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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

SAK & ASSOCIATES, INC.,                          No. 72258-1-1
a Washington corporation,

       Appellant/Cross Respondent,

       v.



FERGUSON CONSTRUCTION, INC.,                     PUBLISHED OPINION
a Washington corporation,
                                                 FILED: August 10, 2015
       Respondent/Cross Appellant.


       Verellen, A.C.J. — Subcontractor SAK &Associates contends general

contractor Ferguson Construction, Inc. wrongfully terminated their contract by invoking

an illusory termination for convenience clause and failing to give proper notice of the

termination. There are no Washington cases addressing such clauses in private

construction contracts. A termination for convenience clause is enforceable when

supported by adequate consideration. Here, partial performance provides adequate

consideration. Ferguson also gave SAK adequate notice of termination.

      Accordingly, we affirm.

                                         FACTS


       In April 2012, SAK entered into a fixed sum contract with Ferguson to provide

concrete materials and paving services for the construction of hangars at an airport.

SAK performed work under the subcontract from April 18, 2012 to July 27, 2012.
No. 72258-1-1/2



        On July 27, 2012, Ferguson terminated SAK from the project. The notice of

termination referred to "phasing restrictions, site logistics, and basic convenience," citing

section 7 of the subcontract.1 Section 7 permits Ferguson to terminate the subcontract

"for its own convenience and require Subcontractor to immediately stop work."2 Upon

termination, Ferguson paid SAK $181,044.77 for the work actually performed.

        On May 10, 2013, SAK sued Ferguson for damages of $226,650.68, alleging that

Ferguson breached the subcontract by unilaterally terminating "without cause."3

Ferguson moved for summary judgment based on SAK's failure to comply with the

claim procedures set forth in the subcontract. The trial court denied that motion, as well

as Ferguson's subsequent motion for reconsideration.

        SAK filed a motion for partial summary judgment, contending the termination for

convenience provision was invalid as a matter of law. The trial court denied the motion.

Ferguson then filed its second motion for summary judgment, contending it properly

exercised the termination for convenience provision in the subcontract, which was

enforceable as a matter of law. The trial court granted the motion and dismissed SAK's

claims with prejudice. The trial court also awarded Ferguson $44,114.25 in attorney

fees.

        SAK appeals the court's order granting summary judgment and the attorney fee

award. Ferguson cross appeals the amount of the attorney fee award.




        1 Clerk's Papers (CP) at 104.
        2 CP at 94.
        3 CP at 2.
No. 72258-1-1/3



                                        DISCUSSION

       SAK contends that the trial court erred because the termination for convenience

clause is an illusory promise and therefore is unenforceable. SAK also contends that

there are genuine issues of material fact whether the notice of termination was

reasonable, asserting that Ferguson's notice was "false and pretextual."4 We find no

merit in either contention.

       Summary judgment is proper when there is no genuine issue about any material

fact and the moving party is entitled to judgment as a matter of law.5 We construe the

evidence in the light most favorable to the nonmoving party and review the ruling on the

record before the trial court at the time of the summary judgment motion.6

                              Termination for Convenience Clause

       The concept of "termination for convenience" in contracts dates back to the

American Civil War. To avoid costly military procurements when changes in war-time

technology or cessation of conflict rendered them unnecessary, the federal government

included termination for convenience clauses in its contracts.7 Under certain

circumstances, the government terminated wartime contracts that were no longer

necessary and settled with the contractor for partial performance.8 Today, termination



       4 Appellant's Br. at 17.
       5 CR 56(c).
      6 Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); RAP 9.12;
Wash. Fed'n of State Emps.. Council 28 v. Office of Fin. Mgmt.. 121 Wn.2d 152, 163,
849P.2d 1201 (1993).
       7 Krvoowksi Constr. Co. v. United States, 94 F.3d 1537, 1540 (1996).
       8 Id.
No. 72258-1-1/4



for convenience clauses are required by regulations for most government procurement

contracts.9

      The use of termination for convenience clauses has migrated to the private

setting, notably in construction and high technology contracts.10 Most standard form

construction contracts include such clauses.11 There is very limited authority

addressing termination for convenience clauses in private contracts.12

       Here, the subcontract provides for termination for convenience:

