Specialty Asphalt & Constr., LLC v. Lincoln County ( 2018 )

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SUSAN L CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
SPECIALTY ASPHALT &
CONSTRUCTION,LLC,
a Washington limited liability
company, and LISA JACOBSEN,
an individual.
Petitioners, No. 95085-7
V. EN BANC
LINCOLN COUNTY,a Washington
State County,
FILED JUL 2 6 2018
Respondent.
FAIRHURST, C.J.—Specialty Asphalt & Construction LLC and its majority
owner, Lisa Jacobsen (Specialty), brought suit against Lincoln County(County)for
gender discrimination, negligent misrepresentation, and breach of contract arising
out of the County's bidding and contracting process for a paving project. Through
various motions. Specialty lost all three claims at the trial court. The Court of
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
Appeals affirmed, and Specialty petitioned for review. We reverse the Court of
Appeals in part and affirm in part. We hold that Specialty defeated the County's
motion for summary judgment on the gender discrimination and negligent
misrepresentation claims but the contract claim was properly dismissed. The case is
remanded to the trial court to reinstate the two surviving claims.
I. FACTS AND PROCEDURAL HISTORY
A. Factual background
Specialty, a licensed contractor that performs paving and maintenance work,
responded to a call for bids from the County for a paving project. Jacobsen first
learned about the project when the County called her business to ask if it worked in
the area. Jacobsen then received the bid proposal via e-mail from the County. On
two separate pages,the bid proposal stated that no bond was required. Clerk's Papers
(CP)at 293("No proposal bond or performance bond will be required."), 297("No
bid bond or performance bond is required for this bid."). The bid proposal was
prepared by Phil Nollmeyer, the county operations and permit coordinator. He used
the maintenance project template that had the no bond required language because
bonds are not required for the purchase of materials or simple maintenance contracts.
The County claimed that Nollmeyer made a clerical error and that he should have
removed the no bond required language.
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
The bid proposal announced a scheduled opportunity to view the project and
scope of work prior to the bid deadline(referred to as a walk-through). Jacobsen was
the only contractor to attend the walk-through, which was led by three county
commissioners and Nollmeyer. At the beginning of the walk-through, Nollmeyer
made a comment that Jacobsen's shoes with heels were not the most appropriate
attire for the walk-through. During the walk-through, the commissioners sought
Jacobsen's recommendations for the project, which the County subsequently
incorporated into the bid proposal's addendum 1. A few days after the walk-through,
a male representative of Arrow Concrete & Asphalt Specialties, Inc.^ came to see
the paving project location. Nollmeyer showed him where the work locations were
and went over the basic tasks to be performed, essentially giving an unscheduled
private walk-through.
Prior to the bid deadline, Nollmeyer called Jacobsen and asked if Specialty
was going to submit a bid. He discouraged her from bidding because the project was
more trouble than it was worth.^ Nevertheless, Jacobsen submitted a bid for the
project on behalf of Specialty. The County also received a bid from Arrow.
According to the addendum 1, the bids would be opened on August 5, 2013.
^ Arrow is owned by David Lawless, an acquaintance of Nollmeyer's.
^ Jacobsen believed Nollmeyer's comments and attitude via the phone call implied that he
did not believe that her company, owned and operated by a woman, could handle the complexity
of the job. Her beliefs about the motivation for Nollmeyer's alleged phone call are speculation,
and we do not rely on them. "A nonmoving party in a summary judgment may not rely on
speculation." Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13,721 P.2d 1 (1986).
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
On August 6,2013,the County awarded the project to Specialty. The day after
awarding the project to Specialty, the County began Department of Labor and
Industries(L&I) contractor tracking which allowed the County to track Specialty's
status on an ongoing basis.^ Nollmeyer testified that the County normally checks
contractor status on the L&I website prior to awarding bids to ensure that the
contractors are not disbarred."^ He admitted that he checked Specialty's status prior
to awarding the bid but could not recall if he did so for Arrow. He denies having
initiated contractor tracking, but the evidence shows that someone at the County did,
unless it truly was a clerical error on L&I's part. Wash. Supreme Court oral
argument. Specialty Asphalt & Constr. LLC v. Lincoln County, No. 95085-7(May
15, 2018), at 30 min., 40 sec., video recording by TVW, Washington State's Public
Affairs Network, https://www.tvw.org/watch/?eventID=2018051035.
