Air Serv Corporation v. Flight Services & Systems, Inc. ( 2015 )

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2015APR-6 Mill: Oh
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
AIR SERV CORPORATION, No. 71103-2-
Respondent,
FLIGHT SERVICES & SYSTEMS,
INC., UNPUBLISHED OPINION
Appellant. FILED: April 6, 2015
Verellen, A.C.J. — In a bench trial to determine damages for unjust enrichment
or quantum meruit, findings of fact and conclusions of law must specify the measure
and quantity of damages. Here, the trial court entered judgment for Air Serv
Corporation (Air Serv) against Flight Services &Systems, Inc. (FSS) for $200,000,
including attorney fees, and ordered an additional amount of $35,000 as sanctions for
violations of various court rules. FSS appeals, contending that the trial court applied the
wrong measure of damages, improperly excluded evidence, and erred in imposing an
attorney fees award and sanctions. Because we cannot discern from the trial court's
findings the basis for the award, we remand for further findings on the existing record.
FACTS
On April 14, 2011, FSS entered into a contract with Delta Airlines to provide
cabin cleaning services at Seattle-Tacoma airport for Delta's domestic and international
flights. FSS was to begin providing these services on May 17, 2011. In order to provide
No. 71103-2-1/2
cleaning services for international flights, FSS was required to obtain a federal
compliance agreement from the United States Department of Agriculture.
Sometime in May 2011, the United States Customs and Border Protection (CBP)
notified Delta that FSS would not be permitted to board Delta's international flights
because it did not have the required compliance agreement. CBP identified other
companies that were in compliance, including Air Serv. Because FSS was unable to
obtain a compliance agreement for at least another six to eight weeks and Delta had an
immediate need for cleaning services on international flights beginning the next day,
Delta consulted with CPB about having Air Serv provide temporary services until FSS
obtained its own compliance agreement.
CPB agreed to allow FSS to provide the cleaning services without the
compliance agreement so long as Air Serv supervised those services. Specifically, Air
Serv would be required to supervise the handling and transfer of trash collected on the
plane. Air Serv agreed to do so, and beginning on May 28, 2011, provided supervision
of FSS's handling and transfer of the trash during cleanings.
Approximately two weeks later, Air Serv proposed to FSS a rate of $250 per
plane for its services. After FSS objected to this amount, Air Serv proposed a lower rate
of $175 per plane. Beginning in July 2011, Air Serv sent invoices to FSS at this price,
for a total of 476 flights that were serviced during the temporary arrangement.
FSS did not pay the invoices, but Air Serv continued to provide the temporary
services until FSS obtained its federal compliance agreement in September 2011. On
September 2, 2011, Air Serv ceased providing its supervisory services to FSS. FSS did
not pay the invoices, which totaled $83,300. On September 20, 2011, FSS disputed the
No. 71103-2-1/3
amount on the invoices and informed Air Serv that it would only pay a total of $3,511.10,
based upon an hourly rate of $14.05.
On January 6, 2012, Air Serv filed a complaint against FSS seeking damages for
breach of contract, consumer protection act violations, unjust enrichment and quantum
meruit. The trial court dismissed the consumer protection and breach of contract claims
on summary judgment, finding that there was no meeting of the minds on the price for
the services rendered by Air Serv. But the trial court granted partial summary judgment
for Air Serv for liability under the unjust enrichment and quantum meruit theories, with
damages to be proven at trial.
After a bench trial on damages, the trial court found that FSS owed $83,300 to
Air Serv for its services and $116,700 in attorney fees, for a total judgment award of
$200,000. The court further ordered an additional $35,000 in sanctions against FSS
based on "numerous violations of the rules of the Court, including, but not limited to
CR 11, CR 26(g), CR 37(b) & (d), CR 56(g) and the Court's local rules."1 FSS appeals.
DISCUSSION
Measure of Damages
FSS contends that the trial court applied the wrong measure of damages. FSS
argues that instead of basing the damages award on the reasonable market rate, the trial
court erroneously awarded expectation damages, a contract remedy that is unavailable
here because the breach of contract claim was dismissed. Because the trial court's
findings are inadequate for us to review this claim, we remand for further findings.
1 Clerk's Papers (CP) at 2303. The trial court awarded attorney fees alternatively
as part of a "make whole" theory of damages, or as part of the sanctions for FSS's
violations of court rules.
