                                                                                                         FILED
                                                                                                 CO' _RI- OF
                                                                                                          APPEALS

                                                                                             20111JUN24          9 : Q3
                                                                                             c


    IN THE COURT OF APPEALS OF THE STATE OF WASHIN
                                                                                             2y
                                       DIVISION II


RICHARD APPLEGATE and KAREN                                             No. 43043 -6 -II
APPLEGATE, husband and wife,


              Appellants /Cross -Respondents,


       v.



WASHINGTON FEDERAL SAVINGS, a
Savings and Loan subsidiary of
WASHINGTON FEDERAL, INC., a
Washington Corporation;


              Respondent/ Cross -Appellant,


HARBOR HOME DESIGN, INC., a
Washington Corporation; CHARLES
BUCHER and JANE DOE BUCHER,
husband and wife, and the marital

community comprised thereof;
                              Respondents,


KITSAP BANK, a Washington Financial
Institution; OHIO CASUALTY INSURANCE
CO., Bond No. 3620699; and AMERICAN                              UNPUBLISHED OPINION
INTERNATIONAL GROUP, INC.,
re Policy No. 06LX0093840897,

                              Defendants.


       WoRSwICK, J. —     Richard and Karen Applegate appeal from the trial court' s orders


following a jury verdict in favor of Washington Federal Savings ( WFS) and Harbor Home
Design ( HHD). The Applegates    also challenge   the trial                trial
                                                              court' s pre -       ruling granting summary
No. 43043 -6 -II



judgment to WFS on their claims for negligence and breach of fiduciary duty. WFS cross -

appeals, challenging the trial court' s denial of its attorney fees request.

          The Applegates argue that the jury verdict was improper because ( 1) interrogatory 1 on

the WFS special verdict form confused the jury as to the Applegates' breach of contract claim

against   WFS, ( 2)   the trial court improperly excluded the Applegates' expert witness Robert

Floberg for a discovery violation, and ( 3) the trial court improperly excluded the Applegates' lay
witness   Diana Behrens     under   ER 404( b). WFS argues that the trial court erroneously ruled that


the contract' s attorney fee provision did not apply to the defense of a breach of contract claim.

          Because the jury instructions were proper, and because the trial court did not err in

excluding Floberg' s or Diana' s testimony, we affirm the jury verdict. Additionally, because the

jury established as a fact that HHD committed no wrongdoing related to its dealings with the

Applegates, we hold that whether the trial court erred in granting summary judgment on the

Applegates' negligence and breach of fiduciary duty claims is a moot issue. Finally, because the

custom construction loan contract' s attorney fee provision entitles WFS to attorney fees as the

prevailing party, we reverse the trial court' s denial of attorney fees to WFS and remand for an

award of attorney fees, limited to fees and costs incurred defending against the Applegates'

contract action.



                                                   FACTS


          Richard and Karen Applegate sought to build a home. The Applegates took out a

  550, 000 mortgage with WFS to finance the home' s construction and hired HHD to build it.




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No. 43043 -6 -II



Charles Bucher was the president and sole employee of HHD. 1 The Applegates signed a custom

construction loan contract with WFS and a residential construction contract with HHD.

A.      The Applegates' Contract with WFS


        1.   Custom Construction Loan Contract


        Under the terms of the custom construction loan contract, WFS maintained control and

possession of the construction loan principal throughout the home' s construction, distributing it

periodically as HHD completed work.

        Under the contract, WFS had the authority to distribute the construction loan principal

directly to either the Applegates or HHD, in the form of "draws" against the borrowed principal.

WFS had written policies and procedures for the management of custom construction loans. The

Applegates and HHD, but not WFS, signed a written statement, separate from the contract,

detailing these procedures. The Applegates allege it was their understanding that WFS would
follow these procedures. The written statement stated in part:

        Draws will be based on the percentage of completion per the submitted approved
        contract, plans,   and   specifications, [ unless   otherwise   agreed]    in writing  WFS
        will not advance    any money for items     not yet   delivered   and   installed. WFS shall

        at all times have the right to enter upon the property during the period of
        construction work, and if the work is not satisfactory [ WFS] shall have the right
        to stop the work and order its replacement, whether or not the unsatisfactory work
        has already been incorporated into the improvements.
        On -site inspections are typically completed between the 1st and 9th day of each
        month....

                   Prior to the payment of any draw, a Certificate of Job Progress, signed by
        both [ HHD] and the [ Applegates] will be required. Checks will be issued payable
        to [ HHD] and the [ Applegates] unless WFS is previously instructed otherwise in



 1 For the purposes of clarity, we refer to Charles Bucher, Jane Doe Bucher, and HHD
 collectively as HHD. We refer to Washington Federal Savings and its parent company
 Washington Federal Incorporated collectively       as    WFS.   We refer to individuals when necessary,
 and use first names for clarity.


