                                                                          FILED
                                                                        JULY 7, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

DEBORAH BURKSFIELD, a single                 )
individual; LSL PROPERTIES, LLC, a           )        No. 33037-1-111
Washington Limited Liability company,        )
                                             )
                    Appellants,              )
                                             )
      V.                                     )         UNPUBLISHED OPINION
                                             )
LARRY SALi and GAYLE SALi,                   )
husband and wife; STEVEN SALi and            )
DELETA SALi, husband and wife;               )
COLUMBIA READY-MIX, INC., A                  )
Washington Corporation; COLUMBIA             )
ASPHALT & GRAVEL, INC., a                    )
Washington corporation; JOHN                 )
ROTHENBUELLER, an individual;                )
ALEGRIA & COMPANY, P.S., a                   )
Washington professional service              )
corporation,                                 )
                                             )
                    Respondents.             )

      FEARING, C.J. - Deborah Burksfield and LSL Properties, LLC, a company

partially owned by Burksfield, successfully sued Burksfield's brothers and a company

owned by the brothers, Columbia Ready-Mix, Inc., for royalties owed under a gravel pit

lease. Burksfield and LSL appeal the trial court's denial of prejudgment interest on the
No. 33037-1-111
Burksfield v. Safi


jury award. Burksfield also appeals the trial court's award of costs against her in favor of

a related company, Columbia Asphalt & Gravel. The defendants appeal the trial court's

grant of reasonable attorney fees and costs to Burksfield for bringing a limited liability

company derivative action. We affirm all trial court rulings.

                                          FACTS

       Plaintiff Deborah Burksfield, defendant Larry Sali, defendant Steven Sali, and

nonparty Leonard Sali are siblings. Larry and Steven are the sole shareholders of

defendants Columbia Ready-Mix, Inc. (CRM) and Columbia Asphalt & Gravel, Inc.

(CAG).

       On June 17, 1998, Larry, Steven, and Leonard Sali formed plaintiffLSL

Properties, LLC (LSL) with each owning one third. The limited liability company's

operating agreement included a paragraph requiring the company to "indemnify and hold

harmless the Member(s), and each director, officer, partner, employee, or agent thereof,

against any liability, loss, damage, cost, or expense incurred by them on behalf of the

Company or in furtherance of the Company's interests, without relieving any such person

of liability for fraud, misconduct, bad faith, or gross negligence." Clerk's Papers (CP) at

156. In December 1999 and January 2000, Deborah Burksfield acquired an eighteen

percent interest in LSL with the three brothers thereafter splitting the other 82 percent

ownership.




                                             2
No. 33037-1-111
Burksfield v. Safi


       LSL owns two gravel quarries, the AK Anderson Quarry and the Resthaven

Quarry. On April 1, 2006, LSL agreed to lease the AK Anderson Quarry to CRM. In

tum, CRM agreed

               [T]o pay [LSL] rent as full and complete payment for all materials
       removed by [CRM] from said land and for the use of said property while
       such material is being removed therefrom, sixty cents ($0.60) per ton.
       Material shall be weighed on scales on the leased property and weight
       tickets shall be issued for each load removed .... IfLSL properties LLC,
       conducts a physical survey of the volume of material removed from the
       site, the volume of material determined by the physical survey shall prevail.

CP at 2873. The agreement did not specify a conversion rate to convert the volume

measurement obtained by a survey into a weight measurement used for determining cost.

The lease also provided:

               RECORD KEEPING
               8.1 [CRM] agrees to keep accurate records of all material removed
       from the demised premises and monthly shall furnish [LSL] with copies of
       said records. The records kept and provided to [LSL] shall include weight
       tickets for all material removed during the prior month.

CP at 2874-75.

       On January 1, 2007, Larry and Steven Sali purchased Leonard Sali' s interest in

LSL. On January 18, 2011, CRM exercised the option to renew the lease with LSL. In

tum, Larry and Steven Sali agreed, on behalf ofLSL and over Deborah Burksfield's

objection, to renew the lease with no increase in price.




                                             3
No. 33037-1-111
Burksfield v. Safi


                                      PROCEDURE

       On April 12, 2011, Deborah Burksfield, individually and on behalf of LSL, sued

Larry and Steve Sali for breach of the LSL operating agreement and breach of the lease.

We refer to the plaintiffs collectively as Deborah Burksfield. Burksfield also sued CRM,

Larry Sali, and Steven Sali for breach of fiduciary duty. She sued CRM, CAG, Larry,

and Steven for declaratory relief to render the renewed lease void. Burksfield also

alleged various defendants understated the quantity of rock removed from LSL' s quarry.

We refer to defendants, other than CAG, collectively as CRM. Deborah Burksfield

verified the complaint.

       At trial, Deborah Burksfield used topographical land surveys to show the amount

of material CRM removed from the AK Anderson quarry. Bruce Moorer, an expert in

forensic accounting with experience in the trucking industry, testified on her behalf.