No. 71103-2-1/4
Unjust enrichment and quantum meruit are methods of recovery for contracts
"implied in law" and contracts "implied in fact."2 Unjust enrichment is founded on
notions of justice and equity and implies a contract in law to allow recovery for the value
of a benefit conferred absent any contractual relationship when "fairness and justice
require it."3 Quantum meruit is founded in the law of contracts and implies a contract in
fact when the defendant requests work, the plaintiff expects payment for the work, and
the defendant knows or should know the plaintiffexpects payment for the work.4
Accordingly, recovery for quantum meruit is limited to the value of services rendered,
while "'unjust enrichment applies to a far broader category of cases."'5
The measure of recovery for unjust enrichment to a faultless claimant is either
(1) "'the amount which the benefit conferred would have cost the defendant had it
obtained the benefit from some other person in plaintiffs position,'" or (2) "'the extent to
which the other party's property has been increased in value or his other interests
advanced.'"6 When services have been provided, the first measure is typically
represented by the market value of the services rendered, while the second measure
involves disgorgement of the profit the defendant received as a result of the services
rendered.7
2 Young v. Young. 164 Wash. 2d 477, 483, 191 P.3d 1258 (2008).
3 \± at 483-84.
4 Id, at 486.
5]d. at 486 (quoting Bailie Commc'ns Ltd. v. Trend Bus. Svs. Inc., 61 Wash. App.
151, 160, 810 P.2d 12 (1991)).
6 \± at 487 (quoting Noel v. Cole, 98 Wash. 2d 375, 383, 655 P.2d 245 (1982)).
7 See id. at 487-88.
No. 71103-2-1/5
Quantum meruit damages are measured by "the reasonable value of services."8
While also typically represented by the market value, this measure can be calculated in
a variety of ways.9
Here, the parties presented limited evidence to the trial court to establish the
measure of damages under either theory. On market value, Air Serv took the position
that the services were unique and that there was no market. In its discovery responses,
FSS pointed to a single example of a "subcontractor" for cleaning services and alleged
a custom and practice in the industry.10 But in depositions, FSS's designated speaking
agent Robert P. Weitzel could not recall the names of any companies that provided
such services in the past and could not recall or was not aware of the responses of
other companies to FSS's inquiries to provide the service Air Serv provided. While
Weitzel stated he was aware of one prior occasion when FSS was involved in a similar
arrangement long ago, he could not recall which company was involved or the price for
such services. Because FSS did not provide discovery related to a market value, the
trial court granted Air Serv's motion in limine to preclude FSS from offering evidence of
market value.11
At trial, Air Serv presented evidence of how it arrived at the $175 price per plane
that was invoiced but ultimately rejected by FSS. Toan Nguyen, who handled pricing for
8|g\at485.
9 See Losli v. Foster, 37 Wash. 2d 220, 232, 222 P.2d 824 (1950) (actual cost of
labor and materials); Irwin Concrete Inc. v. Sun Coast Properties, Inc., 33 Wash. App.
190, 653 P.2d 1331 (1982) (various contract prices); Modern Builders, Inc. v. Manke, 27
Wash. App. 86, 91, 93-95, 614 P.2d 1332 (1980) (fair market value of improvements or
costs plus a reasonable profit).
10 CP at 306-07.
11 As discussed below, FSS's challenge to this ruling lacks merit.
No. 71103-2-1/6
Air Serv, testified that the pricing was based on labor, equipment, associated profit and
liability, i.e., the financial and operational risk involved in allowing FSS to use its
compliance agreement. Nguyen explained the breakdown of the first quote of $250 per
plane as $60 for labor of three people, $30 profit, $10 for equipment and fuel
maintenance, and $150 for risk of liability. He further testified that he lowered the price
to $175 per plane to take into account that Air Serv would be providing supervisory
services rather than actual cleaning based upon $20 for labor, no costs for equipment or
fuel, a reduced price of $5 for profit, and $150 for liability risk. Air Serv also presented
testimony, and the trial court found, that FSS told Air Serv it would pay the $175 per
plane charge and that Air Serv relied upon that representation.
In support of its unjust enrichment theory based on disgorgement of profits, Air
Serv presented evidence of revenues FSS received on the Delta contract during the
period of time that Air Serv performed work for FSS. Air Serv presented invoices that
FSS sent to Delta showing total charges for all services, domestic and international, of
approximately $414,000. The charges for services itemized as "international" flights on
these invoices totaled $77,730.50.12 The invoices also listed additional charges,
including "fixed fees." These were likely for services that were provided for both
international and domestic flights but were not parsed out by FSS, despite discovery
requests to do so.