Several days after August 5, 2013, because she had not yet been notified of
the award, Jacobsen called the County and asked who had received the award. The
woman on the phone, either Shelly Johnston, the county auditor, or Marci Patterson,
the deputy clerk to the board of commissioners, told Jacobsen that Specialty had
gotten the award, Nollmeyer had been directed to call her with news of the award.
^ Jacobsen believed that the County initiated contractor tracking because Nollmeyer was
disappointed that Specialty had received the award and he hoped to find a reason to disqualify the
company. Jacobsen's beliefs about the motivation for Nollmeyer's alleged actions are speculation
and we do not rely on them. Seven Gables Corp., 106 Wn.2d at 13.
Checking contractor status is different from tracking.
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
and a notification had been sent by mail. The day after her phone conversation,
Jacobsen received the award letter (dated August 6, 2013) by mail and the
commissioners' order signed by the county commissioners. Jacobsen began to
mobilize resources and materials for the project and told her assistant to stop
accepting new jobs because their schedule would be full for the season.
A few days later, Jacobsen received a letter from the County (dated August
12,2013)with the contract and contract bond. Jacobsen signed the contract on behalf
of Specialty on August 16, 2013, and on the contract bond, she wrote "[n]o proposal
bond or performance bond required as per page #2" and left it unsigned. CP at 307.
She mailed both documents back to the County. The county commissioners did not
countersign. After receiving the documents, Johnston called Jacobsen and told her
that the County now required a bond for the project. Jacobsen objected to this change
because the bid explicitly provided that no bond was required and because she
believed the bond to be a significant item. Jacobsen also explained that Specialty
had performed similar public works projects for the city ofDavenport,located within
the county, without a bond, and that the County could accept responsibility for
proceeding without a bond.
On August 19, 2013,the County withdrew the bid award. On or about August
20, 2013, a new call for bids was sent out with a bond requirement. Specialty sent a
demand letter (dated August 23, 2013) requesting that the County maintain its bid
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
award. In the letter, Specialty conceded that the bond was statutorily required by
RCW 39.08.010, but claimed that failure to require the bond does not void the
contract. In response, the County ceased and withdrew the rebidding process. The
County was willing to proceed with Specialty's award ofthe original bid so long as
Specialty obtained the bond. The County also offered to reimburse Specialty for the
expense ofthe bond premium. Jacobsen believed that this would expose both parties
to liability for collusion or bid rigging. Sometime after August 19, 2013, Jacobsen
had a phone conversation with county commissioner Scott Hutsell, who described
the situation as a mess. He assured Jacobsen that he would investigate the available
options that would enable the project to go forward with Specialty.
The following spring, April 2014,the County contacted Specialty to see ifthe
project could be done with the bond at the County's expense. The County indicated
that in the alternative it would look to use the small works roster to complete the
project and invited Specialty to be included on the roster. Shortly thereafter.
Specialty filed suit.
B. Procedural history
In May 2014, Specialty sued the County for breach of contract, seeking
injunctive and declaratory relief.^ In October 2015, over a year later. Specialty filed
Specialty's prayer for relief was as follows:
Specialty Asphalt & Constr. v. Lincoln County, No,95085-7
a motion for leave to add a party and amend the complaint. Specialty sought to add
intervenor Jacobsen as an additional plaintiff and add claims of negligent
misrepresentation and gender discrimination under RCW 49.60.030. The trial court
granted the motion over the County's objection.
The County filed a motion for summary judgment, seeking dismissal of all
claims. The trial court granted partial summary judgment and dismissed the
discrimination and negligent misrepresentation claims but denied the motion with
regard to the contract claim. Specialty filed a motion for reconsideration ofthe trial
court's summary judgment order, which the trial court denied.
