                                                                          FILED
                                                                       JAN. 29,2015
                                                                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

RUSSELL AND DIANE TAYLOR,                    )

husband and wife,                            )         No. 31917-2-III 

                                             )

                     Appellants,             )

                                             )

      v.                                     )
                                             )         UNPUBLISHED OPINION
MATTHEW S. CALENE d/b/a American             )
Sprinkler and Landscape, and OLD             )
REPUBLIC INSURANCE COMPANY,                  )
BOND ACCOUNT NUMBER FB4371,                  )
                                             )

                     Respondent.             )

                                             )


      KORSMO, J. -    After moving into a house built by Matthew Calene, Russell and

Diane Taylor contracted with Mr. Calene to landscape the yard. Being disappointed with

the work done, the Taylors unsuccessfully brought suit against Mr. Calene for breach of

contract and warranty with enhanced damages under the Consumer Protection Act.

Because the record supports the trial court's determinations, we affirm.
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                                         FACTS

      In May 20 I 0, the Taylors contracted with Mr. Calene to landscape the back and
                                                                                                         I
side yards of their newly purchased home in Clarkston at a price of$18,050. The work

included building several retaining walls, pouring concrete steps, building a vinyl fence
No. 31917-2-II1
Taylor v. Calene


around the yard with concrete curbing, installing sprinklers, building an outdoor fire place,

pouring a cement parking area, and preparing planters and garden space.

       After Mr. Calene finished the job, the Taylors refused to make further payments

on the contract because they were dissatisfied due to a number of deficiencies in the

fencing and curbing, as well as a bulge in one of the retaining walls. The Taylors sued

Mr. Calene, alleging that his work violated an implied warranty to meet the standard of

practice for the trade. They sought total damages of more than $22,000 to remove and

replace the fence and retaining walls. They also claimed a per se violation of the

Consumer Protection Act (CPA), arising because Mr. Calene was not bonded at the

time he worked on their yard, in violation of the Contractor Registration Act (CRA).

Chapter 19.86 RCW; Chapter 18.27 RCW.

       At trial, the Taylors presented testimony by three expert witnesses, dealing

respectively with deficiencies in the fence, the concrete curbing, and the retaining walls.

The fencing expert testified to a number of esthetic deficiencies, and stated that he could

not repair them because he would then be unable to warranty the job. The concrete

expert similarly testified to cosmetic deficiencies, stating that he could not repair the

curbing because he did not know how it had been installed. Finally the expert on

retaining walls testified that a portion of the wall was in failure and needed to be repaired,

but that the entire wall should be rebuilt to guard against future failure.




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No. 31917-2-III
Taylor v. Calene


       Conversely, the defense expert testified that Mr. Calene's performance was not

deficient, but merely inferior craftsmanship. He noted that Mr. Calene charged less than

halfwhat the plaintiff's experts quoted to do the same jobs. He testified that the fence

and curbing were otherwise structurally sound. The defense conceded that incorrect

latches were used on the gate and that a portion of the retaining wall was in failure.

       The trial court found that the deficiencies related to levels of craftsmanship rather

than deficient performance and found Mr. Calene liable to replace the gate latches and

repair the retaining wall. However, because the amount owed on the contract to Mr.

Calene exceeded the damages owed the Taylors, the trial court concluded that there was

no prevailing party. It also rejected the Taylors' CPA claim because there had been no

prosecution under the CRA.

       The Taylors timely appealed to this court.

                                        ANALYSIS

       The Taylors present two issues, which we address in order: whether the trial court

correctly determined that there was no prevailing party and whether the trial court erred

in rejecting their claim to damages under the CPA.

       No Prevailing Party

       Generally, a prevailing party is one against whom no affirmative judgment is

entered. Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863,868, 505 P.2d 790 (1973).

The trial judge declined to enter a judgment for either party after finding that the cost to

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No. 31917-2-111
Taylor v. Calene


repair the defects was offset entirely by the debt remaining. Thus, the only matter at issue

here is whether those findings were supported by the evidence presented. Where the trial

court has weighed the evidence, review of factual findings is limited to determining

whether those findings are supported by substantial evidence. Holland v. Boeing Co.,

90 Wn.2d 384, 390, 583 P.2d 621 (1978). "Substantial evidence" is that evidence which

"would persuade a fair-minded person of the truth or correctness of the matter."

Smith v. Emp't Sec. Dep't, 155 Wn. App. 24, 32-33, 226 P.3d 263 (2010).

       Here, the record was replete with evidence of cosmetic flaws in the fence and

concrete curbing. However, there was consensus among the experts that the structure

was sound, as well as evidence that it was unnecessary to replace the fence and curbing.

Similarly, the record contains ample evidence that a portion of the retaining wall needed

to be repaired, but that the wall as a whole was not improperly built. Thus, substantial

evidence supports the trial court finding that the fence and retaining wall needed to be

repaired rather than replaced. The only evidence of repair costs are in the amounts of

$876 to repair the compromised portion of the retaining wall and $300 to replace the

incorrect gate latches. Thus, the finding of compensation owed to the plaintiff of $1,176

is well supported by the evidence.

      Turning to the offset, it is well settled that Washington applies the ruJe in the

Restatement o/Contracts § 346 (1932) under which a party can get judgment for

compensatory damages, less the part of the contract price that has not been paid.

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Taylor v. Calene


Baldwin v. Alberti, 58 Wn.2d 243, 245,362 P.2d 258 (1961). The Taylors conceded at

trial that they owed a balance of $1,183 on the contract. Compensation of $1,176 less a

balance owed of $1,183 is nothing. Accordingly, the record supports the trial court's

determination that no affirmative judgment should be entered and that there was no

prevailing party .

       Consumer Protection Act

       In order to prevail on a claim under the CPA, a plaintiff must prove (1) an unfair

or deceptive act or practice (2) occurring in trade or commerce (3) with a public interest

impact, and (4) an injury to the plaintiff in his or her business or property, (5) caused by

that act or practice. Klem v. Wash. Mut. Bank, 176 Wn.2d 771,782,295 P.3d 1179

(2013). The first two elements may be established by a showing that the act or practice

constitutes a per se violation of the CPA as established by statute. Hangman Ridge

Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 787-88, 719 P.2d 531

(1986). Under the CRA, "the fact that a contractor isfound to have committed a

misdemeanor or infraction under this chapter shall be deemed to affect the public interest

and shall constitute a violation of [the CPA]." RCW 18.27.350 (emphasis supplied).

       Here, the Taylors claim that Mr. Calene committed a per se violation of the CPA

because he was not bonded as required by RCW 18.27.040. 1 However, unlike most per


       ) Mr. Calene disagreed that his bond was not in place. The trial court did not
resolve the dispute.

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No.31917-2-III
Taylor v. Calene


se violations of the CPA, which are defined by the statute at issue, RCW 18.27.350

specifically implicates the CPA only where "a contractor is found to have committed a

misdemeanor or infraction under this chapter." See, e.g., RCW 18.28.185;

RCW 19.09.340; RCW 19.110.170; RCW 63.10.050. We conclude that this language

requires a determination in a prior criminal prosecution or infraction proceeding before it

can be asserted as a per se CPA violation. Because there is no evidence in the record of

either a misdemeanor conviction or a court finding that an infraction was committed, the

trial court properly rejected the Taylors' claim under the CPA.

      The judgment is affirmed.

      A majority of the 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.




WE CONCUR: 




      Brown,A. . .



      Lawrence-Berrey, 1.


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