12 While FSS refers to invoices showing total gross revenues for international
flights as $62,595.73, these invoices were never provided in discovery or submitted to
the trial court and are therefore not part of the record for consideration by this court.
Copies of these invoices have simply been appended to FSS's briefwithout any motion
to supplement the record or any basis for doing so.
No. 71103-2-1/7
Air Serv also acknowledged in its trial brief, in its response to the half-time
motion, and in closing argument that disgorgement of profits FSS received from its
contract with Delta would normally require reducing the gross revenues by any "costs"
FSS incurred to generate those revenues. Because FSS had refused to provide any
cost information in interrogatory answers or document production and refused to
arrange for a speaking agent able to address that topic, the court entered an order
compelling discovery on costs. FSS did not provide any information on costs and
instead took the position that it did not maintain cost information specific to the Seattle-
Tacoma operation. As a result, no evidence of costs was produced in discovery or
presented at trial.
The trial court entered findings and conclusions "quantifying the undisputed
services" and concluding that FSS owed Air Serv "the reduced amount of $175/flight or
$83,300 along with all associated attorney's fees and costs under both theories of
quantum meruit and unjust enrichment."13 But the trial court's findings and conclusions
are incomplete. Specifically, other than reciting that the issue was to determine the
reasonable value of services rendered by Air Serv to FSS, the court did not identify any
particular theory of damages under either unjust enrichment or quantum meruit. The
court's findings do not address whether market value was established under either an
unjust enrichment or quantum meruit theory, or whether no market exists for the
services Air Serv provided.
Nor are the court's findings sufficient to support a disgorgement of profit theory of
unjust enrichment. The court made findings that FSS received "direct revenue" per
13
CP at 2184.
No. 71103-2-1/8
plane paid by Delta as well as "fixed fees" paid each month by Delta. The court found
that FSS received $77,730.50 in direct revenue due to Air Serv's actions from June to
August 2011,14 and a total amount of $77,439.09 for fixed fees.15 The courtfurther
found that total revenues (domestic and international) FSS received from Delta were
over $400,000. The court also made a finding that FSS intentionally failed to provide
information regarding costs.
But the court made no finding or conclusion that because FSS intentionally
withheld cost information, these revenues were the best the trial court could do to arrive
at a disgorgement figure. There was no finding that $77,730.50, the full amount of
direct revenue from international flights supervised by Air Serv from June through
August, was a reasonable figure for revenue for all flights serviced (rounding off to
exclude 15 additional flights in May and 10 additional flights in September). There was
no finding of what portion of the fixed fees was properly allocated to work supervised by
Air Serv and on what basis. There was no finding and no direct evidence that FSS was
in any real jeopardy of losing its entire contract with Delta if it was unable to clean the
international flights so that $400,000 total gross revenue paid by Delta has any
significance in a disgorgement of profits theory. Conceivably, a figure of $83,300 could
be within the range under a disgorgement theory, taking into account FSS's intentional
14 This number corresponds to invoice billings for international flights only and
does not include any direct revenue for cleaning the 15 international flights in May and
10 international flights in September that Air Serv supervised.
15 This number appears to be based on Air Serv's calculation offixed fees, which
accounts for fixed fees of $10,373.03 in May, $18,528 in June, $20,746.06 in July,
$18,528 in August, and $9,264 in September. See CP at 2428 (Air Serv's Trial Brief).
The amount calculated for September is half of the monthly fees, although Air Serv
stopped providing services on September 2. See Ex. 10.
8
No. 71103-2-1/9
withholding of cost information and the direct revenue from June to August, plus some
additional revenue for 25 additional fights in May and September. But the court did not
enter any specific findings supporting such a theory of recovery.
As previously noted, there is no finding or other determination by the trial court
that $83,300 or any other dollar amount is the reasonable value of the services received
by FSS, under any theory. Rather, at most, the findings suggest the trial court relied
upon the price proposed by Air Serv at $175 per plane. This is problematic. Under
either theory of unjust enrichment or quantum meruit, the price proposed by one party
and rejected by another does not normally establish market or reasonable value. Air
Serv provides no compelling authority that this evidence can serve as a back door
measure of the reasonable value of services. To the extent that the trial court focused
upon Air Serv's reliance upon FSS's representation that it would pay Air Serv the $175
per plane fee, that appears to be some form of estoppel or doctrine of account stated,
theories that were not before the trial court.
