                                                                                  FILED 

                                                                               JUNE 24, 2014 

                                                                        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

    WEST ONE AUTOMOTIVE GROUP,                      )         No. 32222-0-111
    INC. d/b/a HERTZ CAR SALES,                     )
                                                    )
                          Respondent and            )
                          Cross-Appellant,          )
           v.                                       )
                                                    )         UNPUBLISHED OPINION
    SAMUEL C. ALVAREZ AND ROBERTA                   )
    A. ALVAREZ, husband and wife and the            )
    marital community comprised thereof,            )
                                                    )
                          Appellants.               )

           BROWN, A.C.J. - Samuel and Roberta Alvarez appeal the trial court's post jury

    trial ruling that they did not substantially prevail for fee shifting purposes in their defense

J   against a breach of contract action brought by West One Automotive Group, Inc. d/b/a

    Hertz Car Sales 0/'Iest One). The Alvarezes contend they should be considered the

    prevailing party even though their separate Consumer Protection Act (CPA)

    counterclaim was unsuccessful. West One cross appeals, contending the court erred in

    ruling it failed to mitigate damages, and asserts it should have been considered the

    prevailing party. We hold the trial court did not err in its rulings, and affirm.
     No. 32222-0-111
     West One Auto Grp, v. Alvarez


                                              FACTS

            Mr. and Mrs. Alvarez traded in their 2003 GMC Avalanche on a 2006 Cadillac

     SRX at West One's Yakima Hertz dealership. A West One employee inspected the

     Avalanche and found it to be in good condition, but the employee failed to notice a

     doorpost sticker showing the Avalanche had a "branded" title, meaning the vehicle had

     been wrecked, declared a total loss, and rebuilt. West One has a policy against selling

     cars with branded titles. Following negotiations, the parties agreed to a $14,000 trade­

     in value for the Avalanche and a $26,488 sale price for the SRX.1

           Allegedly unaware the Avalanche had been totaled or that it had a branded title,

     the Alvarezes signed a seller's disclosure warranting that the Avalanche's title was not

     branded. The disclosure further provided West One was entitled to rescind the sale and

     recover damages, "including ATTORNEY FEES AND COSTS" for any breach of the

     agreement. Clerk's Papers (CP) at 83. The Alvarezes Signed their interest in the

     Avalanche over to West One and took out a loan for the balance on the SRX. West

     One paid the Alvarezes' credit union $9,380 left on the loan for the Avalanche.

     According to West One, it first learned of the problem when the credit union sent the

     branded title. West One contacted the Alvarezes to rescind the trade-in transaction.

     The Alvarezes offered to unwind the sale and pay West One $9,380. West One felt a

     simple unwind would not compensate it for its anticipated lost profits on the sale of the



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   Avalanche or for the Alvarezes' IJse of the SRX, so it sued for breach of warranty and



I          1 The Alvarezes allege the original trade in value was $17,500 but it was
     changed at the last minute.

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     No. 32222-0-111
     West One Auto Grp. v. Alvarez


j    breach of contract. The Alvarezes responded by alleging West One failed to mitigate its



I    damages by rescinding the sale and alleging it unlawfully attempted to renegotiate the

     trade-in credit under Washington's CPA, chapter 19.86 RCW.

            Both parties unsuccessfully requested summary judgment. At a jury trial, the
1    parties stipulated if the jury found for West One on the contract claim, the court would

     rule on the Alvarezes' failure to mitigate defense. The jury found the Alvarezes liable for

     $3,800 in damages on West One's contract claim and rejected their CPA claim. The

     court denied the Alvarezes' CR 50(b) motion for judgment as a matter of law. The court

     found the facts sufficient to reject the Alvarezes' CPA, but ruled for the Alvarezes on

     their affirmative defense, reasoning West One could have mitigated its damages by

     rescinding the sale as the contract allowed. The court found West One's damages

     would have been $863.58 had it agreed to rescind the sale, and it ruled West One's

     inequitable conduct precluded that recovery.

            Later, the court determined in a letter opinion that neither party had prevailed for

     purposes of awarding attorney fees. Both parties appealed. 2

                                             ANALYSIS

                                      A. Summary Judgment

           The issue is whether the trial court erred by concluding material facts remained in

     dispute when denying the Alvarezes' summary judgment motion.




           2 The Alvarezes requested direct review from the Supreme Court, which it
     denied and transferred the matter to this court.

