                                                                                           FID
                                                                                             L
                                                                                      UPTOF     PPEALS
                                                                                        D1/ ISIoN tI

                                                                                 2Df JUL - 8 Ai 10: 89

                                                                                  STATE OF WASHINGTON

                                                                                                UTY


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

THE        PORT     OF      TACOMA,       a   Washington                     No. 43940 -9 -II
municipal corporation,



                                     Respondent,


           v.



EDWART D. CAMPBELL, as trustee for the                              UNPUBLISHED OPINION
CPB &L TRUST, and


                                     Appellant,


CHICAGO TITLE INSURANCE
COMPANY,


                                     Defendant.


           HUNT, P. J. — C.P.B. &        L. Trust appeals the superior court' s summary judgment ordering

the release of escrow funds to the Port of Tacoma under an agreement allowing the Port to

recover part of a property' s purchase price to offset environmental cleanup costs in exchange for
                                                                      1
the Trust'      s release   from Model Toxics Control Act (MTCA)          liability. The Trust argues that ( 1)

it could not be held accountable for environmental cleanup costs until an equitable

apportionment of those           costs   under   the MTCA occurred; ( 2) the superior court violated the




1
    ch.   70. 105D RCW.
No. 43940 - -II
          9



Trust'   s equal                      rights   by awarding   the    escrow    funds to the Port; ( 3) the superior court


should not have considered a perjurious declaration about the cost to remediate hazardous


substances on        the property; ( 4)        the spoliation doctrine should have precluded the superior court' s


considering the Port' s requested remediation cost because the Port destroyed other remediation

cost   evidence      when     it   removed contaminated         soil   from the property; (         5) the Port improperly

asserted control over          the escrow        funds; ( 6) the escrow agreement was unenforceable because it


was not supported        by    consideration; (      7) the superior court did not comply with CR 56(h) because

its summary judgment               order   failed to include   each   document      submitted      to the   superior court; ( 8)




the Port' s claim to the escrow funds was untimely because the Port did not make its claim within

the five   years specified         in the   escrow agreement; (       9) the escrow agreement was a guarantee and,


therefore, the Port was required to comply strictly with the agreement' s 21 -day notice and

comment period          in    order   to   claim   the funds; ( 10) the escrow agreement' s notice and comment


period     was   a   condition precedent           to the Port' s   ability   to   recover   the    funds; ( 11) the escrow


agreement' s "       time is of the essence" clause barred the Port' s recovery of the escrow funds; ( 12)


equitable estoppel barred the Port' s hazardous substance remediation claim because it failed to


inform the Trust about hazardous substances discovered on the property in 2009; and ( 13) the

superior court abused its discretion in awarding attorney fees to the Port. The Trust also requests

attorney fees on appeal under the escrow agreement.

           We hold that ( 1)          the Trust failed to preserve its MTCA -
                                                                            related claims because neither


party    asserted     MTCA         claims   below,   and   the superior court did      not address      them; ( 2) the Trust




2
    WASH. CONST.        art   I, § 12.




                                                                2
No. 43940 -9 -II



failed to   support   its   equal protection claim     adequately; ( 3)     the trial court properly considered the

challenged       declaration because its          statements       were   not   perjurious; (   4) because the Port' s


environmental consultants retained samples of             the contaminated soil, there            was no spoliation; ( 5)



because control over the escrow funds is not disputed, the Trust' s argument on this point lacks

merit; (   6) the escrow agreement was supported by consideration in that the Trust allowed a

portion of the Port' s purchase price to be placed in escrow in exchange for the Trust' s release

from MTCA          liability for   removal of     the property' s      hazardous     substances; (   7) even assuming,

without deciding, that the superior court' s summary judgment order erroneously omitted certain

documents, any        error was    harmless; ( 8) the Port'        s claim to the escrow    funds    was   timely; ( 9) the

Trust does       not show    why the   escrow agreement should             be interpreted       as a guarantee; (   10) the


escrow agreement' s notice and comment period was not a condition precedent to the Port' s


ability to   recover   the escrow      funds; (   11) the Trust does not show why the escrow agreement' s

 time is    of   the essence" clause bars the Port from recovering the                escrow     funds; ( 12) the Trust' s


equitable estoppel claim fails because there was no evidence that the Trust suffered any injury

from its inability to comment on the Port' s remediation plan within the specified period; and ( 13)

the Trust fails to support its challenge to the superior court' s attorney fee award to the Port.

Therefore, we affirm the superior court' s grant of summary judgment and award of attorney fees

to the Port.      And we award attorney fees on appeal to the Port as the prevailing party under the

escrow agreement.




                                                               3
No. 43940 -9 -II



                                                      FACTS


                    I. PURCHASE OF CONTAMINATED PROPERTY; ESCROW AGREEMENT


         On May 26, 2006, the Port purchased Tacoma property from Marine View, Inc., to create

a   habitat    mitigation   area.   The Trust   was   a   secured   lienholder   on   the property.    Because the


property had been used as a depository for construction debris and other materials, the Port had

concerns about the potential for hazardous waste and the cost to remediate the contamination; so


it bargained for     an     agreement with   the Trust    and with    Marine View to       place $   500, 000 of the


purchase price      in   escrow.    This agreement allowed the Port to make later claims on the escrow


funds to cover environmental cleanup costs within five years of the closing date.

