealt itself discretionary authority to determine a future term

of the contract. See Br. ofResp'ts Rekhter, et al. at 24-30. I would conclude that it

makes no difference in this case whether an express term must be breached to trigger

the implied duty of good faith and save the broader question for another day.

       B. The providers cannot prevail on their remaining claims for relief

       The providers present a number of alternative theories under which they claim

they are entitled to a judgment against DSHS. Because I would hold their contract

claim must fail, I address the remaining claims that are not discussed by the lead

opinion. 7

       1. A remedy under Failor's Pharmacy is not available here

       The providers argue in the alternative that the judgment against DSHS may

be affirmed under this court's decision in Failor's Pharmacy v. Department ofSocial

& Health Services, 125 Wn.2d 488, 886 P.2d 147 (1994). Because the lead opinion

affirms the jury verdict on the good faith and fair dealing theory, it does not address

the providers' Failor's Pharmacy argument. I would hold that Failor's Pharmacy

provides no relief to the providers.

        The providers read Failor's Pharmacy to instruct that "[a] party contracting

with the State is entitled to recover underpayments resulting from an invalid

regulation." Br. ofResp'ts Rekhter, et al. at 35. The provider's argue that here, the

 SLR was invalidated and thus the providers are entitled to recover underpayments.

 But Failor's Pharmacy cannot be read as broadly as the providers propose. There,

        7I agree with the lead opinion's resolution of the providers' wage claims. Lead
 opinion at 19-21.

                                              -14-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



the payment schedule at issue was not properly promulgated as a rule according to

the Administrative Procedure Act (APA), chapter 34.05 RCW. Hence, this court

concluded that the payment schedule was procedurally invalid. Failor's Pharmacy,

125 Wn.2d at 497. In turn, it further suggested that the contract at issue was void

and recognized that a "party is entitled to recover for losses on the void contract

under the doctrine of quantum meruit." Id. at 499. 8

       The contract at issue here is not void. Even if Failor's Pharmacy could be

read as broadly as the providers suggest, it is distinguishable from the present case.

No party here has alleged, nor is there any finding, that the contract at issue was void

as a result of the invalidation of the SLR. And, the SLR itself was not invalidated

as a result of a procedural irregularity. See Jenkins, 160 Wn.2d at 300. Failor's

Pharmacy is not applicable here. 9




        8 The providersare not relying on Failor's Pharmacy in support of a quantum meruit
claim. See Br. ofResp'ts Rekhter, et al. at 35-36 & n.15; Br. ofResp'ts SEIU Healthcare
775NW & Cindy Weens at 45-50.
       9
         The providers argue that a "Failor's Pharmacy remedy has been applied expressly
to other DSHS failures to follow federal law." Br. ofResp'ts Rekhter, et al. at 36 (citing
McGee Guest Home v. Dep 't ofSoc. & Health Servs., 96 Wn. App. 804, 810, 981 P.2d 459
(1999)). McGee does not apply the so-called Failor's Pharmacy remedy. It distinguished
Failor's Pharmacy, noting that in McGee, the rates at issue did not qualify as rules under
the AP A. I d. at 812. The McGee court did not remand for a determination of damages
under a theory of quantum meruit, but rather remanded for entry of summary judgment in
favor of DSHS. The providers quote language from McGee as though it expresses a
holding. See Br. ofResp'ts Rekhter, et al. at 36. In actuality, the quoted language comes
from a portion of McGee that is simply relating the facts and the holding of Failor's
Pharmacy. McGee, 96 Wn. App. at 810. As noted, the McGee court does not extend
Failor's Pharmacy.

                                              -15-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)


       2. The providers' unjust enrichment claim was properly dismissed under CR
          50

       Respondent SEIU and provider Cindy Weens crossappeal in the alternative

on the issue of unjust enrichment. The lead opinion need not reach this issue, but

because I would reverse the judgment against DSHS, I must address it. I would

affirm the trial court's decision to grant DSHS's CR 50 motion for judgment as a

matter of law on the unjust enrichment claim. CP at 344 7.