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   West One Auto Grp. v. Alvarez



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            Preliminarily, West One argues the Alvarezes did not appeal the summary

     judgment denial. Generally, our review is limited to "the decision or parts of the

     decision" the appellant designates in the notice of appeal. RAP 2.4(a) and no RAP

     2.4(b) or (c) exceptions are presented. Thus, the order denying summary judgment is

     not properly before us. Moreover, "[w]hen a trial court denies summary judgment due to

     factual disputes ... and a trial is subsequently held on the issue, the losing party must

     appeal from the sufficiency of the evidence presented at trial, not from the denial of

     summary judgment." Adcox v. Children'S Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15,

     35 n.9, 864 P.2d 921 (1993). We do not have the record of the summary judgment

     proceedings, but the court's CR 50 ruling discloses its view that genuine fact issues

     remained for trial regarding the branded title disclosure. Generally, the record of the

     contested facts presented to the jury is in accord. Given this record, we conclude the

     Alvarezes may not appeal the denial of their summary judgment motion.

                                    B. CR 50(b) Motion Denial

           The issue is whether the trial court erred in denying the Alvarezes' post-trial CR

     50(b) motion for judgment as a matter of law. They contend West One did not meet its

     burden of proof to submit the matter to the jury.

           We review a CR 50{b) motion for judgment as a matter of law using the same

     standard as the trial court. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816

     (1997). A CR 50(b) motion admits the truth of the opponent's evidence and all

     inferences that can reasonably be drawn from it. Queen City Farms, Inc. v. Cent. Nat'!



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No. 32222-0-111
West One Auto Grp. v. Alvarez


Ins. Co., 126 Wn.2d 50,98,882 P.2d 703 (1994). "Granting a motion for judgment as a

matter of law is appropriate when, viewing the evidence most favorable to the

nonmoving party, the court can say, as a matter of law, there is no substantial evidence

or reasonable inference to sustain a verdict for the nonmoving party." Sing, 134 Wn.2d

at 29. If any justifiable evidence exists on which reasonable minds might reach

conclusions consistent with the verdict, the issue is for the jury. Queen City Farms, 126

Wn.2d at 98.

       First, we discuss whether substantial evidence exists to support West One's

breach of warranty claim. Second, we discuss whether substantial evidence shows

West One did not violate RCW 46.70.180(4} and/or the CPA.

       First, a breach of warranty claim requires a warranty and a breach. See

DePhillips v. Zolt Constr. Co., Inc., 136 Wn.2d 26,36,959 P.2d 1104 (1998) (breach of

contract claim requires "a contract and a breach thereof'). "A warranty is a promise that

a proposition of fact is true." Okkerse v. Westgate Mobile Homes, Inc., 18 Wn. App. 45,

47 n.1, 566 P.2d 944 (1977). A person selling goods creates an express warranty with,

"[a]ny affirmation of fact or promise made by the seller to the buyer [that] relates to the

goods and becomes part of the basis of the bargain ... that the goods shall conform to

the affirmation or promise." RCW 62A.2-313(a).

       Here, the Alvarezes are the sellers of trade-in Avalanche. They signed a

contract, warranting, "the certificate of title for trade vehicle ... does not indicate that

the vehicle is "REBUILT, SALAVAGE, LEMON, OR INSURANCE TOTAL LOSS." CP at



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7. The title states under the section "Brands" that the vehicle was "SLVG DMGD." CP

at 41. The title registration shows the vehicle has been salvaged and/or damaged.

Given these facts, substantial evidence exists for the jury to find a warranty and a

breach of that warranty. The trial court did not err in denying the Alvarezes' request

under CR 50(b) for judgment as a matter of law.

       Second, the Alvarezes argue West One's attempt to change the trade-in

conditions after learning of the branded title violated the Auto Dealer Practice Act

(ADPA), chapter 46.70 RCW, and CPA. Under RCW 46.70.180(4)(b), it is unlawful for a

motor vehicle dealer "to renegotiate a dollar amount specified as a trade-in allowance

on a vehicle delivered or to be delivered by the buyer or lessee as part of the purchase

price or lease." But an exception exists if the individual trading in the vehicle fails "to

disclose that the vehicle's certificate of [ownership] has been branded for any reason,

including, but not limited to, status as a rebuilt vehicle." RCW 46. 70.180(4)(b)(i).

Violation of this provision of the ADPA triggers potential liability under the CPA.

       To prevail in a private action brought under the CPA, the plaintiff must establish

(1) the defendant has engaged in an unfair or deceptive act or practice, (2) in trade or

commerce, (3) that impacts the public interest, (4) the plaintiff has suffered injury in her

or his business or property, and (5) a causal link exists between the unfair or deceptive

act and the injury suffered. Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d

133,149,930 P.2d 288 (1997). Whether a particular action gives rise to a CPA

violation is reviewed by us as a question of law. Id. at 150.