         The agreement further provided that if the Port discovered hazardous substances on the


property, ( 1)     before beginning remediation work, it must provide notice to the Trust of the

property' s     condition and a cost estimate    for remediating the       condition; (   2) the Trust would have


21 days to comment on the proposal before the Port began its remediation work; and ( 3) any

funds remaining in the escrow account were to be released to the Trust on the fifth anniversary of

the closing date. In exchange for the Trust' s agreement to hold $500,000 of the purchase price in

              the Port agreed to release the Trust from any future environmental aims under the
                                                                                 claims

MTCA.


         In 2009,        the Port discovered metals and petroleum contamination on the property.

During construction on the habitat mitigation project in 2010, the Port discovered that the

contamination was more extensive             than estimated in      2009   and required removal.        Because the


Port had already begun habitat mitigation construction, it immediately removed the contaminated

soil for efficiency reasons because the Port' s contractor and necessary excavation equipment



                                                           4
No. 43940 -9 -II




were already on site, allowing the Port to take advantage of pre -arranged, competitive disposal

rates for the contaminated soil. The Port spent over $5 million to remediate this contamination.


          On May 23, 2011, the Port sent a letter to the Trust stating that it had discovered metals

contamination on       the property     and   demanding   reimbursement of    the $ 500,000 held in escrow.


The Trust opposed release of the funds to the Port because the Trust had received the letter on


May    26, 2011,     which notice    the Port claimed   was one   day   late —one   day after expiration of the

five - ear period for making claims against the escrow account, based on the May 26, 2006
     y

closing date for the property'        s purchase.    The Trust also asserted that the Port had materially

breached the terms of the escrow agreement by failing to comply with the 21 -day notice and

comment period before engaging in the contamination remediation.

                                                    II. LAWSUIT


          In November 2011, the Port filed a complaint against the Trust3 for breach of contract,


seeking    release    of $ 490,   0004 from the escrow account and attorney fees for having to sue to

enforce the escrow agreement.


          The Trust moved for summary judgment, arguing that ( 1) the escrow agreement was a

guarantee requiring strict compliance with its terms, and ( 2) the Port' s failure to comply with the

21 -day notice and comment period requirement nullified the Port' s claim to the escrow funds.

The Port also moved for partial summary judgment, asking the court to rule that the Port' s failure


3
    The Port   also named the parties'         escrow agent, Chicago Title Insurance. Company, in the
complaint.     The Port later dismissed its complaint against Chicago Title after Chicago Title
agreed to deposit the escrow funds in the trial court clerk' s registry.
4
    In October 2011, the Port had         authorized    Chicago Title to   release $   10, 000 from the escrow
account to the Trust for reasons unrelated to this case. Thus, the Port sued for only the remaining
    490,000 of the agreement' s original $500, 000.



                                                          5
No. 43940 -9 -II



to comply with the comment period was not a bar to its recovering the escrow funds because ( 1)

this failure was not a material breach of the escrow agreement, and ( 2) the comment period was


not a condition precedent      to   performance      based   on   the   plain   terms   of   the   contract.   The superior


court denied both parties' summary judgment motions, reasoning that there were material issues

of fact regarding interpretation of the escrow agreement.

           In April 2012, the Trust filed       a second
                                                             summary judgment             motion.       It argued that the


escrow agreement was defunct and had expired because the Port had failed to make a claim to

the funds before the fifth anniversary         of   the property'   s purchase      closing date. The Trust argued

that the agreement' s " time is       of   the essence"      clause strengthened this requirement to comply

strictly   with   the five -
                           year limitation.     Clerk' s Papers ( CP)       at   436.    The Port also filed a second


summary judgment motion, supported with a declaration from Leslee Conner, an engineer for the

Port' s remediation group.

           Conner declared that there was contamination from metals                                and petroleum on the


property, which conclusion she supported with attached reports establishing the extent of the

contamination and the necessity for removing the contaminated soils to comply with state

regulations.        Conner further    stated    that ( 1)    the methods the Port used to remediate the


contamination were the most cost effective; and ( 2) even if the Port had provided the Trust with


notice of the remediation, it was " inconceivable" that any comment the Trust could have made

would      have   reduced the costs to     less than the $ 490, 000      available      in the     escrow account.    CP at


867.


           The superior court denied the Trust' s summary judgment motion, granted summary

judgment to the Port, awarded the Port attorney fees and costs under the escrow agreement, and


                                                             6
No. 43940 -9 -II



awarded     the Port a $      490,000 judgment to be satisfied from the escrow deposit in the clerk' s


registry. The Trust unsuccessfully moved for reconsideration. The Trust appeals.

                                                      ANALYSIS


         The Trust challenges the superior court' s summary judgment order releasing escrow

funds to the Port        on    several    grounds.    To the extent that the Trust has provided sufficient


argument supporting these challenges, we address each in turn.