       As an initial matter, a word of clarification about the nature of this claim is

necessary. The trial court pointed out that the providers' complaint sought recovery

under theories of unjust enrichment and quantum meruit. CP at 1734. The trial court

further explained that the providers filed their complaint before this court's decision

in Young v. Young, 164 Wn.2d 477, 191 P.3d 1258 (2008), drew a line between an

unjust enrichment claim, or a claim premised on a contract implied-in-law, and a

quantum meruit claim, or a claim premised on a contract implied-in-fact. CP at

1734; see Young, 164 Wn.2d at 483-85 (describing the difference between the

theories ). 10 In their briefing before this court, the providers make reference to

quantum meruit in their heading, Br. ofResp'ts SEIU Healthcare 775NW & Cindy

Weens (Br. of SEIU) at 46, but then go on to "request that this Court reverse the trial

court's dismissal of the contract implied in law- or unjust enrichment- theory."

Id. at 47. Hence, what is before us is an unjust enrichment, or contract implied-in-
law, claim.

        10
             But see 164 Wn.2d at 498 (Owens, J., dissenting) (arguing that '"quantum
 meruit"' merely refers to the remedy available in either a claim premised on a contract
 implied-in-law or a contract implied-in-fact).

                                              -16-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



       As noted, the trial court granted DSHS 's motion for judgment as a matter of

law under CR 50, following the close of the providers' case in chief. "The standard

on a motion for judgment as a matter of law mirrors that of summary judgment."

Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). Review ofthis issue is

de novo, taking the facts in the light most favorable to the nonmoving party.

       "A party to a valid express contract is bound by the provisions of that contract,

and may not disregard the same and bring an action on an implied contract relating

to the same matter, in contravention of the express contract." Chandler v. Wash.

Toll Bridge Auth., 17 Wn.2d 591, 604, 137 P.2d 97 (1943) (reviewing a claim

premised on a contract implied-in-law). However, there may be an '"implied

contract on a point not covered by an express one.'" Johnson v. Whitman, 1 Wn.

App. 540, 546, 463 P.2d 207 (1969) (quoting Lautenbach v. Meredith, 240 Iowa

166,35 N.W.2d 870,871 (1949). 11 Thus, before addressing the elements for an

unjust enrichment claim, the question is whether the express contract covers the




        11
          DSHS quotes Young for the proposition that unjust enrichment may only be
applied "'absent any contractual relationship."' Appellant's Reply/Cross Response Br. at
52 (quoting Young, 164 Wn.2d at 484). But the case to which Young cites for this
proposition does not suggest that an unjust enrichment claim depends upon the absence of
any contractual relationship. See Bailie Commc 'ns, Ltd. v. Trend Bus. Sys., Inc., 61 Wn.
App. 151, 810 P.2d 12 (1991). Moreover, the "absent any contractual relationship"
language in Young seems at odds with what we have said in cases like Chandler. Finally,
the "absent any contractual relationship" language was not germane to Young's reasoning
or holding, and Young is not a case where any express contract was at play. I would hesitate
to elevate its "absent any contractual relationship" language to settled legal principle, as
DSHS suggests we do.

                                              -17-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



matter at issue: the total amount of authorized hours DSHS agreed to pay the

provider. 12

       The contract clearly contemplates this point. The terms of the contract state

that "[t]he monthly payment for all services provided to any client will not exceed

the amount authorized in the client's Service Plan." Appellants' Opening Br., App.

at 32 (Contract § 4(b )). Per the contract, the providers accept "the DSHS payment

amount, together with any client participation amount, as sole and complete payment

for the services provided under this Contract." Id. (Contract§ 4(c)). The contract

also states that, "DSHS will only reimburse the Contractor for authorized services

provided to clients in accordance with this Contract's Statement of Work and the

client's Service Plan." Id. (Contract§ 4(e)). Finally, the contract states that "DSHS

will pay the Contractor only for authorized services provided under this Contract."

!d. (Contract § 5(b)).
       The trial court correctly granted DSHS 's CR 50 motion because as a matter

of law, a jury could not have found an implied contract on the same matter covered

by the express terms of the contract.

       In sum, none of the providers' alterative claims prevail, and I would hold there

is no basis in law to grant them relief.