CR 52 requires that the court make findings of fact and conclusions of law "[i]n all
actions tried upon the facts without a jury."16 "[Fjindings must be made on all material
issues in order to inform the appellate court as to 'what questions were decided by the
trial court, and the manner in which they were decided.'"17 When the findings are
incomplete and "consideration of the legal questions involves speculation as to the legal
theories the trial court pursued," the judgment must be set aside and the case
16 CR 52(a)(1).
17 Federal Signal Corp. v. Safety Factors. Inc., 125 Wash. 2d 413, 422, 886 P.2d
172 (1994) (internal quotation marks omitted) (quoting Daughtrv v. Jet Aeration Co., 91
Wash. 2d 704, 707, 592 P.2d 631 (1979)).
No. 71103-2-1/10
remanded with instructions to the trial court to enter or clarify the findings on material
issues.18
Because the trial court did not identify a precise theory of damages or make
findings of a reasonable value of the services or how the court arrived at such a
reasonable value of the services, we remand for additional findings. We appreciate that
the parties provided the trial court with limited information regarding value and profit, but
the existing findings are inadequate. Even a general finding that the reasonable value
of the services is $200,000 would have been inadequate. The trial court must articulate
the specific measure of damages and make precise findings supporting such damages,
whether under a market value, modified disgorgement of profit, or some other "rare
circumstances" measure of the value of services appropriate based upon total
circumstances.19
Attorney Fees as Damages
The trial court awarded attorney fees alternatively under a "make whole" theory
of damages, or as part of sanctions imposed upon FSS. FSS contends that the court
had no legal basis for imposing attorney fees as damages for claims of unjust
enrichment and quantum meruit. We agree.
18 Maves v. Emery, 3 Wash. App. 315, 321-22, 475 P.2d 124 (1970).
19 See Restatement (Third) of Restitution and Unjust Enrichment § 31 cmt. e
("In the rare case where there is no evidence of market, custom, or usage to settle the
question, the reasonable value of the plaintiffs services—in a case within § 31, the
amount 'necessary to prevent unjust enrichment'—is a question for the finder of fact,
based on all the circumstances of the case.").
10
No. 71103-2-1/11
"Attorney fees will not be awarded as a part of the cost of litigation in absence of
a contract, statute, or a recognized ground in equity."20 Here, the trial court awarded
attorney fees to Air Serv "as part of the remedy to make plaintiff whole in this matter
under unjust enrichment and quantum meruit—a remedy fashioned to do substantial
justice and put an end to the litigation . . . ."21
Air Serv offers no authority supporting an award of attorney fees and costs as
"make whole" damages under unjust enrichment or quantum meruit. The award of
attorney fees can only survive under the trial court's alternative rationale that the trial
court has inherent authority to impose attorney fees as a sanction under CR 11 and
other relevant rules.
Attorney Fees and Additional $35,000 as Sanctions
The trial court recognized an alternative basis for the award of $116,700 in
attorney fees "as terms" and ordered $35,000 in additional sanctions against FSS
payable to Air Serv.22 The order awarding terms and sanctions includes several
findings in support of the award. Additionally, the trial court's findings and conclusions
include a section describing "procedural irregularities" involving the conduct of FSS
counsel during trial.23 And the April 15, 2013 order compelling discovery recites that
FSS failed to comply with the case schedule without reasonable excuse or justification
and that FSS has provided untrue statements in its discovery responses.
20 Greenbank Beach and Boat Club, Inc. v. Bunnev, 168 Wash. App. 517, 524, 280
P.3d 1133 (2012).
21 CP at 2300.
22 CP at 2300-01.
23 CP at 2181-82.
11
No. 71103-2-1/12
"[l]n imposing CR 11 sanctions, it is incumbent upon the court to specify the
sanctionable conduct in its order."24 This requires specific findings that "either the claim
is not grounded in fact or law and the attorney or party failed to make a reasonable
inquiry into the law or facts, or the paper was filed for an improper purpose."25
Otherwise, remand is necessary for the trial court to "make explicit findings as to which
filings violated CR 11, ifany, as well as how such pleadings constituted a violation."26
The trial court's findings here lack the specificity required to support the terms
and sanctions award. Specifically, Finding (a) identifies eight pleadings as not well
grounded in fact, filed without any reasonable investigation, and/or filed in bad faith and
for improper purposes. While these recitations are required for CR 11 sanctions, the
findings do not specifically identify the deficiencies in each of those documents.