                                               I. STANDARD OF REVIEW


         We review de novo a superior court' s decision on summary judgment. Lybbert v. Grant

County,     141 Wn.2d 29, 34, 1 P. 3d 1124 ( 2000).                     Summary judgment is appropriate where,

viewed in the light most favorable to the nonmoving party, the evidence presents no genuine

issue   of material    fact   and the    moving party is     entitled   to judgment   as a matter of   law. CR 56( c);


Loeffelholz    v.   Univ. of Wash., 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012). The parties here do not


dispute the    material       facts.    Accordingly, the remaining issues are questions of law, which we

review   de   novo.   Boag      v.   Farmers Ins. Co.,     128 Wn. App. 333, 339, 115 P.3d 363 ( 2005).

                                       II. FAILURE To PRESERVE MTCA CLAIMS


         The Trust argues that the superior court erred in ordering it to release the escrow funds to

the Port because the Port could not be held liable for remediation costs until an equitable

                                                                                                              5
apportionment of        those costs was conducted under the               MTCA,   chapter   70. 105D RCW.         These


MTCA -
     based arguments are not relevant to our analysis of the Trust' s liability because neither


5 More specifically, the Trust argues that ( 1) it was not liable under the MTCA because it did not
 release"     any hazardous          substances   on the   property; (   2) it was not a party that could be held
liable under the MTCA under RCW 70. 105D. 040; and ( 3) there was no proof that the hazardous
substances on the property posed a threat to human health or the environment.



                                                               7
No. 43940 -9 -II


                                                                                                                         6
party    asserted    MTCA          claims    below,       and the superior court        did   not   address them.            We may

refuse   to   review   any    claim of error not raised         in the trial   court.   RAP 2. 5(    a);   Hall v. Feigenbaum,


178 Wn.       App.   811, 817 -18, 319 P. 3d 61,             review     denied, _   Wn. 2d _ (      2014).    Accordingly, we

do not further address the Trust' s MTCA -
                                         based arguments.

                                   III. INADEQUATE: EQUAL PROTECTION ARGUMENT


           The Trust also argues that the superior court violated its equal protection rights because it


failed to give the Trust the benefit of its bargain and failed to enforce applicable contract and


guarantee      rules   by (   1)    ignoring    the Trust'     s   contract    defenses       against the    Port'   s   claims, (   2)


ignoring the Port' s failure to serve or to perfect its claim against the Trust' s guaranteed escrow,

and ( 3)   jumping directly         to the   question of whether          the Port had    a claim    for damages. The Trust


argues     that these alleged deficiencies are "               a clear indication that in Pierce County, the Port of

Tacoma is      being    treated as a        superior      to other litigants in the county."          Br. of Appellant at 34.


These arguments also fail.


           In support of these arguments, the Trust cites only the general equal protection provisions

of the Washington and United States constitutions, without explaining how they were violated in

the   context• of    this appeal.      Because the Trust' s argument on this point is inadequate, we decline


to address it further. RAP 10. 3(             a)(   6);   see also In re Marriage of Katare, 175 Wn.2d 23, 40, 283



6
    Rather, the dispute at issue involves the Trust' s contractual obligations under the escrow
agreement, in which the Port agreed to release the Trust from MTCA liability in exchange for the
Port'   s right   to seek     reimbursement           for future    environmental       cleanup     costs   from the $ 500, 000
portion of the property' s purchase price deposited in escrow.

7 To the extent that the Trust argues the superior court violated its equal protection rights by
reaching a decision unfavorable to the Trust, such argument lacks support and merit.



                                                                    8
No. 43940 -9 -II



P.3d 546 ( 2012) ( "`[ N] aked castings into the constitutional sea are not sufficient to command


judicial   consideration and         discussion. ") ( internal            quotation marks omitted) (         quoting In re Pers.

Restraint of Williams, 111 Wn.2d 353, 365, 759 P. 2d 436 ( 1988)), cert. denied, 133 S. Ct. 889


 2013).


                                                         IV. No PERJURY


           The Trust next argues that the superior court should not have considered Conner' s


declaration to establish the necessity and cost of remediation because, it alleges, she " committed

perjury in her declaration."          Br. of Appellant at 37. The Trust cites only ER 607 and Washington

Practice         discussion    of    this   rule    to   support     its    argument.     The Trust cites no authority to

support its contention that the superior court should not have considered the evidence; nor does


the Trust       make   clear   what     relief      it   requests.         Because the Trust inadequately briefed this
                                                                                                 9
argument,       contrary to RAP 10. 3(       a)(   6),   we   do   not   further   consider    it.




8
    5A WASHINGTON PRACTICE: EVIDENCE, LAW AND PRACTICE §§ 607. 17 -20, at 407 -. 2 ( 5th Ed.
                                                                               1
2007).

9
    But   even were    we   to   consider      this argument, the Trust               would not prevail.           First, the Trust
mischaracterizes       Conner'   s   declaration         statements:        Conner did not state that the Trust would be
liable for cleanup      costs under         the    MTCA,       as the      Trust    alleges.     Rather,   she (   1) described the
exchange of promises the parties made when they entered into the escrow agreement; and ( 2)
stated that, in her opinion, had the Port known the extent of the contamination on the property, it
would not       have limited its recovery to only $ 500, 000. These statements do not claim that the
Trust     was   actually liable under the MTCA; thus, they were not false. Second, these statements
were not statements of fact but, rather, legal conclusions about the Trust' s potential liability
under     the   MTCA. But there are no MTCA claims at issue in this appeal; thus, the Trust fails to
show how Conner' s MTCA statements were material so as to amount to " perjury" under RCW
9A.72. 020( 1),     which requires " a       materially false            statement." (   Emphasis added.).