After the summary judgment order. Specialty filed a motion for leave to file
a second amended complaint. Specialty sought to modify the prayer for relief on the
contract claim to add monetary damages in an amount to be proved at trial. The
County objected to the motion, arguing that the amended complaint was futile
4.1 For an order for injunctive reliefto enjoin the execution ofa contract
between Lincoln County and any other bidder for the Project;
4.2 For a mandatory injunction in favor of Specialty Asphalt to
complete the Project without any requirement for a bond;
4.3 For a declaratory judgment that the type of work requested for the
Project, which is maintenance work not construction work, and does not require a
bond;
4.4 For a Declaratory Judgment that Lincoln County's payment of the
bond does not constitute bid rigging or collusion;
4.5 For a judgment that Lincoln County pay the bond pursuant to RCW
39.08.015;
4.6 For an award of reasonable attorney fees and other costs permitted
by law;
4.7 For such other relief the Court deems fair and equitable.
CP at 7.
7
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
because Washington law provided that an injunction was the exclusive remedy for
the claim. The trial court agreed and denied the motion. The County conceded the
breach of contract issue, stipulated that Specialty could complete the project under
the terms of the written contract that Specialty signed on August 16, 2013 (without
a bond), and moved to compel specific performance or, alternatively, dismiss the
case as moot. Specialty objected, but the trial court issued an order granting the
County's motion. In that order, the trial court issued a deadline for Specialty to
declare whether it intended to complete the project. The trial court also found that
Specialty would be entitled to recover reasonable increased costs for the project
because of the County's delays. The County was ordered to allow Specialty to
perform the contract without a bond. Specialty filed a timely notice declaring its
intent to not perform the contract. Its stated reasons included that the cost of the
project had increased, the condition of the parking lot had deteriorated, the law
governing the project had changed, and it was unclear whether Specialty would be
able to recover the costs associated with the project. The County argued that since
Specialty chose not to avail itself of the only remaining relief, no justiciable
controversy remained and the case should be dismissed. The trial court agreed and
dismissed the case as moot.
Specialty appealed, and the Court of Appeals affirmed. Specialty Asphalt &
Constr., LLCv. Lincoln County, No. 34480-1-III, slip op. at 1 (Wash. Ct. App. Aug.
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
29, 2017)(unpublished), https://www.courts.wa.gov/opinions/pdf/344801_unp.pdf.
Specialty petitioned for review, which we granted.
II. ISSUES
A. Whether summary judgment dismissal of the gender discrimination
claim was proper.
B. Whether summary judgment dismissal of the negligent
misrepresentation claim was proper.
C. Whether denial of the motion to amend and dismissal of the contract
claim was proper.
III. ANALYSIS
A. Summary judgment dismissal of the gender discrimination claim was
improper
1. Standard ofreview
We review the trial court's grant of summary judgment de novo. Camicia v.
Howards Wright Constr. Co., 179 Wn.2d 684,693,317 P.3d 987(2014). Summary
judgment is proper only when there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. CR 56(c). We consider
all facts and reasonable inferences in the light most favorable to the nonmoving
party, but the nonmoving party may not rely on speculation. Seven Gables Corp. v.
MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986); Hiatt v. Walker
Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992) (to overcome summary
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Specialty Asphalt c& Constr. v. Lincoln County, No. 95085-7
judgment,"the employee must do more than express an opinion or make conclusory
statements"). "When the record contains reasonable but competing inferences of
both discrimination and nondiscrimination, the trier of fact must determine the true
motivation." iScrzvewer v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014)
(citing Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 90, 272 P.3d 865 (2012)).
"However,'when reasonable minds could reach but one conclusion, questions of
fact may be determined as a matter oflaw.'" Ruffv. County ofKing, 125 Wn.2d 697,
703-04, 887 P.2d 886 (1995)(quoting Hartley v. State, 103 Wn.2d 768, 775, 698
P.2d 77(1985)).
2. We reverse the Court of Appeals because there are competing
inferences ofdiscrimination and nondiscrimination
Jacobsen brought a claim ofgender discrimination under the Washington Law
Against Discrimination, RCW 49.60.030.^ The purpose ofthe law is to deter and to
eradicate discrimination in Washington. Mackay v. Acorn Custom Cabinetry,
Inc., Ill Wn.2d 302, 309-10, 898 P.2d 284 (1995). "[A]n independent contractor
may bring an action for discrimination in the making or performance of[a] contract
^ RCW 49.60.030 does not provide the criteria for a prima facie claim,so we crafted criteria
through case law.