                                                      3
No. 43043 -6 -II



         writing.     However, in all cases, the final draw must be made payable to
          HHD] and the [ Applegates].


Exhibit 62 at 1.


         When managing the Applegates' construction loan, WFS usually mailed the check and a

certification ofjob progress to HHD' s office to collect the required signatures on the certification


 of   Charles for HHD      and   Richard for the Applegates),   rather than waiting for the parties to come

into WFS' s office to pick up the check and sign the certification. WFS contended that it did this

because the Applegates were often out of town, and could not timely come in to WFS' s office to

sign the certification.


B.       Disputes During Construction

         The Applegates contended that they began to have disputes with HHD and WFS during

the home' s   construction.      The Applegates    contended   that HHD, among    other   things, ( 1) did not


follow the homes'      building plans, ( 2) purchased substandard construction materials but charged

for high -
         quality    construction materials, (     3) double -
                                                            billed the Applegates, and ( 4) failed to deduct


the Applegates' $     52, 262. 50 deposit from its initial draw request.


         In addition, the Applegates contended that someone forged Karen' s signature on the

Applegates' residential construction contract with HHD, and that Charles forged Richard' s

signature on   both   a   draw   check   for $ 108, 172. 00 and on the corresponding certification.


Regarding Richard' s signatures, Charles admitted to signing Richard' s name on the draw check
for $ 108, 172. 00.   But Charles contended that he did this because Richard told Charles to sign the

check in Richard' s name, and that Richard later signed the corresponding certification. Richard

contended that he could not remember signing the certification and that he did " not doubt that




                                                          4
No. 43043 -6 -II



 Charles] forged [ his]   name on   the [ corresponding] Certification   as well."     Clerk' s Papers ( CP) at


573.


        The Applegates contended that WFS failed to prevent HHD' s wrongdoing through a

multitude of bad acts. First, the Applegates contended that Joni Cross, the Applegates' main

contact at WFS, refused the Applegates' requests to timely provide them with copies of HHD' s

invoices and draw requests, which delayed their discovery of HHD' s bad acts. Second, the

Applegates contended that WFS disbursed funds to HHD without signed certifications. Third,

the Applegates contended that WFS consistently sent draw checks to HHD, despite the

Applegates' request that WFS disburse the draw checks to them directly. Fourth, the Applegates

contended that WFS approved distributions of funds to HHD for incomplete construction. Fifth,

the Applegates     contended   that WFS   failed to remedy HHD'   s   forgery   of   the $ 108, 172. 00 draw



check after the Applegates informed WFS of it. Finally, the Applegates contended that WFS

disbursed the remaining balance of the construction loan principal as a " final draw" before HHD

completed the home, despite the contract stating that those funds were not to be distributed until

the home' s completion.


C.      The Applegates' Suit


        The Applegates sued WFS claiming, among other things, negligence, breach of fiduciary

duty, and breach of contract. The trial court summarily dismissed the Applegates' claim against

WFS for breach of fiduciary duty on grounds that WFS had no fiduciary duty to the Applegates.

Later, the trial court summarily dismissed the Applegates' claim against WFS for negligence

under the independent duty doctrine, and allowed the case to proceed against WFS on the breach

 of contract claim.




                                                      5
No. 43043 -6 -I1



        The Applegates also sued HHD. The claims against HHD included breach of contract,

fraud, and wrongful conversion. The matter was tried before a jury.

D.      Exclusion of the Applegates' Witnesses

        1.   Exclusion ofExpert Forensic Handwriting Examiner Robert Floberg

        The Applegates sought to admit the expert testimony of Robert Floberg, a forensic

handwriting examiner, to support their allegations of forgery: that Charles forged Richard' s

signature on   the   certification   that   authorized   the $ 108, 172. 00 draw check and that Karen


Applegate' s signature on the residential construction contract was forged. The trial court

excluded this witness as a discovery sanction for the Applegates' failure to timely disclose

Floberg' s opinion.

        The Applegates filed their Second Amended Complaint in January of 2010. After

granting the parties two continuances, the trial court set the trial date at June 20, 2011, and set a

case schedule that required the Applegates to disclose their rebuttal witnesses by February 28,

2011.