                                                                     9
No. 43940 -9 -II



                                                        V. NO SPOLIATION


        The    Trust further               argues that the      evidence of the Port' s        remediation      costs   was


inadmissible     under    the spoliation doctrine because critical evidence was " destroyed" when the



Port removed the hazardous substances from the property. Br. of Appellant at 32. We disagree.

         As a preliminary matter, we note that the Trust fails to provide any authority or citations

to the record supporting its assertion; therefore, the Trust' s briefing on the matter does not

comply    with    RAP 10. 3(         a)(   6).   Nevertheless, we note that even if the Trust had properly

supported its argument with authority and citations to the record, the record does not support its

factual assertions. The record shows that no evidence of remediation costs or soil conditions was


destroyed.     On the contrary, the Port                 offered   to provide the Trust       with (   1)   samples   of the


contaminated      soils    that      its    environmental      consultants   had   retained    and (   2)   accompanying


laboratory    reports on    the contamination; but the Trust did              not respond     to this offer.    Therefore,


here, the allegedly destroyed evidence did not warrant application of the spoliation doctrine.°

                                VI. CONTROL OVER ESCROW FUNDS NOT DISPU'1'ED


         The Trust next argues that the Port incorrectly asserted to the superior court that it (the

Port) had sole control over the escrow funds and " could do what it wanted with [ those funds] for


any   remediation."       Br.   of   Appellant     at   23.   The Trust is correct to the extent that ( 1) in general,


  o] nce deposited in escrow, an instrument passes beyond the control of the depositor, and he




10 We further note, however, that even if evidence had been destroyed such that the spoliation
doctrine would apply, the trial court could have allowed an inference that the allegedly destroyed
evidence would have been unfavorable to the party who destroyed it, rather than excluding the
evidence, as the Trust argues here. See Henderson v. Tyrrell, 80 Wn. App. 592, 605, 910 P.2d

522 ( 1996).



                                                                 10
No. 43940 -9 -II




may    not recall   it "; and ( 2) "[     u] pon the performance of the condition named, the depositary must

deliver it to the   grantee."        Lechner v. Hailing, 35 Wn.2d 903, 912, 216 P.2d 179 ( 1950).

         But the record here does not show that the Port' s assertions about its control over the


escrow    funds     misled     the    superior          court:    The superior court did not conclude that the Port


retained control over the escrow funds or that Chicago Title was not required to turn the funds


over   to the Trust     on    the fifth anniversary of closing.                 Nor does the Port pursue this position on


appeal. Accordingly, we do not further consider this inconsequential issue.

                                     VII. ESCROW AGREEMENT CONSIDERATION


         The Trust also argues that there was no consideration for the Trust' s agreement to place


 500,000 of the property' s purchase price in escrow and, therefore, the escrow agreement was

not a valid contract."          Again, the record does not support this argument.

         We     agree    with       the       Trust that to be          enforceable,     a contract must be supported by

consideration.         Keystone Land & Dev. Co.                    v.   Xerox   Corp.,   152 Wn.2d 171, 178, 94 P. 3d 945


 2004). "    Consideration is             a   bargained -
                                                        for        exchange of promises."
                                                                                                  Labriola v. Pollard Grp.,

Inc., 152 Wn.2d 828, 833, 100 P. 3d 791 ( 2004).                         Generally, "[ whether a contract is supported by


11 The Trust' s argument that there was no consideration for the escrow agreement does not
correspond to an assignment of error or to a corresponding issue statement, as RAP 10. 3( a)( 4)
and 10. 3( g) require.   Generally, we will review a claimed error only if it is included in an
assignment of error. Havlina v. Wash. State Dep' t of Transp., 142 Wn. App. 510, 515 n. 1, 178

P. 3d 354 ( 2007). But we also construe the rules of appellate procedure liberally to promote
justice and to facilitate the decision of cases on the merits. RAP 1. 2( a); Havlina, 142 Wn. App.
 at 515 n. 1. Therefore, we may consider issues that do not correspond to an assignment of error
where ( 1) "` the nature of the appeal is clear, "' ( 2) "' the relevant issues are argued in the body of

the brief, "' (3) "'    citations are supplied so                that the Court is not greatly inconvenienced, "' and ( 4)
  the   respondent      is   not prejudiced. "'
                                                          Havlina, 142 Wn. App. at 515 n. 1 ( quoting State v. Olson,
126     Wn.2d     315,       323,    893        P. 2d    629 ( 1995)).          Because    the   Trust' s   escrow   agreement
consideration argument meets these requirements, we consider its merits.




                                                                        11
No. 43940 -9 -II



consideration is a question of law and may be properly determined by a court on summary

judgment."   Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wn.2d 178, 195, 840 P.2d 851 ( 1992).

We do not agree with the Trust, however, that the escrow agreement here lacked consideration


and was therefore unenforceable.