             In addition to the rights listed above, Contractor may, after
      providing Subcontractor with written notice, terminate (without prejudice to
      any right or remedy of Contractor) the Subcontract, or any part of it, for its
      own convenience and require Subcontractor to immediately stop work. In
      such event, the Contractor shall pay the Subcontractor for the work
      actually performed in an amount proportionate to the total Subcontract
      price. Contractor shall not be liable to the Subcontractor for any other



       9]d at 1541.
      10 Ryan P. Adair, Limitations Imposed by the Covenant of Good Faith and Fair
Dealing upon Termination for Convenience Rights in Private Construction Contracts,
7 J. Am. C. Construction Law. 127,127-28 (2013).
        11 jd. at 161 ("several standard form construction contracts . . . provide insight
into the customary treatment of [termination for convenience] clauses," referencing the
American Institute of Architects, the Associated General Contractors of America, the
American Subcontractors Association, the Engineers Joint Contract Documents
Committee, and the Design-Build Institute of America).
        12 Id. at 128. The extensive jurisprudence governing termination for convenience
provisions in government contracts is grounded in the particular role played by
government agencies. But "the case-law supporting such a broad right in federal
contracts obviously is of limited value when interpreting a contract between private
parties. . . . [T]he federal government stands in a position entirely uncomparable to that
of a private person." Questar Builders. Inc.. v. CB Flooring. LLC, 410 Md. 241, 271, 978
A.2d 651 (2009); see also Vila & Son Landscaping Corp. v. Posen Constr.. Inc., 99 So.
3d 563, 567 (2012) ("[W]e find limited value in these federal procurement cases and
look instead to common law contract principles as articulated by Florida's courts."). We
do not find the federal case law on government contracts helpful in analyzing the private
contract issues presented in this appeal.
No. 72258-1-1/5



       costs, including anticipated profits on work not performed or unabsorbed
       overhead.[13]

       SAK argues that this clause is an invalid illusory promise and that Ferguson

breached the subcontract by invoking the clause.14 In Washington, whether a promise

is illusory generally turns on whether there is adequate consideration.

       An enforceable contract requires consideration.15 "If the provisions of an

agreement leave the promisor's performance entirely within his discretion and control,

the 'promise' is illusory. Where there is an absolute right not to perform at all, there is

an absence of consideration."16 Thus, if a promise is illusory, there is no consideration

and no enforceable obligation.17 Washington courts "will not give effect to

interpretations that would render contract obligations illusory."18

       In construction contracts, consideration usually consists of reciprocal promises of

the contractor and the owner, or the subcontractor and the general contractor, to




       13 CP at 94 (emphasis added).
       14 Ferguson contends that SAK's argument that the contract is illusory actually
defeats its breach of contract claim because if the contract is unenforceable, there can
be no breach. But SAK does not appear to argue that the clause renders the entire
contract invalid, just that the termination for convenience clause is illusory and therefore
unenforceable.

       15 King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d 160 (1994).
       16 Felice v. Clausen, 22 Wn. App. 608, 611, 590 P.2d 1283 (1979).
      17 Omni Group, Inc. v. Seattle-First Nat'l Bank, 32 Wn. App. 22, 24-25, 645 P.2d
727(1982).
     18 Taylor v. Shigaki, 84 Wn. App. 723, 730, 930 P.2d 340 (1997); see also
Kennewick Irrigation Distr. v. United States. 880 F.2d 1018, 1032 (9th Cir. 1989)
("'Preference must be given to reasonable interpretations as opposed to those that are
unreasonable, or that would make the contract illusory.'" (quoting Shakev's Inc. v.
Covalt, 704 F.2d 426, 434 (9th Cir. 1983))).
No. 72258-1-1/6



perform work and to pay for that work.19 The form construction contract provisions

governing compensation upon a termination for convenience are particularly varied. For

example, American Institute of Architects (AIA) form A201 (2007) generously includes

compensation for overhead and profit on work not completed.20 Because it is so

favorable to the terminated contractor, this AIA compensation provision "is frequently

revised or negotiated out of the final contract documents."2122 Other form contracts,

such as the Design-Build Institute of America document 530 (2d ed. 2010), contemplate

one fee to be paid for termination before commencement of work and a different fee

after commencement of work "endors[ing] the principle that partial performance may

provide consideration in support of broader termination for convenience rights."23 It is

also clear that some termination for convenience clauses provide only for proportionate

payment for the work performed through the date of termination.24

       SAK specifically contends that because the termination for convenience clause

allows Ferguson to terminate the contract at its discretion, it lacks consideration and is