        12
         The providers have not characterized the matter at issue differently. But, they
bypass the discussion of whether the issue here is controlled by the express contract and
move directly to the elements of unjust enrichment. See Br. of SEIU at 48. That move is
premature if the express contract covers the point in contention.

                                              -18-
Rekhter, et a!. v. State, eta!., 86822-1 (Stephens, J. Dissent)


       C. The client class claim for monetary judgment should have been dismissed
          on summary judgment

       The final issue to be resolved under my disposition of this case is whether the

client class is entitled to a monetary judgment. The lead opinion holds that the client

class cannot recover damages along with the providers because this would result in

a double recovery. Lead opinion at 18. While I do not necessarily disagree with this

analysis, because I would hold the providers are not entitled to recover at all, the

double-recovery analysis is inapplicable to my resolution of this case. I would hold

that the client class claims should have been dismissed on DSHS 's motion for

summary judgment.

       First, it is important to parse out the nature of the client class claims. As a

class, the clients were allowed to join the providers' claim for breach of contract or

breach of the implied duty of good faith and fair dealing; as the lead opinion

describes it, this was essentially a "pass through" claim. See lead opinion at 17-18.

Under my resolution of this case, that theory of liability fails, so the client class is

no more entitled to a monetary judgment grounded in contract than is the provider

class. But the client class also sought recovery based on RCW 34.05.570(2) of the

APA, Jenkins, and RCW 74.08.080(3). 13 See CP at 11-32 (class action complaint).

In essence, the client class sought monetary relief via RCW 74.08.080(3) under the

       13
          The AP A generally does not provide for monetary damages. However, the
provision of the act codified in RCW 34.05.574(3) allows a court to "award damages,
compensation, or ancillary relief only to the extent expressly authorized by another
provision oflaw." RCW 74.08.080(3) provides that on a petition for judicial review of an
agency action, "[i]f a decision of the court is made in favor of the appellant, assistance shall
be paid from the date of the denial of the application for assistance." Thus, the client class
claim for back benefits is premised on RCW 74.08.080(3).

                                             -19-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



theory that Jenkins had invalidated the SLR. The client class moved for summary

judgment on the right to retroactive compensatory relief under RCW 74.08.080(3)

as a result of the Jenkins decision. CP at 452 (Court's Opinion reCross Motions for

Summ. J.). DSHS cross moved for summary judgment, arguing this claim was time

barred as to most members of the class and barred for failure to exhaust

administrative remedies as to the rest. The trial court granted summary judgment in

favor of the client class on this issue and allowed the claim to proceed. CP at 455-

56.

       The trial court seemed to assume that because Jenkins invalidated the SLR, a

claim for retroactive compensation was necessarily proved and the only question left

was the measure of damages. CP at 45 5 (explaining, "I conclude that this court does

have jurisdiction to decide the number of service hours wrongfully withheld from an

in-home care recipient by application of the SLR and to award judgment to the

recipient for retroactive compensation for those hours."). The trial court erred as a

matter oflaw. I would hold that this claim should have been dismissed on summary

judgment for the reasons DSHS advanced. 14

        Under RCW 74.08.080(2)(a), individuals must file a challenge to a public

assistance determination within 90 days of the determination. Thus, every member


        14 The providers claim that DSHS failed to preserve a challenge to the trial court's
 decision concerning the client class claims. There is no support in the record or briefing
 for this contention. DSHS's timely notice of appeal clearly encompassed the trial court's
 ruling on the client class. Its briefing assigns error to challenged portions of the trial court's
 order concerning the client class, and fully argues those points. Appellants' Opening Br.
 at 7-8 (assignment of error 4 & 5), 59-74 (argument); Appellants' Reply/Cross Response
 Br. at 36-49 (argument).

                                               -20-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



of the client class who failed to do so is barred from recovery in this lawsuit. DSHS

recognizes that a small subset of clients within the class had assistance

determinations made within the 90 days preceding the filing of this complaint on

May 4, 2007. While DSHS appropriately concedes that those clients are therefore
not time barred from bringing a claim, those members of the client class are

nevertheless barred from recovery because they did not exhaust their administrative

remedies as required by RCW 34.05.534.