        Here, the Trust   allowed   the Port to    place $   500, 000 of the property' s sale proceeds in

escrow, subject to the Port' s later claims for environmental cleanup costs within 5 years of

closing.   In exchange, the Port agreed to release the Trust from MTCA liability for any

hazardous substances found on the property. Thus, formation of this escrow agreement included

a bargained - exchange of promises, including the requisite consideration. We hold, therefore,
            for

that the superior court did not err in granting summary judgment to the Port on this ground.

                                   VIII. COMPLIANCE WITH CR 56(h)


        The Trust argues that we should reverse summary judgment to the Port because the

superior court failed to comply with CR 56( h) when it did not include in its summary judgment

order a list of all the documents it considered. 12 We reject the Trust' s request, holding that even

if the trial court erred in not listing every document on the summary judgment order, any error

was harmless.


        CR 56( h)   provides: "   The order granting or denying the motion for summary judgment

shall designate the documents and other evidence called to the attention of the trial court before


the order on summary judgment was entered." (              Emphasis   added.).   In its order denying the



12
     Again, the Trust' s brief does not include            an   issue statement or assignment of error
corresponding to the claimed      CR 56( h)   violation.   Nevertheless, we again exercise our discretion
to review this issue on the merits.




                                                      12
No. 43940 -9 -II




Trust' s first summary judgment motion and in its order granting the Port' s summary judgment

motion, the superior court named specifically only 12 of the documents it had considered; but it

also noted   that it had considered these 12 documents together with "[                       a] ny other documents and

pleadings    on   file in this        case."    CP   at   425, 428.   The Trust argues that because the superior


court' s summary judgment order listed only 12 of over 60 documents considered, we must
                                                                 13
reverse   the summary judgment.                  We disagree.         The Trust' s argument ignores the superior


court' s explicit statement, noted above, that it in addition to the 12 named documents, it


considered "[     ajny   other   documents       and pleadings on     file in this   case."   CP at 425, 428.


          Furthermore, the Trust cites no authority to support its argument that the summary

judgment order' s failure to list all documents specifically and individually requires us to reverse

the order.    On the contrary, where, as here, the documents the superior court referenced in

general, but failed to name specifically, in its order are nevertheless included in the record before
                                                                                                         14
us on appeal,     any    error   in   failing   to list those documents in the order is harmless.             W.R. Grace


     Co. v. Dep' t of Revenue, 137 Wn.2d 580, 591, 973 P. 2d 1011 ( 1999).




13
  We agree with the Trust that CR 56( h) requires the superior court to list every document it
considered in an order granting or denying summary judgment. We disagree, however, with the
Trust' s claim that reversal is the remedy for this violation.

14 Despite holding that the superior court' s failure to list all documents does not require reversal
here, we note that this holding does not relieve trial courts from complying with CR 56( h) and
listing in summary judgment orders all documents called to the superior court' s attention.


                                                                13
No. 43940 -9 -II



                                              IX. TIMELINESS OF PORT' S CLAIM


            The Trust next argues that the Port may not recover the escrow funds because it failed to

make a claim against those funds within five years of the property' s closing date, as the escrow

agreement required. The record does not support this assertion.


            The escrow agreement required the escrow funds to be disbursed to the Port if "within


five ( 5)   years of        the ` Closing Date, "'      the Port provided notice to the Trust that it had discovered


hazardous         substances on        the property that had been on site before the closing date.                  CP at 229.


The agreement further provided that if the Port had made no claim to the escrow funds by " the

fifth ( 5th) anniversary          of   the   Closing    Date," these funds would be disbursed to the Trust on that


date. CP at 230. The property' s closing date was May 26, 2006; the Trust received notice of the

Port' s   claim       for   reimbursement        from the   escrow     funds five   years   later,   on   May   26, 2011.   The


Trust argues that ( 1) the Port lost its right to claim the funds at midnight on May 25, 2011; and.

 2) therefore, the Port could not recover the funds from the escrow account on May 26 because at

that point, the funds belonged to the Trust.


            The Port counters, and we agree, that it had until May 26, 2011, the fifth anniversary of

the closing date, to           make a claim       to the   escrow   funds.   When computing time from a particular

date, the general rule excludes that start date. See Perkins v. Jennings, 27 Wash. 145, 149, 67 P.


590 ( 1902).          Moreover, the plain meaning of the term " anniversary" connotes the same month

and   day    in   a   later   year.   See Webster' s Third New International           Dictionary 87 ( 2002).        We hold,


therefore, that ( 1) the escrow agreement' s five -
                                                  year period began on May 27, 2006, and its five -

year "    anniversary" fell           on   May   26, 2011; (   2) accordingly, the Port had until May 26, 2011, to

make a       claim      to the    escrow     funds; (   3) the Port' s May 26, 2011 claim was timely under the



                                                                  14
No. 43940 -9 -II




agreement; and ( 4) the superior court did not err in concluding as a matter of law that the

agreement required the remaining escrow funds to be disbursed to the Port.

          X. PORT' S FAILURE TO COMPLY WITH 21 -DAY NOTICE AND COMMENT PERIOD


         The Trust makes four arguments about the Port' s failure to comply with the escrow
                                                             15
agreement' s    21 - day   notice and comment period,             all of which fail. We address each in turn.