Finding (b) merely refers to "numerous improper filings" without identifying whether
these are the same or in addition to those identified in Finding (a), and there is no
indication what was improper.27 Finding (c) recites that FSS failed to comply with the
April 15, 2013 order compelling discovery, but offers no details, specifics, or even
categories of failure.
Finding (d) states that FSS "intentionallyfailed to be appropriately prepared for
its CR 30(b)(6) deposition" but again, provides no details or categories of inadequate
preparation.28 Finding (e) refers to FSS and its counsel intentionally certifying
24 Biggs v. Vail, 124 Wash. 2d 193, 201, 876 P.2d 448 (1994).
25 Id,
26 Id, at 202.
27 CP at 2299.
28 CP at 2299.
12
No. 71103-2-1/13
unwarranted discovery responses but again, contains no specifics. Finding (f) refers to
declarations FSS filed in support of its summary judgment motion that were made in
bad faith, without clarifying whether this finding is limited to the declarations listed in
Finding (a) or includes other declarations. Finding (g) refers to "misrepresentations to
the Court during trial," without further details.29 Finding (h) and (i) offer no further insight
into the actions that were the basis for sanctions.30
The trial court's findings in support of the sanctions award are inadequate to
allow for meaningful review. Accordingly, we remand to allow the court to make
additional findings on the existing record to determine an appropriate award. We also
note that, in addition to findings that the hourly rates and itemized time are reasonable,
the lodestar analysis should include more details supporting any award of attorney fees
as terms.
Finally, FSS challenges the trial court's rulings limiting testimony of defense
witnesses and excluding evidence as a sanction for discovery violations. FSS contends
that the trial court erred by failing to conduct the inquiry required by Burnet v. Spokane
Ambulance before excluding evidence as a discovery sanction.31 We find no merit to
these claims.
In Burnet, the court held that before excluding a witness as a sanction for a
discovery violation, the trial court must explicitly consider whether a lesser sanction
would probably suffice, whether the violation was willful or deliberate, and whether the
29 CP at 2300.
30 See CP at 2300 (providing for alternative award of attorney fees based on
violations of court rules and finding that "[a]ll fees and expenses are reasonable and
were necessarily incurred").
31 131 Wash. 2d 484, 933 P.2d 1036 (1997).
13
No. 71103-2-1/14
violation substantially prejudiced the opponent's ability to prepare for trial.32 If the
Burnet standard applies, we may engage in harmless error analysis.33
Here, either Burnet has no application or any error was harmless. First, FSS
contends that the trial court erred by refusing to allow FSS President Robert P. Weitzel
to testify via Skype without conducting a Burnet inquiry before excluding the testimony.
We disagree.
The court did not exclude a witness as a sanction for a discovery violation,
thereby prompting a Burnet inquiry. Rather, the court was exercising its discretion to
not permit Weitzel to testify remotely. Under CR 43(a)(1), the trial court has discretion
to take testimony remotely from a witness who is not present in court. The trial court did
not allow Weitzel to testify remotely after discovering that Weitzel was present in his
office in Ohio rather than on a scheduled vacation. The court's decision that Weitzel
failed to demonstrate good cause to testify remotely and that the defense had
misrepresented to the court the reasons for his unavailability is not an exclusion of a
witness for a discovery violation. Burnet has no application to this ruling.
Second, FSS contends that the trial court erred by not allowing Thomas Priola to
testify as FSS's speaking agent (CR 30(b)(6) witness) because the court failed to
conduct a Burnet inquiry before excluding the testimony. We disagree.
After the court ruled that Weitzel was unable to testify by Skype as FSS's
CR 30(b)(6) witness, Air Serv moved in limine to limit defense witness Priola from
testifying as the speaking agent for FSS because he was not designated as a
32 id, at 494; Jones v. City of Seattle. 179 Wash. 2d 322, 338, 314 P.3d 380 (2014).