[T]he plaintiff in a sex discrimination case must show (1) membership in a
protected class;(2)the plaintiff was similarly situated to members of the opposite
sex, i.e., that he or she was qualified for the position applied for or was performing
substantially equal work; (3) because of plaintiffs sex he or she was treated
differently than members ofthe opposite sex.
Marquis v. City ofSpokane, 130 Wn.2d 97, 113-14, 922 P.2d 43 (1996).
10
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
for personal services." Marquis v. City ofSpokane, 130 Wn.2d 97, 100-01,922 P.2d
43(1996). To establish discriminatory action,"plaintiffs may rely on circumstantial,
indirect, and inferential evidence." Mikkelsen v. Pub. Util. Dist. No. 1 ofKittitas
County, 189 Wn.2d 516, 526, 404 P.3d 464(2017)(assessing a claim under RCW
49.60.180). Specialty's evidence should be "taken together" when considering
whether there are "'reasonable but competing inferences of both discrimination and
nondiscrimination.'"Id. at 535-36(emphasis omitted)(quoting//?// v. BCTIIncome
Fund-I, 144 Wn.2d 172, 186, 23 P.3d 440(2001)).
Jacobsen was required to show that she was somehow treated differently from
similarly situated members of the opposite sex because of her gender. The Marquis
case provides three examples to do so:
[(!)] [T]hat he or she was denied the position, [(2)] was offered a
contract only on terms which made the performance of the job more
onerous or less lucrative than contracts given to members of the
opposite sex, or,[(3)] once offered the contract, was treated in a manner
that made the performance of the work more difficult than that of
members ofthe opposite sex who were similarly situated.
130 Wn.2d at 113-14. Specialty's claim falls within the third example.'^ After
Specialty was awarded the bid, the performance ofthe work became more difficult.
We consider the County's treatment of Specialty(and Jacobsen)before and after the
award.
The first two examples are inapplieable. Specialty was awarded the bid, so Jacobsen
cannot claim that she was denied the position. Only one bid was awarded and one contract formed,
so there were no contracts given to members of the opposite sex to compare against.
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Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
a. Direct evidence ofdiscrimination
Specialty argued that Nollmeyer's alleged comment about Jacobsen's attire
and alleged phone call are direct evidence of discrimination. At the walk-through,
Jacobsen described that she "observed the condition ofthe potholes, the parking lot
in general, and the cracks in the paving." CP at 412. She was told that her shoes were
not the most appropriate attire for the walk-through. This comment, standing alone,
likely does not create a reasonable inference of discrimination. It may have even
been a prudent comment to avoid potential injuries.^ After the walk-through,
Nollmeyer called Jacobsen and discouraged her from bidding on the paving project.
The phone call is evidence of discriminatory intent, not benevolence. Cf. Wash.
Supreme Court oral argument,supra, at 31 min., 55 sec.
b. Comparative evidence ofSpecialty and Arrow
Specialty argued that it was treated differently from Arrow, a similarly
situated business, because Arrow received an unscheduled private walk-through. In
comparison. Specialty attended the scheduled walk-through with Nollmeyer and
three county commissioners. Both contractors received information about the basic
^ For example, people may file suit ifthey fall or are injured in parking lots. See, e.g., Jones
V. Wal-Mart Stores K, LP, 2014-CA-01826-COA, 187 So. 3d 1100, 1101 (Miss. Ct. App. 2016)
(customer sued Wal-Mart after tripping over a parking lot pothole); Chance v. Wal-Mart E., LP,
3:14-cv-363-WHB-RHW,2015 WL 4496442(S.D. Miss. July 23,2015)(unpublished)(customer
sued Wal-Mart after injuring herself in an indentation in the parking lot); Quick v. Strategic Rest.
Acquisition Co., 3:12-cv-301-CWR-LRA, 2013 WL 1305583 (S.D. Miss. Mar. 28, 2013)
(unpublished)(customer sued Burger King for injuries after tripping on a pothole in the parking
lot).