        On April 14, 2011, six weeks past the rebuttal witness disclosure deadline, the

Applegates filed an amended disclosure of witnesses, listing seven previously undisclosed

witnesses (   including Floberg). HHD moved to exclude the Applegates' newly disclosed

witnesses, including Floberg. The trial court did not exclude the Applegates' witnesses at that

time, stating, "   Striking   witnesses ...     is the harshest remedy that the [ c] ourt can impose. At this

 stage, I' m more inclined to try to work a way where [ the] defense will not be prejudiced by these

witnesses, rather     than striking them."       Verbatim Report    of   Proceedings ( VRP) ( May   6, 2011) at

 15.




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No. 43043 -6 -II



           Instead of striking the newly disclosed witnesses, the trial court continued the trial date a

third time to October 4, 2011.             The new case schedule set a new discovery cutoff of August 16,

2011.      The trial court stated in the presence of both parties that the new discovery cutoff should

 be   a   line in the   sand   that   will not   be ...   stepped over."   VRP ( May 6, 2011) at 17.

           On June 10, 2011, HHD asked for the opinions of the Applegates' newly disclosed expert

witnesses. On July 1, 2011, HHD again asked the Applegates for the experts' opinions, and

specifically asked the Applegates to state whether Floberg would give any opinion at all. HHD

also stated on July 1, 2011 that it would move to strike the opinions of any experts who failed to

reach opinions by the discovery cutoff of August 16, 2011.

            Floberg' s original deposition was scheduled for August 16, 2011, but did not occur. On

August 18, 2011, two days after the discovery cutoff, the Applegates emailed to inform HHD

that they were going to have Floberg examine two documents for potential forgeries: Richard' s

signature on      the   certification    authorizing the      expenditure on   the $   108, 172. 00 draw check and


Karen Applegate' s signature on the residential construction contract. On August 31, 2011,


which the Applegates claim was immediately after Floberg told them that he needed to see the

originals of both documents, the Applegates provided Floberg' s tentative opinion that Richard' s

signature on the certification and Karen' s signature on the residential construction contract were


potential forgeries, but stated that Floberg needed the original documents to engage in a more

formal analysis. In September of 2011, the parties argued over whether to depose Floberg in

King County or Pierce County, which further delayed the deposition.




                                                                 7
No. 43043 -6 -II



         HHD moved to exclude Floberg' s opinion as a discovery sanction for the Applegates'

failure to timely disclose his opinion. The Applegates argued that they delayed providing

Floberg' s opinion because Floberg needed to see the original documents before making a final

opinion on whether a forgery existed.

         The Applegates argued that they did not want to travel to King County to view the

original documents when they could instead simply wait until Floberg' s eventual deposition,

which they believed had to be conducted in Pierce County. The Applegates argued that the

conflict over where to conduct Floberg' s deposition delayed both the deposition and Floberg' s

examination of the original documents.


         The trial court excluded Floberg' s testimony. In its written order, the trial court found

that the Applegates' failure to timely disclose Floberg' s opinion was willful and prejudicial, and

that lesser sanctions were inadequate.


          2. Exclusion ofLay Character Witness Diana Behrens

          The Applegates also sought to introduce the testimony of Diana Behrens, who had

previously hired HHD to build her and her husband' s house. Diana was prepared to testify that

HHD ruined their house, went over budget, and stole at least $ 75, 000 from her and her husband

David. HHD submitted David Behrens' s declaration which stated that HHD was not deceptive

or unfair and did not steal any money from the Behrens.

          The trial   court excluded     Diana'     s   testimony   under   ER 404( b),   ruling that it constituted

 evidence going to HHD' s character so as to establish conformity therewith in the Applegates'

 case.   The trial   court stated   that "[ t] he   problem   I have is that   all   these things that[] [ Diana] is




                                                               8
No. 43043 -6 -II



saying are simply allegations. They' ve not been proven. They' re just simply her opinion as to

what occurred     in her   situation and never went      to trial."   VRP ( Oct. 6, 2011) at 62 -63.


E.          WFS Special Verdict Form


           The trial court provided the jury with instructions: Jury instruction 2 stated in part:

                   In   addition   to the   claims against [   HHD], [ the Applegates] also claim that
            WFS] breached its construction loan agreement with the [ Applegates] by failing
           to properly inspect the residence while it was under construction to make sure that
           amounts requested by [ HHD] for building the [ home] were proper.

CP at 2699.


           In addition to the jury instructions, the trial court provided the jury with two special

verdict forms: one for the Applegates' claims against WFS and one for the Applegates' claims

against HHD. WFS interrogatory 1 asked the jury:

            Did Washington Federal           Savings ( " WFS ") breach its contract to provide a
            construction loan to the Applegates?


