                                                                           FILED 

                                                                         DEC 12,2013 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


BRUCE A. RICK AND                             )
JOANNE COMINS RICK,                           )        No. 31106-6-11I
                                              )
                     Respondents,             )
                                              )
      v.                                      )
                                              )        UNPUBLISHED OPINION
PROSSER SCHOOL DISTRICT                       )
NO. 116,                                      )
                                              )
                     Appellant.               )

      KORSMO, C.J.       Prosser School District No. 116 (District) appeals a ruling

denying its motion to partially set aside a settlement and recover fees paid under the

agreement. We affirm.

                                         FACTS

      The parties have a long litigation history. The underlying dispute between them

has dragged on for over eight years through multiple cause numbers and legal forums.

This appeal deals only with a small sliver of the years of legal sparring-the 2006

agreement settling Office of the Superintendent of Public Instruction (OSPI) Nos. 2005­

SE-O138 and 2006-SE-0021.
No. 31106-6-111
Rick v. Prosser Sch. Dist.


       The settlement agreement at issue came about through a letter sent to the Ricks'

former attorney on July 31, 2006; the attorney accepted the agreement on the Ricks'

behalf on August 11, 2006. The agreement provided that the Ricks would voluntarily

dismiss OSPI No. 2005-SE-0138 and enroll their son in Prosser School District for the

2006-2007 school year. In exchange, the District would drop OSPI No. 2006-SE-0021,

pay the Ricks' attorney fees up to that point, and provide two years of compensatory

services to the Ricks' son.

       A dispute arose over the settlement terms and the Ricks took the District to

superior court to enforce the attorney fees provision. The court found that the Ricks had

complied with their obligation to dismiss OSPI No. 2005-SE-0138 and ordered payment

of the Ricks' fees under the settlement. The District sought reconsideration, which the

court denied.

       The superior court entered its orders in 2007. Rather than dismissing the case at

that time, the court stayed the proceedings pending resolution of other proceedings. Five

years later, 2012, the District went back to the superior court seeking rescission of the

Ricks' attorney fees award and seeking damages against the Ricks in the form of attorney

fees to be paid to the District. The District claims that the Ricks had breached the 2006

settlement agreement by not enrolling their son in the District and by initiating new

administrative actions that the District believed were substantially similar to the

previously dismissed action.

                                             2

No. 31106-6-II1
Rick v. Prosser Sch. Dist.


           The superior court agreed that the Ricks breached the settlement by not enrolling

their son, but found that the appropriate remedy for the breach was to excuse the District

from having to provide the agreed upon two years of compensatory services. The court

also refused to rescind the attorney fee award because the Ricks had performed in part by

dismissing OSPI No. 2005-SE-0138. The court apparently did not believe that the

subsequent administrative actions filed by the Ricks violated the settlement agreement.

The District thereafter appealed to this court.

                                          ANALYSIS

       The District raises two issues for review. First, the District argues that the court

erred by not excusing the District from all performance based on the breach of the

settlement agreement. Second, it argues that the superior court erred by not awarding the

District equitable damages in the form of attorney fees. We will address these two issues

in turn.

       The District's first argument hinges on whether the lower court erred by not

finding that the Ricks' subsequent administrative suits violated their agreement to dismiss

OSPI No. 2005-SE-0138. A repudiatory breach will not discharge an entire contract

where the breach is not significant enough to amount to a total default. Hemisphere

Loggers & Contractors, Inc. v. Everett Plywood Corp., 7 Wn. App. 232, 234, 499 P.2d

85 (1972); McEachren v. Sherwood & Roberts, Inc., 36 Wn. App. 576,580-81,675 P.2d

1266 (1984). While the superior court never explicitly ruled that the Ricks' failure to

                                                3

No. 31106-6-111 

Rick v. Prosser Sch. Dist. 



enroll their son was a nonmaterial breach, it is apparent from the record that the trial

court viewed the matter as a nonmaterial partial breach.

       We conclude that the court did not err in its refusal to find that the Ricks' filing of

OSPI Nos. 2006-SE-0089 (hereinafter referred to as "2006 action") and 2007-SE-Olll

(hereinafter "2007 action") materially breached the settlement agreement. We agree that

the 2006 action was substantially similar to the original OSPI No. 2005-SE-0138 because

both actions dealt with paying for placement of the Ricks' son during the 2006-2007

school year. However, the 2007 action was not substantially similar to either the original

action or the 2006 action because it dealt instead with a new individualized education

plan and placement of the Ricks' son during a different school year.

       Regardless of the similarities, no breach occurred because the settlement

agreement did not require the Ricks to dismiss their original action with prejudice. The

agreement called for voluntary dismissal, which is generally understood to be without

prejudice. See, e.g., CR 41 (a)( 4). While the agreement's failure to specifY prejudice or

nonprejudice probably creates a latent ambiguity that could justifY opening the contract to

interpretation, we need not reach that problem because the District has not presented any

argument to support interpreting the contract as requiring dismissal with prejudice.

       The District also argues that the equitable doctrine of unclean hands should have

also worked to relieve it of its duty to pay the Ricks' attorney fees. We review equitable

decisions for abuse of discretion; the District does not explain why the ruling amounts to

                                              4

No. 311 06-6-III 

Rick v. Prosser Sch. Dist. 



an abuse of discretion. Esmieu v. Hsieh, 92 Wn.2d 530, 535, 598 P.2d 1369 (1979). The

District simply disagrees with the lower court's decision while asking this court to

substitute its judgment for that ofthe lower court; that is something this court cannot do.

Schnall v. AT&T Wireless Servs., Inc., 171 Wn.2d 260,266,259 P.3d 129 (2011).

       Finally, the District's request for equitable damages fails for the same reason that

its unclean hands argument failed. Equity is not an entitlement; it is a matter of

discretion. See id. The District argues for an award of attorney fees as if it were

appearing before a court of first instance. Because the District does not explain how the

lower court's refusal to exercise its discretion was based on untenable grounds or reasons,

we find that the issue is not properly presented for review.

       Affirmed.

       A majority ofthe panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                                                                              I
                                                                err-
                         i
                                                         Korsmo, C.J.

WE CONCUR:
                                                                                              I
                                                                                              !
                                                                                              I
                                                                                              !
       Brown, J.                                                                              i
                                                                                              t
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