12
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
tasks to be performed, but there may be an inference that Nollmeyer was treating
Arrow more favorably by departing from the scheduled walk-through per the terms
of the bid proposal. In addition, Nollmeyer explained that the County normally
checks contractor status on the L&I website prior to awarding bids, but in this case,
he admitted to checking only Specialty's status. He could not recall if he checked
Arrow's status. When viewed in light of all the other evidence, the inference of
discrimination becomes stronger.
c. Postaward treatment ofSpecialty
After Specialty received the award, the County continued to take actions that
underscore our inference of discrimination. The County tracked Specialty's status
via the L&I website^ and altered the terms ofthe contract by requiring a bond for the
project. Normally bidders are checked before an award is made, and the County
offered no explanation for why Specialty was subjected to ongoing tracking
postaward. With regard to the bond, the County claimed that it should have been
included in the bid proposal yet was omitted due to a clerical error. The County
believed the bond to be statutorily mandated by RCW 39.08.010, and Specialty
conceded this. Nonetheless, Specialty argued that failure to require the bond did not
void the contract.
® As noted, the County disputes this and claims it must have been a clerical error by L&I.
13
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
While the County did make multiple attempts to ensure that Specialty still
performed the project (either by obtaining a bond with the premium expense
reimbursed, rebidding the project with a bond, or through work on the small works
roster), none ofthese options adhered to Specialty's award, as given. Eventually the
County conceded the breach of contract issue and agreed to let Specialty perform
the work without a bond. These inconsistent positions about the bond requirement
create doubt about the accuracy of the County's alleged nondiscriminatory reason,
that the entire bond issue was a clerical error.
d. The evidence "taken together"
Some elements of Specialty's evidence, standing alone, might not create a
reasonable inference of discrimination, but when we view the evidence together,the
inference of discrimination becomes quite strong. Because there are reasonable
inferences of discrimination and nondiscrimination, the record is sufficient to defeat
a motion for summaryjudgment. Mikkelsen, 189 Wn.2d at 536. We reverse the Court
of Appeals and reinstate the gender discrimination claim.
The County took the position that Speeialty failed to make a prima facie claim, so it
never actually assumed any burden to prove a legitimate nondiscriminatory reason under the
framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668(1973).
14
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
B. Summary judgment dismissal of the negligent misrepresentation claim was
improper''
1. Standard ofreview
We review the trial court's grant of summary judgment de novo. See supra
Section III.A.l. We review the issue de novo and consider all facts and reasonable
inferences in the light most favorable to the nonmoving party. Mohr v. Grant, 153
Wn.2d 812, 821, 108 P.3d 768(2005)(plurality opinion).
2. We reverse the Court ofAppeals because Specialty provided evidence
ofits reliance damages, which are recoverable
Specialty sued the County for negligent misrepresentation. To prevail on such
a claim, a plaintiff must prove, by clear, cogent, and convincing evidence that
(1) the defendant supplied information for the guidance of others in
their business transactions that was false, (2) the defendant knew or
should have known that the information was supplied to guide the
plaintiff in his business transactions,(3)the defendant was negligent in
obtaining or communicating the false information, (4) the plaintiff
relied on the false information, (5) the plaintiffs reliance was
reasonable, and (6) the false information proximately caused the
plaintiff damages.
^' The County argued that Speeialty waived its negligent misrepresentation elaim by failing
to "contend that the trial court or the Court of Appeals erred in its dismissal ofthe claim." Resp't's
Suppl. Br. at 5. When an assignment oferror "was neither argued nor briefed," we deem it waived.
Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 191, 829 P.2d 1061 (1992). Similarly,
when the petitioners "made no arguments to support [their] issue in either their petition for review
or supplemental brief," we did not consider the issue. In re Det. ofA.S., 138 Wn.2d 898,922 n.lO,
982 P.2d 1156(1999). In contrast, in this ease. Specialty explained that it was appealing the Court
of Appeals decision affirming summary judgment for gender discrimination and negligent
misrepresentation, provided a section for the summary judgment standard of review, made some
attempt to briefthe issue in its motion for discretionary review, albeit minimal, and then dedicated
nearly six pages to the argument in its supplemental brief. The claim is not waived.
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Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
Ross V. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007); Lawyers Title Ins. Corp.
V. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002) (Washington has adopted
Restatement(Second) of Torts § 552(Am. Law Inst. 1965)). The Court of Appeals
affirmed the trial court's summary judgment dismissal, finding that Specialty failed
to prove damages. Specialty Asphalt & Constr., slip op. at 10-11.