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West One Auto Grp. v. Alvarez


       Here, West One did not violate the ADPA or the CPA. Instead of renegotiating

the dollar amount specified in the trade-in allowance, West One sought to rescind the

trade-in transaction when it learned that the Avalanche had a branded title. Even

assuming West One's request to rescind the trade-in transaction did constitute a

renegotiation of the trade-in allowance, West One was compelled to do so because the

Alvarezes breached their express warranty by not disclosing the branded status of the

Avalanche. Thus, West One still did not run afoul of RCW 46.70.180(4)(b) because a

dealer may renegotiate a trade-in allowance when a seller fails to disclose that the

vehicle's title is branded. See RCW 46.70.180(4)(b)(i).

       In sum, the Alvarezes' arguments attempting to disclaim responsibility for their

breach of the express warranty are unpersuasive. Thus, we conclude substantial

evidence supports the jury's finding that West One did not violate RCW 46.70.180(4)(b).

Even assuming West One did attempt to renegotiate the trade-in allowance, it did not

violate Washington law because the renegotiation of the trade-in allowance was caused

by Mr. and Mrs. Alvarez's failure to disclose the Avalanche's branded title and

affirmative statement that the title was not branded. The jury could find West One's

conduct relating to the Avalanche did not afoul of RCW 46.70.180(4)(b) or the CPA.

                                 C. Attorney Fee Denial

       The issue is whether under RCW 4.84.339 the trial court erred in denying the

Alvarezes' request for attorney fees as the prevailing party.




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West One Auto Grp. v. Alvarez


       The applicability of RCW 4.84.330 is a question of law. Quality Food etrs. v.

Mary Jewell T, L.L.G., 134 Wn. App. 814,817, 142 P.3d 206 (2006). We review

questions of law de novo. Mohr v. Grant, 153 Wn.2d 812,823, 108 P.3d 768 (2005).

       RCW 4.84.330 provides, "In any action on a contract ... where such contract ...

specifically provides that attorneys' fees and costs, which are incurred to enforce the

provisions of such contract or lease, shall be awarded to one of the parties, the

prevailing party, whether he or she is the party specified in the contract or lease or not,

shall be entitled to reasonable attorneys' fees." RCW 4.84.330 further clarifies, "As

used in this section 'prevailing party' means the party in whose favor final judgment is

rendered." The statute does not define the prevailing party as the one that prevailed on

the claim which authorized the fees, but instead focuses on the relief afforded to the

parties for the entire suit whether or not the underlying claim provides for fees. Hertz v.

Riebe, 86 Wn. App. 102, 105,936 P.2d 24 (1997).

       The trial court relied on Hertz, a Division Three case where both parties

successfully defended the other's lawsuit. The court held neither party prevailed for

purposes of awarding attorney fees. In Hertz, a couple entered into contract to buy an

apartment building. The couple paid a $1,000 deposit and moved into the building. But

when they discovered the seller had misrepresented financial information, they sued to

get their deposit back and $525 for moving and inspection expenses. The seller

countersued for accrued rent. The trial court ruled for each party on their respective

claims, finding the seller was entitled to $1,000 for rent but the buyers were entitled to
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the return of their earnest money and expenses. The couple requested attorney fees

under the contract, arguing the court should have apportioned attorney fees between

the parties based on the claims on which each prevailed. This court held since each

party prevailed on a substantial theory, apportionment was not appropriate. Id. at 106.

       Like the couple in Hertz, the Alvarezes argue the trial court should have

apportioned the attorney fees between the parties based on the fees incurred defending

the respective claims, The Alvarezes assert the CPA claim was merely a minor part of

,the lawsuit, and many more billable hours were spent on the contract breach claim.

They allege the fees should have been apportioned between the claims, so that West

One's award for fees incurred defending the CPA claim should partially offset the

Alvarezes' fee award for defending the contract action. But the court in Hertz held such

apportionment is not proper where both parties prevail on major issues.

      The Alvarezes correctly note Division One of this court has disagreed with Hertz

on this issue. The court in Hertz noted that Division One had earlier held apportionment

of fees is appropriate in cases involving multiple distinct and severable claims. Marassi

v. Lau, 71 Wn. App. 912, 917, 859 P.2d 605 (1993). But, the Hertz court distinguished

Marassi on the basis that the plaintiff there was only successful on 2 of 12 distinct and

severable claims, apparently reasoning that the proportionality analysis would only

apply in cases involving a large number of distinct claims on which one party prevails in

a disproportionate number.




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West One Auto Grp. v. Alvarez


       Division One has disagreed with Hertz in at least two cases that did not involve

numerous claims. Int'l Raceway, Inc. v. JDFJ Corp., 97 Wn. App. 1,8,970 P.2d 343

(1999) (expressly disagreeing with Hertz's attempt to distinguish Marassi; holding

proportionality proper where one party prevailed on a claim constituting two-thirds of

lawsuit and other party prevailed on remaining claim); Transpac Dev. Inc. v. Oh, 132

Wn. App. 212, 219-20, 130 P.3d 892 (2006) (noting International Raceway's criticism of

Hertz, holding defendant's fees incurred successfully defending claim for unpaid rent

should offset plaintiff's fees in defending counterclaim for remodeling expenses).