       19 Adair, supra, at 130.
       20 Id. at 161.
       21 Stephen M. Seeger & Ben Patrick, Terminations for Convenience—"You Want
Me to Pay You What?", Address at the American Bar Association Forum on the
Construction Industry 2013 Midwinter Meeting 24 (Jan. 31 & Feb. 1, 2013),
http://www.imageserve.com/naples2013/papers/WorkshopB.pdf.
      22 Notably here, the owner and Ferguson modified their AIA A-201 termination for
convenience clause to delete any overhead or profit for work not completed. See CP at
83.

       23 Adair, supra, at 163.
     24 See id. at 141-42 ("Monetary consideration may be furnished by either
payment of damages or partial performance.").
No. 72258-1-1/7



therefore illusory and unenforceable. Because partial performance provides adequate

consideration, we disagree.

       Agreements that permit one party to cancel or terminate the undertaking are not

illusory if there is some restriction upon the power to terminate.25 Generally, the right to

cancel or terminate is not illusory where it can be exercised only upon the occurrence of

specified conditions, such as providing notice.26 Williston on Contracts observes that

"the tendency is to interpret even a slight restriction on the exercise of the right of

cancellation as constituting a legal detriment sufficient to satisfy the requirement of

consideration!,] for example,. .. upon written notice."27 While some courts have upheld

termination for convenience clauses based upon written notice requirements,28 others

cast doubt upon the adequacy of consideration resulting from a notice provision.29

Here, the contract provides for termination for convenience immediately upon written

notice of termination. We need not determine whether the written notice requirement

provides adequate consideration for the termination for convenience clause.

       It is well recognized that partial performance provides adequate consideration for

enforcement of what otherwise might be an illusory provision granting unilateral control



       25 Omni Group, 32 Wn. App. at 28.
       26 jd\
       27 3 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts
§ 7.13, at 316-19 (4th ed. 2008).
      28 See Vila & Son, 99 So. 3d at 568 (provision requiring written notice in a
termination for convenience clause provided sufficient consideration to prevent the
promise from being illusory under Florida law) (cited here by trial court).
       29 See Questar Builders, 410 Md. at 279 n.24 ("We decline to speculate whether
a contract reserving the right to terminate for any reason, upon two days' notice, would
be enforceable.").
No. 72258-1-1/8



to one party.30 We are not faced with an attempt to invoke a termination for

convenience clause before the commencement of any work or only after a nominal

amount of work. Here, SAK completed 24 percent of the project, and Ferguson paid a

proportionate amount of the fixed contract price. This level of partial performance

provides adequate consideration. Accordingly, SAK fails to establish the termination for

convenience provision is illusory for lack of consideration.

       Although not argued by SAK, some courts read an implied covenant of good faith

and fair dealing into a contract that grants one party the discretionary authority to

determine a contract term.31 And some jurisdictions read a duty of good faith and fair

dealing as a limit upon the exercise of a termination for convenience provision.32 "But

covenants of good faith and fair dealing do not trump express terms or unambiguous

rights in a contract."33 Rather, "as a matter of law, there cannot be a breach of the duty

of good faith when a party simply stands on its rights to require performance of a