                                          A. No showing of guarantee

         The Trust first argues that the escrow agreement was a " guarantee" that had to be strictly

enforced according to its terms. Br. of Appellant at 26. We disagree.

         The Trust does not specifically explain the effect of a guarantee on interpreting the

escrow    agreement        here, contrary to RAP 10. 3(           a)(   6).    Instead, the Trust' s brief cites basic


guarantee principles and offers only the following argument:

                  The escrow agreement is nothing more than a contract to answer for the
         debts, the   guarantee of certain       specific     obligations         of   Marine View, Inc.     The

         Trust never had any obligation to perform any remediation on the property nor did
         it have any independent liability for such needs or actions because any
         independent liability it might have had was released in the Purchase and Sale
         agreement.




15 The pertinent portion of the escrow agreement provided:.
        If within five (5) years of the " Closing Date" under the Purchase Agreement, the
         Port discovers ...      any hazardous                  Property ... the Port shall
                                                   substances ...             on the

         give notice to Marine View Inc. and the Trust ( with a copy to Escrow Agent) of
         such discovery on the Property, which notice shall include a detailed estimate
         prepared by a qualified independent contractor qualified to contract with the Port
         of   the cost to the   Port to ...    remediate such           hazardous      substances....   After the
         Port furnishes the Trust        and   Marine View Inc.,               with notice of such discovery,
         Marine View, Inc. and the Trust shall each have a reasonable period of not less
         than 21 days ...        a ft er receipt of notice    from the Port ...            to comment upon the
         proposed remediation before work on said remediation shall commence.
CP at 229.



                                                          15
No. 43940 -9 -II



Br.      of   Appellant   at   26.    This argument does not persuade us to adopt the Trust' s position.

Therefore, we hold that there has been no showing that the escrow agreement was to operate as a

guarantee along the lines that the Trust suggests.

                                               B. No condition precedent


              The Trust next argues that the 21 -day notice and comment period requirement in the

escrow agreement was a condition precedent to the Port' s making a valid claim against the

escrow funds. Again, we disagree.


              A condition precedent is an event that must occur before there is a right to immediate


performance of a contract.             Tacoma Northpark, LLC v. NW, LLC, 123 Wn. App.. 73, 79, 96 P.3d

454 ( 2004).          If the condition does not occur, the parties are excused from performance of the


contract. Tacoma Northpark, 123 Wn. App. at 79. Determining whether the escrow agreement' s

21 -day notice and comment period was a condition precedent requires us to interpret the escrow

agreement, a question of             law,   which we review    de   novo.   Dave Johnson Ins., Inc. v. Wright, 167


Wn.      App.    758, 769, 275 P. 3d 339,        review   denied, 175 Wn.2d 1008 ( 2012). Whether a contract


provision        is   a condition precedent or      a contractual promise '       depends upon the intent of the


parties, to be ascertained from a fair and reasonable construction of the language used in the light

                                                   16
of all    the surrounding circumstances. "'             Tacoma Northpark, 123 Wn. App. at 79 ( quoting Ross



16 "[
         T]he intent of the parties to create a condition precedent may often be illuminated by phrases
and words such as ` on condition,' ` provided that,' ` so that,' ` when,' ` while,' ` after,' or ` as soon

as. "'        Lokan & Assocs.,       Inc. v. Am. Beef Processing, LLC, 177 Wn. App. 490, 499, 311 P. 3d
1285 ( 2013) ( quoting Ross             v. Harding, 64 Wn.2d 231, 237, 391 P. 2d 526 ( 1964)).   But such
words are not required: "             Any words which express, when properly interpreted, the idea that the
performance of a promise              is dependent      on some other event will create a condition."    Ross, 64
Wn.2d at 237.




                                                              16
No. 43940 -9 -II



v. Harding, 64 Wn.2d 231, 236, 391 P.2d 526 ( 1964)).

         To assist in determining the parties' intent, we may apply the " context rule" adopted in

Berg v. Hudesman,         115 Wn.2d 657, 666 -69, 801 P.2d 222 ( 1990). This " context rule"


             allows a court, while viewing the contract as a whole, to consider extrinsic
         evidence, such as the circumstances leading to the execution of the contract, the
         subsequent conduct of the parties and the reasonableness of the parties' respective
         interpretations."


Roats   v.   Blakely   Island Maint. Comm' n, Inc.,            169 Wn. App. 263, 274, 279 P.3d 943 ( 2012)

quoting Shafer       v.   Bd. of Trs. of Sandy Hook Yacht Club Estates, Inc.,                   76 Wn. App. 267, 275,

883    P. 2d    1387 ( 1994)).         The context rule applies even when the provision at issue is


unambiguous.        Roats, 169 Wn.       App.   at   274. But "[ w] here doubt exists as to whether parties have


created a promise or an express condition, we should interpret the language in question to create


a promise."       Lokan &      Assocs., Inc. v. Am. Beef Processing, LLC, 177 Wn. App. 490, 499, 311

P.3d 1285 ( 2013).