CP    at   2739. The Applegates took         exception   to WFS   interrogatory   1.   They requested that the

trial court remove the reference to a " construction loan" and reword the interrogatory to ask,

     D] id Washington Federal Savings breach its          contract."    VRP ( Oct. 31, 2011) at 393. The trial


court did not adopt the Applegates' proposed modification.


F.          Jury Verdict and WFS' s Motion for Attorney Fees

            This case proceeded to a jury trial that resulted in defense verdicts. The jury answered

 No" to WFS interrogatory 1, finding that WFS did not breach its contract to provide a

construction loan to the Applegates.




                                                            9
No. 43043 -6 -II



        The jury resolved three issues in favor of HHD through its answers to the interrogatories

on the HHD special verdict form. First, the jury answered " No" to HHD interrogatory 1, finding

that HHD did     not   breach its    contract with   the Applegates.       Second, the jury answered " No" to

HHD interrogatory numbers 9 and 10, finding that neither HHD nor the Buchers committed

fraud in respect to the draws and billings submitted to the Applegates. Third, the jury answered

 No" to HHD interrogatory numbers 12, 13, 15, and 16, finding that neither HHD nor Charles

wrongfully   converted     the Applegates'       funds    by failing to   deduct the Applegates' $ 52, 262. 50


deposit from their initial draw        request, or   by   negotiating the $ 108, 172.00 draw check.


        Following the jury verdict, WFS asked for $264, 115. 32 in attorney fees pursuant to its

contract with the Applegates. The contract' s attorney fee provision stated in part:

        If [WFS]       seeks   the   services of an               to enforce any provisions of this
                                                        attorney ...
        Agreement,        the    Note,     the   Security Instrument or other promises of the
         Applegates]      as contained      in the loan documents, [ WFS] shall be entitled to all of
        its attorney' s fees and costs of enforcement.

Exhibit 61 at 5 ( emphasis added).


        The trial court did not award fees to WFS because the attorney fee provision authorized

fees only for " enforcement" of a contract. The trial court ruled that the attorney fee provision did
not intend to encompass WFS defending against a breach of contract claim.

        The trial court awarded WFS only $200. 00 in statutory attorney fees under RCW

4. 84. 080. The trial court awarded HHD $200 in statutory attorney fees under RCW 4. 84.080,

  500. 00 in attorney fees      under    CR 37( c), $   1, 098. 91 in costs and litigation expenses, and $ 500. 00

 in sanctions.




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No. 43043 -6 -II



         On appeal, the Applegates challenge the trial court' s summary judgment ruling and the

jury verdict. WFS' s cross -appeal challenges the trial court' s decision against awarding attorney
fees pursuant to the contract.


                                                       ANALYSIS


                                                   I. JURY VERDICT


A.       Jury Instructions and Special Verdict Forms

          The Applegates argue that WFS interrogatory 1 misled the jury, such as to warrant a

retrial. We disagree.


          We review challenged jury instructions de novo to ensure their legal sufficiency. Hough

v.   Stockbridge, 152 Wn.       App.   328, 342, 216 P. 3d 1077 ( 2009).             Jury instructions and special

verdict forms are legally sufficient if they allow the parties to argue their theories of the case, are

not misleading, and when taken as a whole, properly inform the jury of the applicable law.

Capers v. Bon Marche, 91 Wn. App. 138, 142, 955 P. 2d 822 ( 1998).

          Where the jury instructions are held legally sufficient, we review their specific wording

for an abuse of discretion. Bodin v. City ofStanwood, 130 Wn.2d 726, 732, 927 P. 2d 240

 1996); Singh     v.   Edwards Lifesciences        Corp.,    151 Wn.   App.    137, 151, 210 P. 3d 337 ( 2009). A


trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable

grounds or untenable reasons. Salas v. Hi -
                                          Tech Erectors, 168 Wn.2d 664, 668, 230 P. 3d 583

 2010).


          Here,   jury   instruction 2   clarified     WFS   interrogatory    1.    Jury instruction 2 stated in part:

           The Applegates] also claim that [ WFS] breached its construction loan agreement
          with the [ Applegates] by failing to properly inspect the [ home] while it was under
          construction     to   make     sure   that   amounts     requested       by [   HHD]   for building the
           home] were proper.



                                                              11
No. 43043 -6 -II




CP   at   2699. WFS     interrogatory     1    asked, "   Did Washington Federal Savings ( "WFS ") breach its


contract    to   provide a construction        loan to the Applegates ?" CP at 2739.