        3013 Sarah Howard Jenkins, Corbin on Contracts § 68.9, at 247-48 (rev. ed.
2003) ("The reservation of such a power neither invalidates the contract nor renders a
promise given as consideration illusory. As long as the party with the reserved power to
terminate is irrevocably bound for any period of time or has materially changed any of
its legal relations or otherwise rendered some performance capable of operating as a
consideration, consideration has been given and the other's promise is enforceable.");
Adair, supra, at 142 ("Partial performance accomplishes the same as payment of
damages.").
       31 Myers v. State. 152 Wn. App. 823, 828, 218 P.3d 241 (2009).
      32 Although not cited by the parties, in Questar Builders. 410 Md. at 279, the
Maryland Court of Appeals held that a termination for convenience provision in a private
subcontract is limited by the duty of good faith and fair dealing. But the clause was
exercised when no work had been performed by the subcontractor, and it appears that
Maryland law on illusory promises is not consistent with Washington law. See also Vila
& Son, 99 So. 3d at 568-69 (rejecting theory that duty of good faith restricts exercise of
termination for convenience clause).
       33 Myers, 152 Wn. App. at 828.
No. 72258-1-1/9



contract according to its terms."34 In Washington, the only case touching on the subject

held that the implied duty of good faith and fair dealing does not restrict the use of an

express and unambiguous termination for convenience clause.

       In Myers v. State, the court held that the Department of Social & Health Services

(DSHS) properly terminated a contract with a caregiver based on a termination for

convenience provision, recognizing that the covenants of good faith and fair dealing do

not trump express contract terms.35 The contract allowed DSHS to terminate for default

upon a finding of neglect. It further provided that "[i]f it is later determined that the

[contractor was not in default, the termination shall be considered a termination for

convenience."36 DSHS terminated the caregiver's contract after an investigation

resulted in a finding that she neglected a vulnerable adult. The neglect finding was

ultimately reversed and the caregiver sued DSHS for breach of contract, but the trial

court dismissed the claim.37

       This court affirmed, upholding the termination for convenience provision and

concluding that "the plain language ofthat provision authorizes termination even when a
finding of neglect is later determined to be unfounded."38 The court recognized that
"[t]he contract grants DSHS broad authority to terminate the contract, regardless of the
outcome of the administrative process," explaining:




       34 Badoet v. Security State Bank, 116 Wn.2d 563, 570, 807 P.2d 356 (1991).
       35 152 Wn. App. 823, 828, 218 P.3d 241 (2009).
       36 Id,
       37 id, at 827.
       38 Id. at 829.
No. 72258-1-1/10



               Ms. Myers makes a persuasive case that she, essentially, did
       nothing wrong here. Indeed, the administrative process vindicated her.
       She, however, ignores the termination for convenience provision of her
       contract and offers no statute or administrative rule with which it might
       conflict. She raises questions of fact. But they are not material questions
       of fact. DSHS had authority under this contract to terminate the contract
       on a finding of neglect by Adult Protective Services and, failing that, it
       could do so for convenience. The trial court properly dismissed her suit on
       summary judgment.'39!

       Similarly here, Ferguson properly invoked the termination for convenience clause

to which both parties agreed. SAK argues that Myers should be distinguished because

it involved services for an indefinite period of time and because Myers did not expressly

contest the validity of the termination for convenience clause. But Myers expressly

holds that an unambiguous termination for convenience clause is not limited by the

implied duty of good faith and fair dealing.

       Enforcing the termination for convenience provision here is also consistent with

our focus upon "the objective manifestations" of intent of the parties.40 Ferguson and

SAK objectively manifested their intent that the contract may be terminated for

convenience by Ferguson upon written notice, requiring only a proportionate payment of

the contract price. A proportionate payment based upon the amount of work completed

in a fixed price contract necessarily includes a proportionate share of any overhead and

profit that SAK built into the negotiated fixed price. The parties could have negotiated

other limitations or terms of payment upon a termination for convenience, but they did

not do so. There is no assertion that the contract is procedurally or substantively




       39 \± at 829-30 (citations omitted).
       40 State v. R.J. Reynolds Tobacco Co., 151 Wn. App. 775, 783, 211 P.3d 448
(2009).



                                               10
No. 72258-1-1/11



unconscionable. The parties partially performed their contract. The implied duty of

good faith and fair dealing does not allow one party to reshape or evade the bargain

that was mutually agreed. On these facts and this briefing, the termination for

convenience clause is not illusory or otherwise unenforceable.

                                   Notice of Termination

       SAK also contends that Ferguson did not give SAK proper notice of the

termination. We disagree.