       1. Statute of limitations and equitable tolling

       Turning first to the statute of limitations questions, the client class argues that

the time bar applicable to APA claims has no bearing on claims brought pursuant to

RCW 34.05.570. Br. of Resp'ts Rekhter, et al. at 60-61. They suggest a claim to

invalidate agency rules can thus be brought at any time under RCW 34.05.542(1)

and result in the retroactive restoration ofbenefits under RCW 74.08.080(3). Id. at

59-61. This misapprehends the statutory scheme under the APA and chapter 74.08

RCW. A petition for judicial review may be filed at any time subject to other

requirements of the APA or of another statute.                     RCW 34.05.542(1).   The

requirements of the APA and another statute are fatal to the client class claims here.

RCW 74.08.080(2)(a) requires a challenge to a DSHS determination be brought

within 90 days of the agency action. RCW 34.05.542(2) requires a petition for

judicial review of an agency order be brought within 30 days of service of the final

order. Nothing in RCW 74.08.080(3) authorizes retroactive monetary damages for

an untimely rule challenge that might have been substantively successful.



                                              -21-
Rekhter, eta!. v. State, et al., 86822-1 (Stephens, J. Dissent)



       Insofar as the client class complaint sought to invalidate the SLR, it asked for

prospective invalidation. CP at 32. The trial court appropriately recognized that the

client class claim to invalidate the SLR was moot in light of Jenkins, but that the

class further claimed monetary relief, viz. back-benefits dating to April 2003. See

CP at 454, 3474-7 5. Such a claim is fully subject to the statute of limitations that

the legislature established to set a limit on the state's exposure to liability. The trial

court believed it could equitably toll the limitation provision in RCW 74.08.080(3).

2 Pretrial Verbatim Report of Proceedings (VRP) at 247. As a matter of law, the

trial court erred in so holding. 15

       Equitable tolling gives a court power in equity to set aside a judgment, even

where the statute of limitations on a challenge to the judgment has run. Ames v.

Dep 't ofLabor & Indus., 176 Wash. 509, 30 P.2d 239 (1934). We have applied the

doctrine sparingly because it essentially allows a judicial branch officer to override

a legislative determination. See Leschner v. Dep 't ofLabor & Indus., 27 Wn.2d 911,

185 P.2d 113 (1947). InLeschner, we explained:

       [W]e must decline [to apply equitable tolling], for, in our opinion, it would
       be a dangerous path to follow. Such a rule could only be in disregard of the
       universal maxim that ignorance of the law excuses no one. What is more
       important, it would substitute for a positive rule established by the legislature
       a variable rule of decision based upon individual ideas of justice conceived
       by administrative officers as well as by the courts.

        15
          The providers argue that the standard of review to be applied to "the exercise of
inherent equitable powers is the highly deferential 'abuse of discretion' standard." Br. of
Resp'ts Rekhter, et al. at 63. The providers are mistaken. Whether a statute oflimitation
applies is a question of law that this court reviews de novo. Even if the providers are
correct that the standard of review on this issue is abuse of discretion, the trial court
misapplied the law, as I explain below, rendering its decision an abuse of discretion.

                                             -22-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



27 Wn.2d at 926. 16

       The trial court's oral ruling did not address our cautionary note in Leschner

that equitable tolling cannot be used to set aside a positive rule established by the

legislature. Instead, the trial court concluded that it could excuse any failure to

timely challenge DSHS 's action because the disabled individuals comprising the

client class were vulnerable and acted with diligence in bringing suit after Jenkins.

See 2 Pretrial VRP at 244-45. This is not a sufficient basis to support equitable

tolling.