           Jury instruction 2 makes clear that the claim against WFS was that WFS failed to honor

the terms of its contract by failing to properly inspect the home and properly manage and

distribute the construction loan principal to HHD. Thus, jury instruction 2 resolved any

ambiguity within WFS interrogatory 1 by clarifying that interrogatory' s meaning. For this

reason, the instructions were legally sufficient because the jury instructions allowed the

Applegates to argue their theory of the case, were not misleading, and when taken as a whole,

properly informed the jury of the applicable law.

           Because the jury instructions were legally sufficient, we review their specific wording for

an abuse of       discretion. Bodin, 130 Wn.2d            at   732; Singh, 151 Wn.   App.   at   151.   Here, the


difference between WFS interrogatory 1' s wording and the Applegates' requested alternative

was not significant enough to make the trial court' s decision to choose the former manifestly

unreasonable. Thus, the trial court did not abuse its discretion in deciding to word the legally

sufficient WFS interrogatory 1 as it did.

B.         Exclusion ofFloberg

           The Applegates next argue that the trial court erred by excluding Floberg' s expert

testimony. We disagree.

           The trial court is in the best position to determine appropriate discovery sanctions, and

thus,     we   normally defer to its decision. Magana             v.   Hyundai Motor Am., 167 Wn.2d 570, 583,


220 P. 3d 191 ( 2009).      We will overturn the trial court' s decision to exclude witnesses only for

 abuse of      discretion. Jones   v.   City   of Seattle, 179 Wn.2d 322, 337, 314 P. 3d 380 ( 2013).               A trial




                                                                 12
No. 43043 -6 -II



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

grounds or untenable reasons. Salas, 168 Wn.2d at 668.


       Pierce County Local Rule (PCLR) 26 states the following requirements for cases

operating pursuant to a case schedule:

        d) Scope of Disclosure. Disclosure of witnesses under this rule shall include the
       following information:

                   3) Experts. A summary of the expert' s anticipated opinions and the basis
               therefore and a brief description of the expert' s qualifications or a copy of
               curriculum vitae if available.
         e) Exclusion of Testimony. Any person not disclosed in compliance with this
       rule shall not be called . testify at trial, unless the court orders otherwise for good
                                to
        cause and subject to such conditions as justice requires.


 Emphasis added.)


        Before excluding a witness for a violation of a local rule like PCLR 26, the trial court

must consider, on the record, the three factors from our Supreme Court' s decision in Burnet v.

Spokane Ambulance, 131 Wn.2d 484, 933 P. 2d 1036 ( 1997). Jones, 179 Wn.2d at 338.


Considering   the Burnet   factors   on   the   written order   excluding   a witness   is             2 See Teter
                                                                                             sufficient.




v. Deck, 174 Wn.2d 207, 217, 274 P. 3d 336 ( 2012).


        The first Burnet factor is willfulness. Magana, 167 Wn.2d at 584. A party' s disregard of

a court order without a reasonable excuse or          justification is   considered willful.       167 Wn.2d at


584.




2 Whereas PCLR 26 creates a presumption of exclusion (rebutted by good cause and justice
concerns),  the Burnet factors create the opposite presumption of admission ( rebutted by evidence
of willfulness, prejudice, and the inadequacy of lesser sanctions). Jones, 179 Wn.2d at 343. In

the case of witness exclusion, Our Supreme Court held that Burnet controls over local discovery
rules. Jones, 179 Wn.2d at 344.




                                                          13
No. 43043 -6 -II


          The   second   Burnet factor is   prejudice   to the opposing party.             167 Wn.2d at 584, 587.


Prejudice looks not to whether abusive discovery prevented the opposing party from obtaining a

fair trial, but rather asks whether the abusive discovery prejudiced the opposing party' s ability to

prepare   for the trial. 167 Wn.2d at 589.


          The third Burnet factor requires the trial court to consider lesser available sanctions.

167 Wn.2d at 584, 590. The trial court must impose the least severe sanction that would serve

the underlying      purpose of   imposing   a   discovery   sanction       in the   given case.   167 Wn.2d at 590.


But the   sanctions must not     be too light,   such   that   it   undermines      the   purpose of   discovery.   167


Wn.2d     at   590. " The purposes of sanctions orders are to deter, to punish, to compensate and to


educate."       Wash. State Physicians Ins. Exch. & Ass 'n            v.   Fisons   Corp., 122 Wn.2d 299, 356, 858

P. 2d 1054 ( 1993).      Another purpose of sanctions is to " insure that the wrongdoer does not profit

from the wrong."         Wash. State Physicians Ins. Exch. & Ass' n, 122 Wn.2d at 356.