       "Whether particular notice was reasonable is ordinarily a question of fact for the

jury. But when reasonable minds could reach only one conclusion, the court can

determine reasonableness as a matter of law."41 "Reasonable notice" is "'notice or

information of a fact as may fairly and properly be expected or required in the particular

circumstances."'42

       Section 7 of the subcontract provides for notice of termination for convenience on

written notice:

              In addition to the rights listed above, Contractor may, after
       providing Subcontractor with written notice, terminate (without prejudice to
       any right or remedy of Contractor) the Subcontract, or any part of it, for its
       own convenience and require Contractor to immediately stop work.[43]

Ferguson sent the following notice of termination:

               Ferguson Construction has determined that SAK's services for this
       project are no longer required. Due to overall phasing restrictions, site
       logistics, and basic convenience, it has become apparent that it is in the

      41 Cascade Auto Glass. Inc. v. Progressive Cas. Ins. Co., 135 Wn. App. 760,
767, 145 P.3d 1253 (2006) (citations omitted).
      42 Lanov.Osberg Const. Co., 67 Wn.2d 659, 663, 409 P.2d 466 (1966) (quoting
Black's Law Dictionary 1211 (4th ed. 1951)).
       43 CP at 94.



                                             11
No. 72258-1-1/12



      best interest of the project to complete the site concrete paving with
      Ferguson's own forces. This decision is not based on SAK's work
      performed to date.

              Pursuant to Section 7 of the Subcontract General Conditions, the
      subcontract is terminated, effective immediately. SAK will be
      compensated for work performed based on the agreed upon unit price as
      stated in the Subcontract Agreement.1441

      The termination for convenience clause requires written notice to the

subcontractor, but does not specify the content of the notice. The undisputed facts are

that Ferguson gave such notice. SAK complains that Ferguson's references to phasing,

site logistics, and convenience were merely false and pretextual excuses for Ferguson's

goal of increasing its profits from the project. But as noted above, the termination for

convenience clause is valid so long as a written notice is given and payment for work

performed is made proportionate to the total fixed price of the subcontract. Nothing in

the termination for convenience clause required that the notice state any reason beyond

"convenience."

       SAK's reliance on Lano v. Osbero Construction is misplaced.45 There, the

subcontractor was given notice that it had one business day and a weekend to meet a

list of demands or its contract would be terminated. The court concluded that under the

circumstances, such notice was "patently not enough time to permit a reasonable

attempt to meet the demands."46 But here, the termination was not contingent upon

meeting a list of demands; itwas simply a termination for convenience, which was

contemplated by the parties in the clear language of the contract.


       44 CP at 104.
       45 67 Wn.2d 659, 409 P.2d 466 (1966).
       46 Id. at 664.



                                             12
No. 72258-1-1/13



       SAK also contends that Ferguson's notice was not reasonable because it did not

allow SAK to take action to protect its rights under the contract. SAK argues that the

content of the notice is critical to submitting a timely notice of a claim or dispute.47 But

SAK also acknowledges that there were no defects in performance that gave rise to the

termination. Rather, the termination was simply based on convenience, against which

SAK had no claim. Thus, this argument is without basis. Indeed, the trial court rejected

Ferguson's argument that SAK was required to comply with the contract's claim

requirements.48 At most, SAK had a claim for the proportionate amount it was owed for

the work performed to date, but the notice of termination was sufficient to allow SAK to

make that claim.

                                       Attorney Fees

       SAK argues that the attorney fees award should be vacated because the

summary judgment was improper, but we affirm the summary judgment. Ferguson

cross appeals the attorney fees award, contending that the trial court abused its

discretion by reducing Ferguson's requested fees when it was the substantially

prevailing party. We disagree.