We agree with Specialty that summary judgment was improper because
Specialty provided evidence of its recoverable reliance damages.See Restatement
§ 552B(l)(b)(recoverable damages include "pecuniary loss suffered otherwise as a
consequence of the plaintiffs reliance upon the misrepresentation"). The
Restatement applies the "out-of-pocket loss" rule as the measure of damages, which
is the same rule that is stated in § 549(1), so comments a through f of that section
are applicable. Restatement § 552B cmt. a. "[Ljoss may be sustained... when he
has incurred expenses in preparation for a use ofthe article for which it would have
been appropriate if the representation had been true." Restatement § 549(1) cmt.
a. (emphasis added). The Court of Appeals found that Specialty had no damages
simply because "Specialty never performed on the contract." Specialty Asphalt &
Constr., slip op. at 11. This ignores the availability of reliance damages that are
incurred prior to performance. Even though the County initially offered to cover the
cost ofthe bond and later rescinded the need for the bond, potentially alleviating the
pecuniary damage. Specialty provided evidence that it would cost more than the
16
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
bond premium to acquire a bond. Appellants' Suppl. Br. at 15; CP at 285-86
(referring to administrative time to prepare for the bond and a bond cap that could
preclude the company from bidding on other more lucrative projects that require
bonds). By the time the bond requirement was removed, over two years had passed
so that the project"no longer existed" in the same financial state. Appellants' Suppl.
Br. at 16; CP at 412 (the condition of the work site deteriorated and would require
more labor and materials).
The County argued that summary judgment was proper because Specialty
could not have justifiably relied on the misinformation in the bid, but this is not a
basis for affirming summary judgment. ESCA Corp. v. KPMG Peat Marwick, 135
Wn.2d 820, 828, 959 P.2d 651 (1998)("Whether a party justifiably relied upon a
misrepresentation is an issue of fact.").
3. The public duty doctrine does not bar the claim
Alternatively, the County argued that Specialty's negligent misrepresentation
claim is barred by the public duty doctrine.'^ Under the public duty doctrine,'"no
liability may be imposed for a public official's negligent conduct unless it is shown
that the duty breached was owed to the injured person as an individual and was not
At the Court of Appeals, Specialty argued that the puhlic duty doctrine does not apply
because the County was performing a proprietary function and, even if it does apply, there was a
special relationship between the parties creating an exception to the doctrine. Specialty did not
brief this issue at our court, but based on the County's briefing, we consider the doctrine and its
exceptions.
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Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
merely the breach ofan obligation owed to the public in general. Babcock v. Mason
County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001) (plurality
opinion)(internal quotation marks omitted)(quoting Taylor v. Stevens County, 111
Wn.2d 159, 163, 759 P.2d 447 (1988)). An exception to the public duty doctrine
applies if there is a "special relationship" between the parties. Id. at 786. A special
relationship arises where "'(1) there is direct contact or privity between the public
official and the injured plaintiff which sets the latter apart from the general public,
and (2)there are express assurances given by a public official, which (3)give[] rise
to justifiable reliance on the part of the plaintiff.'" Id. (internal quotation marks
omitted)(quoting Beal v. City ofSeattle, 134 Wn.2d 769,785,954 P.2d 237(1998)).
Here, the parties were in privity because the trial court found that an enforceable
contract had been formed. The contract thus formed the basis for express assurances
and gave rise to justifiable reliance by Specialty. The public duty doctrine does not
bar the claim because the parties formed a "special relationship."
Accordingly, we reverse the Court of Appeals and reinstate the negligent
misrepresentation claim. Specialty alleged pecuniary damages sufficient to
overcome a summary judgment dismissal, whether Specialty justifiability relied on
the misrepresentation is a factual issue, and the claim is not barred by the public duty
doctrine.
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Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
C. Denial ofthe motion to amend and dismissal ofthe contract claim was
proper'^
1. Standard ofreview
We review the trial court's denial ofthe motion to amend and dismissal ofthe
contract claim for manifest abuse of discretion. McDonald v. State Farm Fire & Gas.