          Here, the trial court found the three Burnet factors of willfulness, prejudice, and the


inadequacy of lesser sanctions in its written order. The trial court did not abuse its discretion

because the record supports the trial court' s finding that the Applegates committed a willful and

prejudicial discovery violation for which lesser sanctions were inadequate.

          The Applegates' violation of the trial court' s order was the Applegates' second violation

of the trial court' s scheduling orders. The Applegates disclosed Floberg' s identity a month and a

half after the deadline for witness disclosure. Rather than exclude Floberg because of this

deadline violation, the trial court continued the trial to allow HHD to conclude discovery on the

Applegates' new witnesses. The trial court imposed a new discovery cutoff at this time, stating

 in the presence of both parties that the new deadline was " a line in the sand that will not be .. .



                                                            14
No. 43043 -6 -I1



stepped over."       VRP (May, 6, 2011) at 16 -17. Nonetheless, the Applegates failed to disclose

Floberg' s potential opinion until August 31, 2011. 3
           The Applegates' disregard of orders is willful unless the Applegates provide a reasonable


excuse or justification. Here, the single excuse that the Applegates had for failing to timely

disclose Floberg' s opinion was that they did not want to have Floberg travel to King County to

view the original certification and residential construction contract, when they could instead

simply wait until Floberg' s eventual deposition.

           But the dispute over where Floberg would view the original documents began after

August 31, 2011, two        weeks     beyond the   discovery   deadline   of   August 16, 2011. Thus, the trial


court did not abuse its discretion in finding that the second violation was willful because the

record supports this finding. Magana, 167 Wn.2d at 584.

           Second, the Applegates' failure to timely provide HHD with information as to Floberg' s

opinion regarding forgery prejudiced HHD by preventing HHD from properly preparing its case.
The Applegates did not inform HHD which specific documents Floberg would review until

August 18, 2011, and did not tell HHD that Floberg found a potential forgery on one of the

documents until August 31, 2011.




3
    The Applegates argue that the April 14, 2011 notification of Floberg' s identity as a witness
constituted a " summary ofthe expert' s anticipated opinions and the basis therefore" for purposes
of   PCLR 26( d)( 3).     The Applegates' notification stated the following:

            Mr. Floberg is a forensic document examiner. He is expected to testify regarding
            authenticity of signatures and documents submitted by Charles Bucher. CV attached.

 CP   at   3525.   We affirm the trial court' s determination that this does not constitute a sufficient
    summary    of   the expert' s   anticipated opinions and   the basis therefore."    PCLR 26( d)( 3).




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No. 43043 -6 -II



       After learning that Floberg had found a potential forgery, HHD had to consider hiring a

handwriting expert. HHD would also have needed time to prepare for Floberg' s deposition,

depending on his final opinion. Late disclosure of Floberg' s opinion hindered this. Thus, it was

not an abuse of discretion for the trial court to find that the Applegates' discovery violation was

prejudicial to HHD because the record supports this finding.

          Finally, the trial court already granted a continuance due to the Applegates' prior

discovery violation. The Applegates' actions demonstrated that granting yet another continuance

would undermine the purpose of discovery. Monetary sanctions would not account for HHD' s

additional preparation, and would thus, fail to " insure that the wrongdoer does not profit from the

wrong."    Wash. State Physicians Ins. Exch. &      Ass 'n, 122 Wn.2d at 356. Thus, the trial court did


not abuse its discretion by excluding Floberg for the Applegates' second violation of a discovery

order because the record supports its findings on the three Burnet factors.

C.      Exclusion ofDiana Behrens

        The Applegates argue that the trial court erred in excluding Diana Behrens' s testimony

under ER 404( b) because her testimony was properly admissible to prove an absence of mistake

or accident. We disagree.


          We review the exclusion of evidence under ER 404( b) for abuse of discretion. State v.

DeVincentis, 150 Wn.2d 11, 17, 74 P. 3d 119 ( 2003).           A trial court abuses its discretion if its


decision is based on untenable grounds or untenable reasons. Salas, 168 Wn.2d at 668 -69.

          ER 404( b) provides:


          Evidence of other crimes, wrongs, or acts is not admissible to prove the character
          of a person in order to show action in conformity therewith. It may, however, be
          admissible   for   other   purposes,   such   as   proof   of   motive,   opportunity, intent,
          preparation, plan, knowledge, identity, or absence of mistake or accident.