Moorer testified that, based on the surveys, 741,847 cubic yards of material was extracted

from the AK Anderson Quarry between 2003 and 2008, and 207,400 cubic yards from

2008 through 2011, and 91, 169 cubic yards after 2011. He also testified that he

converted from cubic yards to tons using a conversion rate of 2.45. From the total

amount of extracted material, he reduced the amount of material extracted but not

removed, the amount for which CRM paid, and the amount extracted outside the statute

of limitations. According to Moorer, CRM failed to pay for 857,582 tons. At $.60 per

ton, the total underpayment was $535,674.

                                             4
No. 33037-1-111
Burks.field v. Sali


       CRM expert, John Rothenbueller, testified that LSL received payment for 35,992

tons of gravel more than CRM extracted from the Anderson quarry. Therefore, according

to Rothenbueller, CRM overpaid $21,595.

       At the close of Deborah Burksfield's case, CAG moved to dismiss the claims

against it because Burksfield did not present any evidence supporting a claim against

CAG. The trial court granted the motion and also granted CAG's posttrial request for

costs under RCW 4.84.185. The court awarded CAG $39,000 in costs. The judgment

denied any award for attorney fees, but the $39,000 award necessarily included some

attorney fees incurred by CAG in defending the suit.

       The jury found that CRM and the brothers breached the lease agreement and their

fiduciary duties and awarded $535,674.62 to Deborah Burksfield and LSL. The trial

court denied Burksfield's request for prejudgment interest. The court ruled that the

amount owed was not liquidated because "the amount of rock that was taken and the

value thereof was a moving target throughout this litigation and throughout the trial."

Report of Proceedings (Dec. 5, 2014) at 54. The trial court awarded LSL and Burksfield

$129,945.00 in attorney fees pursuant to paragraph 3.2 of the parties' LLC contract,

RCW 4.84.330, and laws and standards for recovery of attorney's fees when derivative

actions benefit the company and create a common fund.

                                 LAW AND ANALYSIS

       On appeal, Deborah Burksfield argues that the trial court erred in failing to award

                                             5
No. 33037-1-111
Burksfield v. Sali


her prejudgment interest. She also contends that the trial court erred in awarding CAG

reasonable attorney fees and costs against her. CRM appeals the ruling granting Deborah

Burksfield fees.

                                   Prejudgment Interest

       Deborah Burksfield contends that the trial court erred by not awarding

prejudgment interest because CRM owed a liquidated sum and CRM should not benefit

from its spoliation of records. CRM argues that the trial court correctly denied

prejudgment interest because the calculation of the amount owed required use of surveys,

expert testimony, and discretion. The law supports CRM's position.

       Appellate courts review a trial court's decision whether to award prejudgment

interest on an abuse of discretion standard. Scoccolo Cons tr., Inc. v. City ofRenton, 15 8

Wn.2d 506,519, 145 P.3d 371 (2006). A trial court abuses its discretion when its

decision is manifestly unreasonable, or exercised on untenable grounds. Mayer v. Sto

Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). A decision is manifestly

unreasonable if the court adopts a view that no reasonable person would take. State v.

Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). A decision is exercised on untenable

grounds if the trial court relies on unsupported facts or applies the wrong legal standard.

Mayer, 156 Wn.2d at 684.

       Prejudgment interest is allowable (-1) when an amount claimed is liquidated or (2)

when the amount of an unliquidated claim is for an amount due on a specific contract for

                                             6
No. 33037-1-111
Burksfield v. Sali


the payment of money and the amount due is determinable by computation with reference

to a fixed standard contained in the contract, without reliance on opinion or discretion.

Dep 't of Corr. v. Fluor Daniel, Inc., 160 Wn.2d 786, 789, 161 P.3d 372 (2007); Prier v.

Refrigeration Eng'gCo., 74 Wn.2d 25, 32,442 P.2d 621 (1968). Deborah Burksfield

claims the amount awarded by the jury was liquidated because the lease specified that a

land survey controlled upon a discrepancy in the amount of material removed from the

quarry. Nevertheless, the jury necessarily relied on the opinions of experts in awarding

the sum. CRM' s expert testified to a different sum owed than the sum formulated by

Burksfield's expert, Bruce Moorer. Moorer's use of 2.45 for the cubic yard to ton

conversion factor was discretionary. The trial court correctly noted that the sum owed

was a moving amount throughout trial.

       Deborah Burksfield argues that the court should not reward CRM for destruction

of records and its failure to maintain weight tickets as required by the lease agreement.

Nevertheless, neither the jury nor the trial court found spoliation. Burksfield presents no

authority that spoliation of records by one party entitles another party to prejudgment

interest.

        We conclude the amount owed to respondents was uncertain and unliquidated.

Thus the trial court properly denied the request for prejudgment interest.




