       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

REED JASSMANN,                      )
                                    )       No. 74964-1-1
                   Appellant,       )
                                    )       DIVISION ONE
             v.                     )
                                    )
NORTHWEST INTERIORS & DESIGN, )
LLC, a Washington limited liability )
company; RANDY LEE OLIVER and       )
MARCIE OLIVER, husband and wife; )          UNPUBLISHED OPINION
and AMERICAN CONTRACTORS            )
INDEMNITY COMPANY, Bond             )       FILED: March 27, 2017
account no. 100238900,              )
                                    )
                   Respondents.     )
                                    )

      BECKER, J. — Appellant contends the trial court should have awarded him

the attorney fees he incurred in enforcing a settlement agreement with his former

employer. Neither the settlement agreement nor statutes cited by the appellant

authorize an award of attorney fees for enforcing an agreement in which the

employee waived all claims and the employer admitted none of the allegations.

We affirm.

      Appellant Reed Jassmann sued his former employer, Northwest Interiors

& Design LLC, along with its owners and its surety. Jassmann alleged that the

company did not pay wages and commissions owed to him for work performed

on construction projects in 2014.
No. 74964-1-1/2

      The defendants denied Jassmann's claims. They alleged counterclaims

against Jassmann for fraudulent misrepresentation and unjust enrichment. Trial

was scheduled for October 19, 2015.

      According to unchallenged findings of fact and conclusions of law, the

parties reached a settlement on October 8, 2015. On that date, at 10:51 a.m.,

the defendants made an offer of settlement to Jassmann. The offer was for

payment to Jassmann in the amount of $15,000, with the following terms: "agree

to a settlement for $15k. The normal waiver of any and all claims, known or

unknown, the parties enter into this to settle the dispute without admission to any

allegations, payment in thirty days." About an hour later, at 11:59 a.m.,

Jassmann accepted the offer, stating "so the offer is accepted."

      At 12:57 p.m., Jassmann sent a draft settlement agreement to the

defendants. His draft included an attorney fee clause. A right to attorney fees

was not a term that had previously been discussed, and it never became one of

the terms of the agreement.

      The defendants had second thoughts about how much time they wanted

before they would make full payment of the settlement amount to Jassmann. At

3:31 p.m., they proposed to modify the payment term so their last payment to

Jassmann would not occur until more than one year later. Jassmann did not

accept the proposed modification. He responded by asking the defendants to

"honor the deal."

       The defendants did not pay in 30 days. They took the position that an

enforceable settlement agreement did not exist because Jassmann had
No. 74964-1-1/3

countered their offer. Jassmann insisted that an agreement was formed upon his

acceptance at 11:59 a.m., enforceable as a CR 2(a) agreement. He told them he

expected the court would award him the attorney fees he would incur if he had to

enforce it.

       On October 21, 2015, Jassmann moved to enforce the settlement. The

defendants opposed the motion. Litigation continued for several months.

Jassmann continued to incur attorney fees, allegedly more than $13,000 by

November 10, 2015, and more than $20,000 by February 11, 2016.

       On February 9, 2016, the court resolved the dispute after an evidentiary

hearing. The court concluded that an enforceable settlement agreement was

formed by the parties at 11:59 a.m. on October 8, 2015, on the terms then stated:

a settlement of $15,000 by November 9, 2015; without admission to any

allegations; and the normal waiver of any and all claims.

       Jassmann argued that he was entitled to an award of attorney fees under

RCW 49.48.030 and RCW 49.46.090. The court concluded that neither party

was entitled to attorney fees under the settlement agreement. The court

reserved ruling on Jassmann's claim that he was entitled to an award of the

attorney fees he incurred in litigating after the defendants repudiated the

settlement they agreed to on October 8, 2015.

       On March 14, 2016, the court entered a judgment of $15,000 plus $537.42

in interest against Northwest Interiors and its owners. The court crossed out

those portions of Jassmann's proposed judgment that requested attorney fees

and a judgment against the surety.


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No. 74964-1-1/4

      Jassmann appeals. He contends the trial court erred in denying his

request for an award of the attorney fees he incurred in enforcing the settlement

agreement after October 8, 2015.