         We generally give contractual language its ordinary, usual, and popular meaning. Jensen

v.   Lake Jane Estates, 165 Wn.           App.       100, 105, 267 P. 3d 435 ( 2011). "          An interpretation of a


contract that gives effect to all provisions is favored over an interpretation that renders a


provision      ineffective."    Snohomish County Pub. Transp. Benefit Area Corp. v. FirstGroup Am.,

Inc., 173 Wn.2d 829, 840, 271 P. 3d 850 ( 2012). Thus, "`[ w] here one construction would make a


contract       unreasonable,     and    another,     equally   consistent       with   its   language,    would make it


reasonable,      the latter    more rational construction must prevail. "'               Better Fin. Solutions, Inc. v.


Transtech Elec., Inc., 112 Wn.             App.       697, 712      n. 40,   51 P. 3d 108 ( 2002) (      quoting Byrne v.




                                                               17
No. 43940 -9 -II



Ackerlund, 108 Wn.2d 445, 453 - 54, 739 P. 2d 1138 ( 1987)).           17 The plain language of the escrow

agreement at issue here provided:


          If within five (5) years of the " Closing Date" under the Purchase Agreement, the
          Port discovers any construction debris or other material on the property which
          was not deposited pursuant to a valid permit, or discovers         any hazardous
          substances ( as defined by any federal, state or local law) on the Property which
          was not deposited or released onto the Property after the Closing Date, and such
          materials or condition are not within the scope of the Negotiated Cleanup
          Obligations, the Port shall give notice to Marine View Inc. and the Trust ( with a
          copy to Escrow Agent) of such discovery on the Property, which notice shall
          include a detailed estimate prepared by a qualified independent contractor
          qualified to contract with the Port of the cost to the Port to remove such debris or
          other material or remediate such   hazardous       substances.   Where practical, the Port
          shall attempt to obtain a fixed bid for such removal, remediation or resolution.
          After the Port furnishes the Trust      and   Marine View Inc.,         with     notice   of such

          discovery, Marine View, Inc. and the Trust shall each have a reasonable period of
          not less than 21 days with respect to hazardous substances, and 5 days with
          respect to debris or materials which are not hazardous substances, after receipt of
          notice from the Port ( such 21- or 5- day periods to run concurrently) to comment
          upon the proposed remediation before work on said remediation shall commence,
          except in case of emergency threatening life or limb of persons on the Property or
          immediate destruction of the Property.      Upon completion of the removal or
          remediation, as determined by certification of the qualified independent contractor
          to the Port, Marine View Inc., the Trust, and Escrow Agent, the Port shall be

          entitled to reimbursement out of the Escrow Funds held in the Escrow Account
          for the actual expenses incurred by the Port with respect to such activity, upon
          delivery to Escrow Agent, with copies to Marine View Inc. and the Trust, of a
          written demand, documenting the expenses paid by the Port.

CP at 229.




17
  If despite extrinsic evidence, a contract provision' s meaning is uncertain or is subject to two or
more reasonable interpretations, the provision is ambiguous and we construe that ambiguity
against the document' s drafter.   Riss v. Angel, 80 Wn. App. 553, 557, 912 P.2d 1028 ( 1996),
aff' d, 131 Wn. 2d 612, 934 P. 2d 669 ( 1997); Jensen, 165 Wn. App. at 105. The Trust also argues
that the environmental cleanup       section of   the escrow    agreement was "          clearly the Port' s," and,
therefore, we should construe any      ambiguity    against    the Port.   Br.    of    Appellant at 27. Because
we   do   not   find this language   ambiguous,    we need      not   construe.   it.
                                                                      But even assuming the
language was ambiguous, we would construe it as creating a promise, not a condition precedent.
Lokan, 177 Wn. App. at 499.


                                                        18
No. 43940 -9 -II



          This portion of the escrow agreement contained two promises. First, the Port promised to


provide 21 days notice to the Trust before remediating hazardous substances on the property.

Second, the Trust agreed to allow the Port to be reimbursed from the escrow funds after


remediation was completed. There is no language in the agreement, however, suggesting that the

Trust' s promise to allow release of the funds was dependent on the Port' s providing pre-
                         18
remediation notice.
                              Accordingly, we hold that the 21 -day notice and comment period required

by the escrow agreement was not a condition precedent to the Trust' s release of the escrow funds

to the Port.


                                         C. Time - -he- essence clause
                                                 of t


          The Trust     also contends   that the escrow agreement' s provision— "[ t]ime         is of essence of


each and      every   provision of   this Agreement "—bars the Port'   s   recovery   of   the escrow   funds. Br.




18 Furthermore, the Trust cites no case law supporting its claim that the language at issue here
creates   a   condition precedent.       Instead, it   makes   two arguments about the parties'          intent in

drafting the escrow agreement, one of which finds no support in the record. First, contrary to the
Trust' s assertion, the Port' s attorney did not state in a declaration that the 21 -day comment
period was a condition precedent          to release of the funds.   Instead, this declaration stated that ( 1)
an October 2005 draft of the purchase and sale agreement had originally included a section
explicitly prohibiting the Port from proceeding with removal or remediation until the work had
been approved by Marine View; but ( 2) the Port had rejected this provision and it was removed
from the final agreement.
          Second, the Trust argues that the purchase and sale agreement' s requirement of cost
estimates before the Port commenced remediation work showed that the parties intended the
escrow agreement' s 21 -day comment period to be a condition precedent to reimbursement from
the escrow funds. The Trust does not cite to any particular portion of the purchase and sale
agreement to support its argument. To the extent that the Trust intended to refer to the purchase
and sale agreement provision addressing advance notice to the Trust of hazardous materials and
remediation costs, this language similarly shows no intent that notice to the Trust of remediation
cost estimates was a condition precedent to release of the             funds.   Moreover, the Trust fails to
show why the existence of cost estimates as a condition precedent in the purchase and sale
agreement would affect interpretation of the 21 -day comment period in the escrow agreement in
our condition precedent analysis.