       Here, Hertz seems most applicable. As noted by the Hertz court, RCW 4.84.330

focuses on the relief afforded to the parties for the entire suit whether or not the

underlying claim provides for fees. After consolidation, both parties' claims were part

and parcel of the same suit. Both parties prevailed on their respective claims and thus

neither was a '''prevailing party.'" Hertz, 86 Wn. App. at 105. In addition, the Hertz

court concluded that the proportionality approach in Marassi was not applicable

because "each party recovered on a substantial theory." Id. at 106. Similarly, here,

each party recovered on a substantial theory. Thus, like the trial court, we rely on Hertz

and finds no error in denying the Alvarezes attorney fee request.

                                   D. Mitigation Ruling

       The cross appeal issue is whether the trial court erred in striking the $3,800 for

breach of warranty based on its finding West One failed to mitigate its damages.




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West One Auto Grp. v. Alvarez


       The power of equity has been construed "'as broad as equity and justice

require.'" Agronic Corp. of Am. v. deBough, 21 Wn. App. 459, 463-64, 585 P.2d 821

(1978) (quoting 27 Am. Jur. 2d Equity§ 103 (1966». Ajudge may reduce a damages

award in equity under the doctrine of avoidable consequences, also known as mitigation

of damages. This doctrine "prevents recovery for damages the injured party could have

avoided through reasonable efforts." Cobb v. Snohomish County, 86 Wn. App. 223,

230, 935 P.2d 1384 (1997). The standard of review for a judge's exercise of equitable

authority is abuse of discretion. Rabey v. Dep't of Labor & Indus., 101 Wn. App. 390,

397,3 P.3d 217 (2000). Thus, we review the record to determine if the trial judge's

grant of equitable relief is based upon tenable grounds or tenable reasons. Pederson's

FryerFarms, Inc. v. Transamerica Ins. Co., 83 Wn. App. 432, 454, 922 P.2d 126 (1996).

       In unchallenged finding offact 11, a verity on appeal (Cowiche Canyon

Conservancy v. Bosley, 118 Wn.2d 801,808,828 P.2d 549 (1992», the court found:

                      Although the contractual remedy specified rescission
              and damages, [West One] did not agree to rescission until its
              letter of August 21, 2008-four months after the sale. By that
              time, [West One] also was insisting upon 'compensation for
              Mr. Alvarez' use of the vehicle he purchased, [unspecified]
              lost profits, attorney's fees, and ... [the $9,380].' During all
              relevant times, Alvarez was willing and able to rescind
              (exchange the SRX for the Avalanche) and pay [West One]
              $9,380.

CP at 839. The court further found the Alvarezes' "contract invokes the remedy of

rescission. [West One] requested this remedy in its complaint, but elected not to pursue

it the morning of trial." CP at 841 .



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West One Auto Grp. v. Alvarez


       The above findings in conjunction with the other evidence in our record show

West One could have substantially avoided its damages by resolving the dispute

consistent with its contractual remedy of rescission - the remedy offered by the

Alvarezes the day West One brought the problem to their attention. West One argues it

would not have been fully compensated for its damages had it accepted rescission

because Alvarez had put miles on the SRX between the time of sale and the time the

branded title was discovered, and West One would have lost its gross profit of $719.26

on the SRX sale.

      While West One's argument is understandable, the amount of damages is

minimal-roughly $800. Indeed, it is possible West One could have rescinded and sold

the SRX for a higher profit; thus suffering no damages. Nevertheless, the roughly $800

is the amount of damages that West One would have incurred had it reasonably

mitigated its damages by rescinding the purchase on June 4,2008. Here, however,

West One's actions caused it continued damages. The trial court found West One's

actions amounted to "ineptness." CP at 518. Given all, tenable grounds exist to

support the court striking the jury's damages award based on West One's failure to

mitigate damages.

                              E. Attorney Fees on Appeal

       Relying on RCW 4.84.330, the Alvarezes request attorney fees on appeal as the

prevailing party. The Alvarezes did not prevail on their direct appeal issues, but did

prevail in resisting West One's cross appeal. Based on the discussion above regarding



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West One Auto Grp. v. Alvarez


their request for attorney fees below, the Alvarezes are not the substantially prevailing

party. Thus, their request for attorney fees on appeal is denied.

      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:



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Siddoway, C.J.                                     Korsmo, J.   P




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