33 Jones, 179Wn.2dat343.
14
No. 71103-2-1/15
CR 30(b)(6) witness. The trial court agreed, ruling that his testimony would be limited
and denying FSS's request to call Priola. As the court explained:
It's been denied because you failed to comply with the discovery
rules, which requires that you as an attorney of record shall designate him
accordingly, not when one witness is inconvenienced so then you just
morph another witness into the 30(b)(6) at your convenience. We have
rules for a reason and they need to be complied with, and they haven't
been done so here.[34]
The record is clear that FSS did not designate Priola as FSS's 30(b)(6) witness.
Air Serv had disclosed Priola as a witness to testify only about communications directly
between FSS and Air Serv. FSS did not specifically disclose him as a witness but
simply included on its primary witness list anyone included on Air Serv's list. While that
would include Priola, it would only be to the extent he was called by Air Serv, i.e., to
testify only about communications between FSS and Air Serv. "While a 'reservation of
rights' is sufficient to disclose witness names, it is insufficient to disclose the substance
of a proposed witness's testimony."35 As in Jones, simply reserving the right to call any
witnesses appearing on the other party's list of potential witnesses does not satisfy the
requirements of the local rules for witness disclosure.36
The court's lack of a Burnet inquiry was at most harmless error. FSS did not
make an offer of proof and identify the specific testimony it sought to provide through
Priola; FSS simply requested to designate him as its speaking agent.37 Thus, FSS is
34 Report of Proceedings (RP) (June 25, 2013) at 370.
35 Jones, 179Wn.2dat342.
36 Id, at 343. The local rules require parties to provide a list disclosing primary
and additional witnesses according to trial schedule deadlines and to include a brief
description of the witness's relevant knowledge, jd, at 341; see KCLR 26(k).
37 FSS simply cites to objections to questions that were sustained. See RP (June
25, 2013) at 345, 346, 350, 355-56, 357.
15
No. 71103-2-1/16
unable to demonstrate whether Priola had any relevant testimony to offer as a speaking
agent for FSS and what effect, ifany, preventing Priola from testifying as FFS's
speaking agent had on the outcome of the case.
Finally, FSS contends that the trial court erred by failing to conduct a Burnet
inquiry before preventing FSS from presenting evidence of industry standards or market
rates as a sanction for failing to provide this in discovery. We disagree.
On the second day of trial, Air Serv filed a motion in limine to exclude evidence
relating to costs incurred by FSS, revenues received by FSS other than the invoices
provided, and any industry standard or market rate of the value of the services at issue.
The basis for requesting the exclusion was FSS's failure to provide such information in
response to repeated discovery requests and court orders compelling discovery. The
trial court granted the motion on evidence of industry standard and market value, but
reserved ruling on evidence of costs.38
Again, any error in failing to conduct a Burnet inquiry before granting the motion
in limine was harmless. FSS did not make an offer of proof of evidence relating to
industry standard or a market rate.39 Indeed, the record reveals that the claimed
"industry standard" was based on statements in declarations submitted by FSS that
38 See RP (June 25, 2013) at 268, 270. FSS challenges only the exclusion of
evidence of industry standard and market rate.
39 During argument on the motion in limine, the court asked counsel for FSS if
there was going to be testimony on this issue, to which counsel responded, "I don't
recall any testimony on market rate." RP (June 25, 2013) at 267. The court again
asked what evidence FSS had relating to industry standards or market rate, and
counsel responded, "I don't think anybody has testified to industry standards or market
rate," at which point the court noted, "Then you're . .. conceding." RP (June 25, 2013)
at 269.
16
No. 71103-2-1/17
FSS was later unable to verify.40 Thus, FSS fails to show that a ruling excluding such
evidence had any effect on the outcome of the trial.
Bias
FSS argues that trial judge exhibited bias and this matter should not be
remanded to the same judge. "Litigants 'must submit proof of actual or perceived bias
to support an appearance of impartiality claim.'"41 While FSS recites several instances
of adverse rulings and accuses the trial judge of being "caustic" and "hostile," those
rulings and comments were based upon the conduct of FSS and its attorneys. FSS fails
to establish bias. Remand to the same trial judge for additional findings is appropriate.
We remand for further findings consistent with this opinion.
WE CONCUR:
(rt^ut^K
40 See CP at 306-07, 1462.
41 GMAC v. Everett Chevrolet, Inc., 179 Wash. App. 126, 154, 317 P.3d 1074
(2014) (quoting Magana v. Hyundai Motor Am., 141 Wash. App. 495, 523, 170 P.3d 1165
(2007), rev'd on other grounds, 167 Wash. 2d 570, 222 P.3d 191 (2009)).
17