       Certainly our case law has recognized that some degree of vulnerability may

allow for relief through equitable tolling. See Ames, 176 Wash. 509 (plaintiff

adjudicated insane); Rodriguez v. Dep 't ofLabor & Indus., 85 Wn.2d 949, 540 P.2d

1359 (1975) (plaintiff extremely illiterate and did not speak English). But while

vulnerability may be a necessary condition, it is not alone sufficient. All ofDSHS 's

clients are, by definition, vulnerable. The legislature nonetheless established a

limitation period for challenging DSHS actions. Recognizing the need to respect

legislative choices, this court has required a particularized showing that applying a


        16
          Since Leschner, we have suggested that in order to avail one's self of equitable
tolling, the party seeking to circumvent a statute of limitations must show both an
incompetency that prevented knowledge of the adverse determination and "some
misconduct on the part of the [agency] in communicating its order to the claimant."
Kingery v. Dep't of Labor & Indus., 132 Wn.2d 162, 174,937 P.2d 565 (1997). But
Kingery was a plurality, and there is no holding from this court limiting the application of
equitable tolling to scenarios in which these two criteria were present. Appellants'
Opening Br. at 68-69; see Kingery, 132 Wn.2d at 179 (Alexander, J., dissenting)
(explaining that while he agreed that equitable tolling allows a court to intervene to "protect
those who are unable to protect themselves," he would not limit it to incompetent persons).

                                              -23-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



limitation period to the particular plaintiff would work an injustice. See Ames, 176

Wash. at 510 (applying equitable tolling where plaintiff did not receive notice of the

action); Rodriguez, 85 Wn.2d at 950 (applying equitable tolling where plaintiff

received notice but could not read it and had no interpreter); Kingery v. Dep 't of

Labor &Indus., 132 Wn.2d 162, 174, 937 P.2d 565 (1997) (plurality explaining that

equitable tolling applies where some infirmity prevents the plaintiff from

understanding the action); id. at 179 (Alexander, J., dissenting) (explaining majority

view that equitable tolling would apply if plaintiffs missed a statute of limitations

due to "circumstances largely beyond their control"); Leschner, 27 Wn.2d at 927

(declining to apply equitable tolling where plaintiff was appropriately notified of

action, though falsely told by doctor that he had submitted a claim, and pursued no

further action despite no communication from the department for four years).

       Here, there is no showing as to how the vulnerability of the members of the

client class prevented them from timely challenging the actions taken by DSHS. Use

of the SLR was spelled out in the Washington Administrative Code. Former WAC

XXX-XX-XXXX (2003); former WAC 388-72A-0095(c) (2003); former WAC 388-106-

0130(3)(b) (2005); see Leschner, 27 Wn.2d at 926 (noting that ignorance of the law

is no excuse). And, clients received notice whenever their benefits changed, either

by reduction or increase. The clients argue that "DSHS notices to Clients during its

operation of the SLR provided incorrect and affirmatively misleading information

about the paid care for which the Clients were eligible and the SLR' s reduction of

those benefits." Br. of Resp'ts Rekhter, et al. at 66. The trial court made no such



                                              -24-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



finding, nor did it even mention any deficiencies in DSHS 's notices to the clients.

The providers' citations to the record in support of the alleged misleading

information provided by DSHS are not convincing. It is true, as the providers argue,

that some planned action notices alerted clients that their hours would be reduced

without specifically explaining whether the reduction was a result of the SLR. !d.

(citing CP at 1133). But it is difficult to see what difference that information would

have made to the decision to appeal a reduction or termination of hours. The clients

were told of the very reduction in benefits they now seek to have restored and were

clearly advised how to and by when to appeal. See CP at 1133-35. Indeed, the client

class does not show how the notices its members received differed from those other

clients received during the relevant time period. The fact that the clients in Jenkins

preserved and brought a timely challenge to the SLR demonstrates that the planned

action notices were adequate.

       Perhaps anticipating this conclusion, the client class argues that the action

notices were categorically deficient in that they failed to disclose that the "right to

an administrative appeal . . . was illusory because there was no jurisdiction over

appeals of the SLR." Br. ofResp'ts Rekhter, et al. at 66-67. The problem with this

view is that it misunderstands the administrative process.              Although an

administrative law judge cannot invalidate an agency rule in the course of

determining a benefits challenge, the APA allows for the joining of a rule challenge

to an administrative appeal, as the plaintiffs' reliance on RCW 34.05.570

 acknowledges. Indeed, this was the path followed by the plaintiffs in Jenkins.