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No. 43043 -6 -II




Evidence of a person' s prior misconduct is admissible only when the party seeking to admit the

evidence ( 1) demonstrates by a preponderance of the evidence that the misconduct occurred, (2)

identifies the    purpose      for the      evidence' s admission, ( 3)    establishes the evidence' s relevance to


proving an element of the charged crime, and ( 4) weighs the evidence' s probative value against

its   prejudicial effect.      State   v.   Gresham, 173 Wn.2d 405, 421, 269 P. 3d 207 ( 2012).                 A party

seeking to introduce evidence under ER 404(b) has the burden of proving the first three of these

elements, and we presume               that   evidence of prior misconduct        is inadmissible. Gresham, 173


Wn.2d     at   421.   Regarding the fourth element, the trial court should balance the probative value

of the evidence against its prejudicial effect on the record before using its discretion to admit

evidence under        ER 404( b).       State v. Gogolin, 45 Wn. App. 640, 645, 727 P.2d 683 ( 1986).

           Here, the trial     court said, "     The   problem   I have is that   all   these things that[] [   Diana] is


saying are simply allegations. They' ve not been proven. They' re just simply her opinion as to
what occurred         in her   situation and never went       to trial."   VRP ( Oct. 6, 2011)       at   62 -63. Diana' s


testimony consisted of allegations about HHD' s alleged wrongs against Diana and her husband

David. David declared that HHD committed no wrongdoing. The Applegates cite nothing that

lends additional support to Diana' s allegations. Thus, this determination by the trial court was

not so unreasonable as to constitute an abuse of discretion.

           If the trial court does not find that a witness' s allegations occurred on a more probable

than not basis, it has not found the first element of the ER 404( b) test. Exclusion of the witness' s

 character testimony is warranted at this point because the party seeking admission of character

 evidence must prove each of the first three elements of the ER 404( b) test before the trial court




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may   admit character evidence.           Gresham, 173 Wn.2d            at    421.   Thus, the trial court did not abuse


its discretion in excluding Diana' s testimony under ER 404( b).

                III. MOOTNESS OF THE TRIAL COURT' S SUMMARY JUDGMENT RULINGS


         The Applegates argue that the trial court erred by granting summary judgment to WFS on

their claims of negligence and breach of fiduciary duty. We do not review this issue because it is

moot.




           A moot case is one which seeks to determine an abstract question which does not rest

upon    existing facts   or rights. "'    State v. G.A.H., 133 Wn. App. 567, 572, 137 P. 3d 66 ( 2006)

 quoting Hansen v. W. Coast Wholesale Drug Co., 47 Wn.2d 825, 827, 289 P. 2d 718 ( 1955)).

We will not review a moot case unless it presents issues of continuing and substantial public

interest, considering ( 1) the     public or private nature of            the issue     presented, (   2) the desirability of

an authoritative determination which will provide future guidance to public officers, and ( 3) the

likelihood that the question will recur. In re Marriage ofHorner, 151 Wn.2d 884, 891 -92, 93

P. 3d 124 ( 2004).


          The jury is the trier   of     fact. Jurgens   v.   Am. Legion, Cashmere Post 64 Inc.,               1 Wn. App.

39, 43, 459 P. 2d 79 ( 1969). Here,          we uphold        the   jury' s   defense   verdicts.   Through a special


verdict form, the jury determined that HHD did not breach its contract with the Applegates,

commit fraud in respect to the draws and billings submitted to the Applegates, or wrongfully


convert the Applegates' funds. Thus, the jury has established as a fact that HHD did not commit

any wrongdoing related to its dealings with the Applegates.

          The Applegates' claims for negligence and breach of fiduciary duty assert that WFS

failed to prevent HHD' s wrongdoing. The jury established as a fact that HHD committed no



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wrongdoing. WFS cannot have failed to properly protect the Applegates from HHD' s

wrongdoing when HHD committed no wrongdoing. Thus, whether the trial court erred in

granting summary judgment in favor of WFS on these claims is an abstract question that does not

rest upon existing facts or rights.

        This moot issue does not present issues of continuing and substantial public interest

because the issue is essentially private in nature, a determination is not necessary to provide

guidance to public officers, and the particular issue raised is unlikely to recur. See Horner, 151

Wn.2d at 891 -92. Thus, we do not review whether the trial court erred by granting summary

judgment to WFS on the Applegates' claims of negligence and breach of fiduciary duty because

the issue is moot.


                                IV. ATTORNEY FEES ON THE CONTRACT


        WFS argues on its cross appeal that RCW 4. 84. 330 required the trial court to award its

attorney fees as the prevailing party under the contract' s attorney fee provision. We agree.