Co., 119 Wn.2d 724, 737, 837 P.2d 1000 (1992). "The trial court's decision 'will
not be disturbed on review except on a clear showing of abuse of discretion, that is,
discretion manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.'" Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999)
(quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
2. We affirm the Court ofAppeals because injunctive reliefis the
exclusive remedyfor Specialty's contract claim
Specialty argued that it was entitled to pursue monetary damages for its breach
of contract claim, analogizing its case to Scoccolo Construction, Inc. v. City of
Renton, 158 Wn.2d 506, 145 P.3d 371 (2006). The Court of Appeals and the trial
court instead relied on Skyline Contractors, Inc. v. Spokane Housing Authority, 172
Wn. App. 193, 289 P.3d 690 (2012). We agree with the Court of Appeals and the
The County argued that Specialty waived any relief on its contract claim because
Specialty already gave notice of its inability to perform the paving project. This did not waive the
claim because Specialty still sought monetary damages. The County also argued that Specialty
waived the claim because it failed to brief the issue, but that assertion is easily refuted. See Mot.
for Discr. Review at 18-20.
19
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
trial court that Specialty's exclusive relief for its contract claim was an injunction,
not damages.
In Scoccolo, we affirmed the monetary damages award in favor of Scoccolo,
the contractor, after Scoccolo completed the project but incurred damages stemming
from delays attributed to Renton. 158 Wn.2d at 509-10. The case presents an obvious
distinguishing factor—Scoccolo completed the project; Specialty did not, nor did it
even begin performance. The trial court addressed this scenario in its order granting
the County's motion to compel, explaining that since "the costs of completing this
project have likely increased. Plaintiff would be entitled to recover reasonable
increased costs because ofthe County's delays." CP at 598. Specialty still chose not
to perform.
In contrast, in Skyline, the facts were much more analogous to Specialty's
situation. The Spokane Housing Authority(SKA)awarded a public works contract
to Skyline, creating mutual contractual responsibilities. Skyline, 172 Wn. App. at
200. The SKA then repudiated its agreement and contracted with another party. Id.
at 204."Had this not been a public works contract... Skyline [would have a claim]
for damages for breach of contract." Id. The court in Skyline appropriately relied on
principles established by this court. In Mottner v. Town of Mercer Island, we
explained that an injunction, not monetary damages, is the "appropriate remedy for
the bidder on a public work contract who feels aggrieved by the action of the
20
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
government." 75 Wn.2d 575, 579, 452 P.2d 750 (1969). Similarly, monetary
damages were denied in Peerless Food Products, Inc. v. State, 119 Wn.2d 584, 835
P.2d 1012(1992).
[Wjhile equitable, extraordinary, or declarative relief may serve the
public interest by preventing the award and execution of a contract for
an excessive amount, permitting damages in such cases serves the
bidder's interest alone, and is contrary to the public interest the
competitive bidding laws were designed to protect, further burdening a
treasury already injured by paying too high a price for the goods or
services.
Id. at 591 (emphasis omitted) (quoting James L. Isham, Annotation, Public
Contracts: Low Bidder's Monetary Relief against State or Local Agency for
Nonaward ofContract, 65 A.L.R.4th 93, § 2[a](1988)).
The trial court properly denied the motion to amend and dismissed the contract
claim because Specialty can only pursue an injunction. Though we affirm the Court
of Appeals on this issue. Specialty is not barred from recovering monetary damages
from the County. To do so. Specialty must pursue them through its negligent
misrepresentation claim, supra Section III.B, not a breach of contract claim.
IV. CONCLUSION
Specialty sued the County for gender discrimination, negligent
misrepresentation, and breach of contract, but lost all three claims at the trial court.
The Court of Appeals affirmed. We reverse the Court of Appeals in part and affirm
in part. We reverse the Court of Appeals with regard to the gender discrimination
21
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
and negligent misrepresentation claims. Specialty defeated the County's motion for
summary judgment, and those claims are hereby reinstated. We affirm the Court of
Appeals holding that an injunction is the exclusive remedy for Specialty's contract
claim. That claim was properly dismissed. Neither party is awarded attorney fees.''^
Both parties requested an award of reasonable attorney fees and eosts on appeal. RAP
18.1(b)requires "'[a]rgument and eitation to authority' as neeessary to inform the court of grounds
for an award, not merely 'a bald request for attorney fees.'" Hudson v. Hapner, 170 Wn.2d 22, 33,
239 P.3d 579(2010)(alteration in original)(quoting Wilson Court Ltd. P'ship v. Tony Maroni's,
Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998)). Specialty requested an award of reasonable
attorney fees under the Washington Law Against Discrimination (WLAD). This slight reference
is hardly an argument. Nonetheless, we recognize that RCW 49.60.030(2) provides for recovery
of attomey fees. But Specialty's request is premature. Specialty may recover attomey fees if the
trial court finds that the County violated WLAD on remand. The County sought attomey fees on
the basis that Specialty's appeal was frivolous. This argument surely fails for the gender
discrimination and negligent misrepresentation claims. With regard to the contract claim, we agree
with the Court of Appeals that there were debatable issues and thus deny the request.