      Whether a contract or statute authorizes an award of attorney fees is a

question of law reviewed de novo. McGuire v. Bates, 169 Wn.2d 185, 189, 234

P.3d 205(2010). Washington generally follows the "American rule," where each

party in a civil action pays its own attorney fees and costs. Cosmo. Eng'g Grp.,

Inc. v. Ondeo Deqremont, Inc., 159 Wn.2d 292, 296, 149 P.3d 666(2006). A

party may recover attorney fees when authorized by statute, a recognized ground

of equity, or agreement of the parties. Niccum v. Enquist, 175 Wn.2d 441,446,

286 P.3d 966 (2012).

      The terms of the settlement agreement did not provide for attorney fees.

Jassmann contends that because his claims were for unpaid wages, he has a

statutory entitlement to attorney fees under RCW 49.48.030, RCW 49.46.090,

and RCW 49.52.070. An award of attorney fees under RCW 49.48.030,for

example, requires that the employee "is successful in recovering judgment for

wages or salary owed to him."

      The problem with Jassmann's argument is that he did not recover a

judgment for a wage claim for wages or salary owed to him. One of the terms of

the settlement agreement was "normal waiver of any and all claims." Another

was "without admission to any allegations."

      Normal contract principles apply to the interpretation of a CR 2A

settlement agreement. Morris v. Maks,69 Wn. App. 865, 868-69, 850 P.2d


                                        4
No. 74964-1-1/5

1357, review denied, 122 Wn.2d 1020(1993); Condon v. Condon, 177 Wn.2d

150, 162, 298 P.3d 86(2013). In Washington, the court determines the intent of

the parties based on the objective manifestations of the agreement, rather than

any unexpressed subjective intent of the parties. Condon, 177 Wn.2d at 162. It

is the duty of the court to declare the meaning of what is written, and not what

was intended to be written. Condon, 177 Wn.2d at 162.

       The plain language of the settlement agreement stated that Jassmann

waived all claims, including his wage claims—not that he prevailed on them.

Jassmann's request to include an attorney fee clause as a term of the settlement

did not become part of the agreement. The e-mails that formed the agreement

did not objectively manifest the parties' intention that Jassmann would be entitled

to attorney fees incurred in enforcing the agreement.

       Parol evidence is not admitted for the purpose of showing intention

independent of the instrument. Berg v. Hudesman, 115 Wn.2d 657,669, 801

P.2d 222(1990). Jassmann's complaint and his declaration are not admissible

to show that the underlying dispute was a wage claim, as this would contradict

the term of the agreement stating that his claims were waived. Nor are they

admissible for the purpose of showing that the intent of the parties, separate from

what is shown by the agreement, was to settle a wage claim.

       Jassmann makes a belated argument that the defendants' offer of

settlement should be treated like an offer of judgment. When a defendant makes

an offer of judgment under CR 68 and does not expressly state that the offer

includes attorney fees, a plaintiff may obtain an award of attorney fees in addition


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No. 74964-1-1/6

to the amount offered in judgment if the relevant fee statute does not define

attorney fees as costs. See e.g., Lietz v. Hansen Law Offices, PSC, 166 Wn.

App. 571, 271 P.3d 889 (2012). Because the outcome in such a case turns on

the word "costs" in CR 68, we do not see the CR 68 cases as analogous.

Instead, we rest our decision on the settlement language. It was agreed that

Jassmann waived all claims and the defendants admitted none of his allegations.

His claimed entitlement to an award of attorney fees did not survive that

agreement. The trial court correctly refused Jassmann's request for an award of

attorney fees.

       Jassmann contends that the court should have entered a judgment

against American Contractors Indemnity Company under RCW 18.27.040. This

statute requires that a contractor file a bond issued by a surety to secure

payment to persons "performing labor." RCW 18.27.040(1). Because Jassmann

cannot establish that the judgment of $15,000 paid him for performing labor, the

trial court correctly refused to enter a judgment against American Contractors

Indemnity Company.

       The defendants request attorney fees on appeal for having to defend

against a frivolous appeal. Jassmann's appeal is not frivolous. The request is

denied.




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No. 74964-1-1/7

      Affirmed.




WE CONCUR:



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