       47 SAK refers to section 20 of the subcontract, which requires that the
subcontractor give notice of a claim or dispute within 14 days of the occurrence of a
problem, dispute, claim or delay event, or the claim will not be reimbursed.
        48 Ferguson asserts that the trial court's ruling on this issue (raised in Ferguson's
first summary judgment motion) was error and offers this as another basis upon which
to affirm the trial court. But Ferguson neither cross appealed nor assigned error to this
ruling, which rejected Ferguson's argument that SAK's failure to comply with the notice
and claim requirements barred SAK's lawsuit. Thus, this argument is not within the
scope of our review. But see Realm v. City of Olvmpia, 168 Wn. App. 1, 8, 277 P.3d
679 (2012) (holding that contractor waived right to sue city by failing to comply with
notice provisions in the contract that were precondition to litigation against the city).


                                              13
No. 72258-1-1/14



       We review the reasonableness of an award for attorney fees for an abuse of

discretion.49 The party seeking fees bears the burden of proving the reasonableness of

the fees.50 Using the lodestar method, the trial court "must first determine that counsel

expended a reasonable number of hours in securing a successful recovery for the

client."51 This necessarily "requires the court to exclude from the requested hours any

wasteful or duplicative hours and any hours pertaining to unsuccessful theories or

claims."52

       Here, the contract's fee provision states, "Ifeither party becomes involved in

litigation or arbitration arising out of this Subcontract or the performance thereof, the

court or arbitration panel in such litigation or arbitration or in a separate suit, shall award

attorney fees to the substantially prevailing party."53 Ferguson requested $58,819.72,

the total amount of attorney fees billed. The trial court found that "Ferguson is the

substantially prevailing party pursuant to the subcontract sec[tion] 40 and that most of

Ferguson's fees are reasonable under the lodestar methodology."54 The court ordered

SAK to pay Ferguson attorney fees in the amount of $44,114.25.

       SAK argued that the fee should be reduced to account for Ferguson's

unsuccessful motion for summary judgment and motion to reconsider, but it is not clear


     49 Cook v. Brateng, 180 Wn. App. 368, 375, 321 P.3d 1255 (2014) (quoting
Gander v. Yager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012)).
       50 Mahler v. Szucs. 135 Wn.2d 398, 434, 957 P.2d 632 (1998).
       51 Id,
       52 jd
       53 CP at 102.
       54 CP at 442 (citing Berrvman v. Metcalf, 177 Wn. App. 644, 312 P.3d 745
(2014)).



                                              14
No. 72258-1-1/15



from the record that this is the basis upon which the trial court reduced the requested

fees. The trial court's order simply states that SAK is ordered to pay attorney fees "in

the amount of $44,114.25, given the proportional factor(s) as noted in Berrvman v.

Metcalf."55

       The trial court's offered reason of "proportionality" under Berrvman— the

relationship between the amount at stake and the amount of fees—is not compelling

here. But Ferguson fails to show that the trial court's fee award was an abuse of

discretion. The amount the court ordered here was approximately $14,000 less than

the amount requested, a discount of one-fourth of the total fees. Given that Ferguson

did incur fees on unsuccessful motions for summary judgment and reconsideration,

Ferguson fails to show that this discount was unreasonable and amounted to an abuse

of discretion.


       Ferguson contends that because there was only one claim, the breach of

contract claim upon which it ultimately prevailed, it was entitled to all fees incurred in

defending against that claim. But, as noted above, Washington case law recognizes

that a reasonableness determination requires the court to exclude "any hours pertaining

to unsuccessful theories or claims."56 The summary judgment motions were based on

two different theories, the first of which was unsuccessful. Accordingly, the court in its

discretion could properly exclude the fees incurred on that unsuccessful theory.

Ferguson fails to establish that the fee award was an abuse of discretion.




       55 CP at 442.
       56 Mahler. 135 Wn.2d at 434 (emphasis added).



                                              15
No. 72258-1-1/16



       Ferguson also requests fees on appeal under RAP 18.1, as provided by the

contract. When a contract provides for an attorney fee award in the trial court, the party

prevailing before this court may seek reasonable attorney fees incurred on appeal.57

Because Ferguson is the prevailing party, we award its reasonable fees on appeal upon

compliance with RAP 18.1.

      We affirm.




WE CONCUR:




                                                     1^^gZL,




      57 First-Citizens Bank & Trust Co. v. Reikow, 177 Wn. App. 787, 800, 313 P.3d
1208(2013); RAP 18.1.



                                            16