22
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
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23
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
(Gordon McCloud, J., concurring in part/dissenting part)
No. 95085-7
GORDON McCLOUD, J. (concurring in part/dissenting in part)—I agree
with the majority's analysis of the negligent misrepresentation and breach of
contract claims. The negligent misrepresentation claim clearly survives summary
judgment; the breach of contract claim clearly fails on summary judgment.
I also agree with the bulk of the majority's analysis of the gender
discrimination claim: "[w]e consider all facts and reasonable inferences in the light
most favorable to the nonmoving party"; "the nonmoving party may not rely on
speculation," majority at 9; we view the evidence cumulatively to decide "whether
there are 'reasonable but competing inferences of both discrimination and
nondiscrimination,"' id. at 11 (internal quotation marks omitted){(ypotmg Mikkelsen
V. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 536, 404 P.3d 464(2017)).
But I disagree with the majority's application ofthose rules to the facts ofthis
case. The majority is certainly correct that Lincoln County (County)'s comment
about the high heels worn by Specialty Asphalt & Construction LLC's owner, Lisa
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
(Gordon McCloud, J., concurring in part/dissenting part)
Jacobsen, cannot give rise to an inference of discrimination; there is absolutely no
indication that this comment about inappropriate attire at a construction work site
was directed at Jacobsen due to gender rather than the more obvious safety
concern. Clerk's Papers at 280, para. 9 (Aff. of Lisa Jacobsen in Opp'n to Def.'s
Mot. for Summ. J.) ("At the beginning of the walk-through, in front of the
Commissioners, Mr. Nollmeyer had made a comment that the shoes with he[e]ls that
I was wearing was not the most appropriate attire for a walk-through."). But the
remaining factors upon which the majority relies do not give rise to an inference of
gender discrimination either. Those remaining factors are providing a bidding
competitor on this relatively small public works project with an unscheduled walk
through (majority at 12), checking Specialty's contractor status on the appropriate
state website while not remembering whether the competing bidder's status was
checked {id. at 13), tracking Specialty's status on that website after awarding the bid
{id.), and "alter[ing]the terms ofthe contract by requiring a bond for the project." Id.Providing a bidding competitor on a relatively small public works project with
an unscheduled and likely uncomplicated walk-through as a courtesy, when there is
no indication that such a courtesy was or would have been denied to Jacobsen, does
not give rise to an inference of discrimination in my mind. Checking and tracking
Specialty's contractor status on the appropriate state website set up for that purpose
Specialty Asphalt & Constr. v. Lincoln County, No. 95085-7
(Gordon McCIoud, J., concurring in part/dissenting part)
while not remembering whether the competing bidder's status was checked does not
give rise to an inference of discrimination in my mind either; checking seems like
an indication of prudence, not discrimination.
The final fact upon which the majority relies is the County's decision to alter
what was clearly a significant contract term after it awarded the bid. That is certainly
an actionable alteration; that is the reason that the negligent misrepresentation claim
clearly survives summary judgment. But when combined with the fact that the
County took so many other steps to try to address this problem—like "the County['s]
. . . multiple attempts to ensure that Specialty still performed the project (either by
obtaining a bond with the premium expense reimbursed, rebidding the project with
a bond, or through work on the small works roster)," majority at 14—^this does not
give rise to an inference ofgender discrimination in my mind either. Instead, it gives
rise to an inference of negligent misrepresentation—^which is what I think this case
is really about.
For these reasons, I respectfully concur in part and dissent in part.
Speciality Asphalt & Constr. v. Lincoln County, No. 95085-7
(Gordon McCloud, J., concurring in part/dissenting part)