                                              -25-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



Moreover, an appeal may be filed directly in superior court where it would be futile

to exhaust administrative remedies. RCW 34.05.534(3). It proves too much to say

that DSHS 's system of administrative appeals-mandated under the APA-is itself

a basis to grant equitable tolling. If this were true, the limitation period under the

APA would have no effect. In sum, the trial court erred when it concluded that the

vulnerability of DSHS clients, and the nature of the administrative appeal process,

justified equitable tolling. Such a conclusion would completely eviscerate the statute

of limitations under RCW 74.08.080(2)(a) for each and every DSHS client.

       Moreover, the trial court was incorrect that the clients acted with diligence,

thus justifying the imposition of equitable tolling. The trial court reasoned that the

clients and providers filed this complaint the day after Jenkins was decided. But it

is difficult to understand how this constitutes diligence, other than diligence in

seeking a retroactive application of the decision in Jenkins. As noted, there is no

basis for such relief. The client class complaint appears to recognize as much

because it frames its request for back benefits as an action under the APA and RCW

74.08.080, while (unnecessarily) asking for "prospective" invalidation of the SLR.

CP at 31. While the plaintiffs are correct that retroactive relief is available in an

action challenging the validity of an agency rule, the law also requires that such an

action be timely. 17 The majority of the clients in the class cannot avail themselves

        17
          The client class claims that in Berry v. Burdman, 93 Wn.2d 17, 604 P.2d 1288
(1980), plaintiff Genevieve Gallow was awarded retroactive relief despite having failed to
file a timely petition for review of the agency action. Br. ofResp'ts Rekhter, et al. at 61
n.25 (citing CP at 3664). They cite to the complaint in the trial record in Berry, which
states that plaintiff Gallow was notified of the agency action of September 29, 1976 and
requested an administrative hearing on October 4, 1976. CP at 3664. This does not appear

                                              -26-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



of a retroactive monetary recovery under Jenkins because their claims are barred by

the statute of limitations. As to the subset of clients who filed timely challenges to

agency action, their request for a monetary award is barred because they failed to

exhaust their administrative remedies, and I turn now to that question.

       2. Exhaustion ofremedies

       Some members of the client class challenge adverse decisions made within 90

days of the date this action was filed, May 4, 2007, thereby satisfying the statute of

limitations in RCW 74.08.080(2)(a). However, they must still demonstrate that the

court can excuse their failure to exhaust their administrative remedies. See RCW

34.05.534 (barring judicial review if administrative remedies are not exhausted).

Once Jenkins was decided on May 3, 2007, claimants had an administrative remedy:

the SLR was invalid and a challenge to its imposition would have resulted in a

readjustment of hours. There can be no argument that seeking administrative relief

would have been futile at this juncture, yet futility is the only argument the client

class advances for not requiring exhaustion. Because this argument fails, I would

hold that this subset of class plaintiffs cannot recover in this action. 18




to support relief without regard to the timeliness of a petition; at any rate, the opinion in
Berry does not itself provide support for the view that a court may set aside a statute of
limitations and award retroactive monetary relief.
        18
           In concluding that administrative actions would have been futile, the trial court
noted the large number of individuals who would have had to file administrative
challenges. See, e.g., 2 Pretrial VRP at 243, 247. To the extent the judge was suggesting
the large number of claimants would have made an administrative appeal futile, there is
not support for such a conclusion in the AP A. A class is not excused from exhausting
administrative remedies.

                                              -27-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)



                                      CONCLUSION

       The implied duty of good faith and fair dealing arises only where the manner

of performance leaves a contracting party discretion in fulfilling its obligations under

the contract. Here, DSHS's performance was not conditioned on an act of discretion

but governed by the statutes, rules, and regulations the agency was bound to follow.

As a matter of law, there was no discretion implicating the implied duty of good

faith and fair dealing, and the providers' claim premised on this theory should have

been dismissed. As the providers remaining claims are not viable, I would reverse

the judgment in their favor.        I would also reverse the order granting summary

judgment on the client class claims, most of which are barred by the applicable

statute of limitations and the remainder ofwhich are barred by the failure to exhaust

administrative remedies. Accordingly, I dissent.




                                              -28-
Rekhter, et al. v. State, et al., 86822-1 (Stephens, J. Dissent)




                                              -29-