        We review de novo whether a statute authorizes attorney fees. Estep v. Hamilton, 148

Wn.   App.   246, 259, 201 P. 3d 331 ( 2008).      RCW 4. 84. 330 states the rule for attorney fees in any

action on a contract:



        In any   action on a contract ...   where such contract or lease specifically provides
        that attorneys' fees and costs, which are incurred to enforce the provisions of such
        contract or lease, shall be awarded to one of the parties, the prevailing party,
        whether he or she is the party specified in the contract or lease or not, shall be
        entitled    to   reasonable   attorneys'     fees in addition to costs and necessary
        disbursements.


                   As used in this section " prevailing party" means the party in whose favor
        final judgment is rendered.




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Where RCW 4. 84. 330 applies, an attorney fee award is mandatory. Singleton v. Frost, 108

Wn.2d 723, 728 -29, 742 P. 2d 1224 ( 1987).     RCW 4. 84. 330' s statement that attorney fees are

reciprocal "[   i]n any action on a contract" applies to any action in which a person alleges that

another has contract liability. Herzog Aluminum, Inc. v. Gen. Am. Window Corp., 39 Wn. App.

188, 197, 692 P. 2d 867 ( 1984)..


        RCW 4. 84. 330 supports awarding attorney fees to a prevailing party under a contractual

provision whenever the party- opponent would have been entitled to attorney fees as a prevailing

party. Herzog Aluminum, Inc., 39 Wn. App. at 196 -97. But a contractual provision that

authorizes attorney fees for enforcement of a contract authorizes attorney fees only for claims

directly related to the contractual document containing that provision. Boguch v. Landover

Corp., 153 Wn. App. 595, 619 -20, 224 P. 3d 795 ( 2009).

        Here, the Applegates sued to enforce the contract against WFS, and the jury returned a

defense verdict on the contract claim. Had the Applegates prevailed on their contract claim, the

Applegates would have been entitled to attorney fees under RCW 4. 84. 330. Thus, RCW

4. 84. 330 entitles WFS to attorney fees as the prevailing party on the contract claim. See Herzog

Aluminum, Inc., 39 Wn. App. at 196 -97.

         We grant WFS attorney fees because WFS prevailed on the contract claims. But on

remand the trial court must segregate the fees and costs incurred defending against the claims

 directly related to the contractual document containing the attorney fee provision from the fees

 and costs incurred litigating other claims in this case. This is unless the trial court finds that the

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




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be   made.'"    Boguch, 153 Wn. App. at 620 ( quoting Mayer v. City ofSeattle, 102 Wn. App. 66,

80, 10 P. 3d 408 ( 2000)).


                                           ATTORNEY FEES ON APPEAL


A.       The Applegates


         The Applegates request attorney fees on appeal, pursuant to RCW 4. 84. 330. Because the

Applegates have not prevailed, they are not a prevailing party entitled to attorney fees under

RCW 4. 84. 330.


B.       HHD


         HHD        requests   attorney fees   on appeal,   citing only RAP 18. 1.   RAP 18. 1( b) requires a


party to submit argument and citation to authority entitling it to attorney fees on appeal.
Wachovia SBA          Lending, Inc.   v.   Kraft, 165 Wn.2d 481, 493, 200 P. 3d 683 ( 2009). HHD cited


only RAP 18. 1, and provided no argument regarding attorney fees in its brief. Thus, we deny
HHD' s request for attorney fees.

C.        WFS

          WFS       requests   attorney fees   on appeal under    RAP 18. 1.   Where a prevailing party is

entitled to attorney fees below, they are entitled to attorney fees if they prevail on appeal.

Sharbono       v.   Universal Underwriters Ins. Co.,        139 Wn. App. 383, 423, 161 P. 3d 406 ( 2007).

WFS was entitled below to attorney fees incurred defending against the claims directly related to

the contractual document containing the attorney fee provision, and WFS has prevailed on

appeal. Thus, WFS is entitled to attorney fees incurred defending against the Applegates' appeal

 of their claims directly related to the contractual document containing the attorney fee provision,




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subject to compliance with RAP 18. 1 and RCW 4. 84. 330. The commissioner of our court will

make an appropriate award upon proper application. RAP 18. 1( f); RCW 4. 84. 330.

        We affirm the jury verdict and dismiss the Applegates' challenge to the trial court' s

summary judgment rulings as moot. We reverse the trial court' s ruling denying attorney fees to

WFS and remand for an award of attorney fees, limited to fees and costs incurred defending

against the Applegates' contract action. Finally, we grant WFS attorney fees on appeal, limited

to fees and costs incurred defending against the Applegates' appeal of their claims directly

related to the contractual document containing the attorney fee provision, subject to compliance

with RAP 18. 1 and RCW 4. 84. 330.


        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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