                                             7
No. 33037-1-111
Burksfield v. Safi


                                  Attorney Fees and Costs

       Deborah Burksfield contends the trial court erred in characterizing her suit against

CAG as frivolous and thereby awarding CAG $39,000 in costs. CAG replies that the trial

court properly awarded fees under RCW 4.84.185 because Burksfield never factually or

legally supported her claim against it. We agree with CAG.

       RCW 4.84.185 declares:

              In any civil action, the court having jurisdiction may, upon written
       findings by the judge that the action, counterclaim, cross-claim, third party
       claim, or defense was frivolous and advanced without reasonable cause,
       require the nonprevailing party to pay the prevailing party the reasonable
       expenses, including fees of attorneys, incurred in opposing such action,
       counterclaim, cross-claim, third party claim, or defense.

We review a trial court's award under RCW 4. 84 .185 for an abuse of discretion. Dave

Johnson Ins., Inc. v. Wright, 167 Wn. App. 758,786,275 P.3d 339 (2012).

       Deborah Burksfield contends that CAG and CRM were operated interchangeably

by the Sali brothers. Burksfield, however, presented no trial testimony to support this

contention. CAG was only a party to the suit because it was a closely held company of

the Sali brothers, but not because it owed LSL any contractual or fiduciary duties.

Therefore, the trial court did not abuse its discretion in awarding costs.

       When CAG moved the court for an award of costs, Deborah Burksfield filed a

declaration supporting her argument that CAG and CRM operated interchangeably and

CAG may have sold some of the gravel from the Anderson quarry. The trial court


                                              8
No. 33037-1-111
Burksfield v. Sali


determines the frivolity of a lawsuit, however, on evidence presented at trial, not

evidence the opposing party fails to submit until the time of the motion for costs and fees.

Burksfield cites no law to the contrary.

       Deborah Burksfield also argues the trial court failed to enter the findings required

by RCW 4.84.185. In the judgment awarding fees, however, the court found "the claims

advanced against Defendant CAG were frivolous and advanced without reasonable

cause." CP at 2246. This finding is sufficient under RCW 4.84.185.

                                     Derivative Claim

       CRM argues that the trial court erred in failing to dismiss the derivative claims

brought by Deborah Burksfield on behalf ofLSL. Thus, CRM asks this court to vacate

the trial court's award of attorney fees under RCW 25.15.385. Burksfield argues that she

met the requirements for a shareholder derivative claim. We conclude that Burksfield

properly brought a derivative claim on behalf of LSL.

       Under former RCW 25.15.370:

               A member may bring an action in the superior courts in the right of a
       limited liability company to recover a judgment in its favor if managers or
       members with authority to do so have refused to bring the action or if an
       effort to cause those managers or members to bring the action is not likely
       to succeed.

Contrary to CRM's assertions, Deborah Burksfield presented evidence at trial that

she was an LSL shareholder and that she attempted to resolve the underpayment

issue by approaching Larry Sali, as owner of LSL, before filing suit. Also,

                                             9
No. 33037-1-111
Burksfield v. Sali


considering Burksfield's response to the suit, the trial court could have reasonably

determined that any effort to ask the Sali brothers to pursue claims that LSL held

against themselves and CRM would have been futile. Thus, the trial court

correctly ruled that Burksfield's claims fall within the derivative claim statute.

         CRM notes that Deborah Burksfield did not testify at trial. Nevertheless,

Larry Sali testified that Deborah Burksfield was an owner of LSL and that she

tried to resolve the dispute before filing suit. CRM cites no case that requires the

needed testimony to come from the partial company owner herself.

         CRM also contends that Deborah Burksfield failed to verify her complaint

and verification is necessary to forward a derivative action claim. The assertion is

factually false.

         Regardless of whether Deborah Burksfield complied with the statute

authorizing derivative suits, the trial court could have granted reasonable attorney

fees and costs to Deborah Burksfield and LSL on other grounds. Paragraph 3.2 of

the parties' LLC contract and RCW 4.84.330 also authorized recovery of fees and

costs.

                                   Fees on Appeal

         Deborah Burksfield requests this court award attorney fees and costs on appeal

pursuant to RCW 4.84.330 and the fee shifting provisions of paragraph 3.2 of the LSL

LLC agreement. Because Burksfield does not prevail on two of her claims, we decline to

                                             10
I
I
1
l
I
I   No. 33037-1-111
    Burksfield v. Sali
I
I


    declare her the prevailing party, and we reject her requests for fees and costs.

                                           CONCLUSION

              We affirm the trial court's denial of prejudgment interest to Deborah Burksfield

    and LSL. We affirm the trial court's grant of costs to CAG and fees and costs to Deborah

    Burksfield for the derivative suit. We deny Deborah Burksfield an award of fees on

    appeal.

           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.



                                                   Fearing, C.J.

    WE CONCUR:




                                                  11



                                                                                                 t