                                                         19
No. 43940 -9 -II



of   Appellant        at   29 ( internal   quotation marks omitted).            Because again the Trust does not develop

an    argument         about       why this      clause    bars recovery here, we do not further address this

                 19
contention.           See RAP 10. 3( a)( 6).


                                               D. No injury; no equitable estoppel

         The Trust further argues that equitable estoppel bars the Port' s recovery of the escrow

funds because the Port knew about the hazardous substances on the property as early as 2009 but

failed to   provide notice of           its   claims   to the   funds   until   2011. Again, we disagree.


         The elements of equitable estoppel comprise:

            1)        an    admission,        statement,   or act inconsistent with the claim afterwards
         asserted, (2) action by the other party on the faith of such admission, statement, or
         act, and ( 3) injury to such other party resulting from allowing the first party to
         contradict or repudiate such admission, statement, or act."



Saunders     v.       Lloyd' s of London, 113 Wn.2d 330, 340, 779 P. 2d 249 ( 1989) (                     emphasis added)



 internal   quotation marks             omitted) (     quoting McDaniels v. Carlson, 108 Wn.2d 299, 308, 738

P. 2d 254( 1987)).


         The Trust argues that the Port had a duty under the escrow agreement to provide notice to

the Trust 21 days before conducting                     remediation work.          Regardless of the Port' s duty to inform

the Trust of the existence of the hazardous substances and plans for remediation, the Trust failed


to present any evidence that it was injured by the Port' s failure to provide such notice. First, the


19 We note, however, that the cases the Trust cites do not support its contention that the " time is
of   the essence" provision bars the Port' s recovery of the escrow                        funds.   Unlike the provision at
issue here, Olsen             v.   Northern S. S. Co., 70 Wash. 493, 127 P. 112 ( 1912) involved a condition
precedent    to                And Mid -
                      performance.       Town Ltd. P' ship v. Preston, 69 Wn. App. 227, 848 P.2d
1268 ( 1993)           and        v. Farrell, 62 Wn. App. 386, 814 P. 2d 255 ( 1991) involved a
                              Vacova Co.
party' s failure to act within the time specified by the contract. Here, in contrast, the Port acted
within the escrow agreement' s fixed termination date by providing notice of its claim to the
escrow funds to the Trust by the end of the five - ear period.
                                                   y


                                                                    20
No. 43940 -9 -II



requirement to give the Trust notice of planned remediation allowed the Trust only to comment

on   the Port' s plan,   not   to   prevent   the   Port from proceeding   with remediation.       Second, the Trust


presented no evidence that it had a more cost -effective remediation plan or that its comments


would    have   changed    the      nature or outcome of      the Port' s remediation efforts.      Third, and most


detrimental to the Trust' s . argument, the Port' s remediation engineer testified that it was


 inconceivable" that any comment the Trust could have made would have reduced the costs to

less than the $ 490, 000       available      in the   escrow account.   CP   at   867.   On the contrary, this third

uncontroverted fact shows that the Trust suffered no injury from the Trust' s failure to provide

notice   of   its   remediation      plans.     Accordingly, we hold that the Trust' s equitable estoppel

argument fails.


           In sum, none of the Trust' s arguments about the Port' s failure to comply with the escrow

agreement' s 21 -day notice and comment period before undertaking remediation defeat the Port' s

right to the funds under the escrow agreement.


                                                    XI. ATTORNEY FEES


           The Trust also appears to argue that the superior court abused its discretion . awarding
                                                                                         in

attorney fees to the Port below. Although the Trust devotes a section of its brief to its request for

fees, in   compliance with          RAP 18. 1( b),     it cites no authority to support this argument; therefore,

we decline to consider it.20 RAP 10. 3( a)( 6).

           The Port requests attorney fees on appeal under RAP 18. 1 and under the escrow

agreement.      The escrow agreement provides that in any litigation between the parties to enforce



20
  Nevertheless, we note that because the Trust was not the prevailing party below, nor does it
prevail on appeal, it would not be entitled to attorney,fees under the escrow agreement.


                                                              21
No. 43940 -9 -II



the agreement, the prevailing party " shall be entitled to be reimbursed by the other Party for all

of the reasonable legal fees and disbursements such prevailing party has incurred in connection

with   such   litigation,   including   any   appeal   therefrom."   CP   at   232.   Because the Port is the


prevailing party on appeal, we grant its request for attorney fees.

        We affirm the superior court' s grant of summary judgment and its attorney fee award to

the Port. And we award the Port attorney fees on appeal.

        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:




W;




Melnick, J.




                                                         22
