Russell and Diane Taylor v. Matthew S. Calene

FILED
JAN. 29,2015
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
RUSSELL AND DIANE TAYLOR, )
husband and wife, ) No. 31917-2-III
)
Appellants, )
)
v. )
) UNPUBLISHED OPINION
MATTHEW S. CALENE d/b/a American )
Sprinkler and Landscape, and OLD )
REPUBLIC INSURANCE COMPANY, )
BOND ACCOUNT NUMBER FB4371, )
)
Respondent. )
)
KORSMO, J. - After moving into a house built by Matthew Calene, Russell and
Diane Taylor contracted with Mr. Calene to landscape the yard. Being disappointed with
the work done, the Taylors unsuccessfully brought suit against Mr. Calene for breach of
contract and warranty with enhanced damages under the Consumer Protection Act.
Because the record supports the trial court's determinations, we affirm.
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FACTS
In May 20 I 0, the Taylors contracted with Mr. Calene to landscape the back and
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side yards of their newly purchased home in Clarkston at a price of$18,050. The work
included building several retaining walls, pouring concrete steps, building a vinyl fence
No. 31917-2-II1
Taylor v. Calene
around the yard with concrete curbing, installing sprinklers, building an outdoor fire place,
pouring a cement parking area, and preparing planters and garden space.
After Mr. Calene finished the job, the Taylors refused to make further payments
on the contract because they were dissatisfied due to a number of deficiencies in the
fencing and curbing, as well as a bulge in one of the retaining walls. The Taylors sued
Mr. Calene, alleging that his work violated an implied warranty to meet the standard of
practice for the trade. They sought total damages of more than $22,000 to remove and
replace the fence and retaining walls. They also claimed a per se violation of the
Consumer Protection Act (CPA), arising because Mr. Calene was not bonded at the
time he worked on their yard, in violation of the Contractor Registration Act (CRA).
Chapter 19.86 RCW; Chapter 18.27 RCW.
At trial, the Taylors presented testimony by three expert witnesses, dealing
respectively with deficiencies in the fence, the concrete curbing, and the retaining walls.
The fencing expert testified to a number of esthetic deficiencies, and stated that he could
not repair them because he would then be unable to warranty the job. The concrete
expert similarly testified to cosmetic deficiencies, stating that he could not repair the
curbing because he did not know how it had been installed. Finally the expert on
retaining walls testified that a portion of the wall was in failure and needed to be repaired,
but that the entire wall should be rebuilt to guard against future failure.
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Conversely, the defense expert testified that Mr. Calene's performance was not
deficient, but merely inferior craftsmanship. He noted that Mr. Calene charged less than
halfwhat the plaintiff's experts quoted to do the same jobs. He testified that the fence
and curbing were otherwise structurally sound. The defense conceded that incorrect
latches were used on the gate and that a portion of the retaining wall was in failure.
The trial court found that the deficiencies related to levels of craftsmanship rather
than deficient performance and found Mr. Calene liable to replace the gate latches and
repair the retaining wall. However, because the amount owed on the contract to Mr.
Calene exceeded the damages owed the Taylors, the trial court concluded that there was
no prevailing party. It also rejected the Taylors' CPA claim because there had been no
prosecution under the CRA.
The Taylors timely appealed to this court.
ANALYSIS
The Taylors present two issues, which we address in order: whether the trial court
correctly determined that there was no prevailing party and whether the trial court erred
in rejecting their claim to damages under the CPA.
No Prevailing Party
Generally, a prevailing party is one against whom no affirmative judgment is
entered. Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863,868, 505 P.2d 790 (1973).
The trial judge declined to enter a judgment for either party after finding that the cost to
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No. 31917-2-111
Taylor v. Calene
repair the defects was offset entirely by the debt remaining. Thus, the only matter at issue
here is whether those findings were supported by the evidence presented. Where the trial
court has weighed the evidence, review of factual findings is limited to determining
whether those findings are supported by substantial evidence. Holland v. Boeing Co.,
90 Wash. 2d 384, 390, 583 P.2d 621 (1978). "Substantial evidence" is that evidence which
"would persuade a fair-minded person of the truth or correctness of the matter."
Smith v. Emp't Sec. Dep't, 155 Wash. App. 24, 32-33, 226 P.3d 263 (2010).
Here, the record was replete with evidence of cosmetic flaws in the fence and
concrete curbing. However, there was consensus among the experts that the structure
was sound, as well as evidence that it was unnecessary to replace the fence and curbing.
Similarly, the record contains ample evidence that a portion of the retaining wall needed
to be repaired, but that the wall as a whole was not improperly built. Thus, substantial
evidence supports the trial court finding that the fence and retaining wall needed to be
repaired rather than replaced. The only evidence of repair costs are in the amounts of
$876 to repair the compromised portion of the retaining wall and $300 to replace the
incorrect gate latches. Thus, the finding of compensation owed to the plaintiff of $1,176
is well supported by the evidence.
Turning to the offset, it is well settled that Washington applies the ruJe in the
Restatement o/Contracts § 346 (1932) under which a party can get judgment for
compensatory damages, less the part of the contract price that has not been paid.
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Baldwin v. Alberti, 58 Wash. 2d 243, 245,362 P.2d 258 (1961). The Taylors conceded at
trial that they owed a balance of $1,183 on the contract. Compensation of $1,176 less a
balance owed of $1,183 is nothing. Accordingly, the record supports the trial court's
determination that no affirmative judgment should be entered and that there was no
prevailing party .
Consumer Protection Act
In order to prevail on a claim under the CPA, a plaintiff must prove (1) an unfair
or deceptive act or practice (2) occurring in trade or commerce (3) with a public interest
impact, and (4) an injury to the plaintiff in his or her business or property, (5) caused by
that act or practice. Klem v. Wash. Mut. Bank, 176 Wn.2d 771,782,295 P.3d 1179
(2013). The first two elements may be established by a showing that the act or practice
constitutes a per se violation of the CPA as established by statute. Hangman Ridge
Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash. 2d 778, 787-88, 719 P.2d 531
(1986). Under the CRA, "the fact that a contractor isfound to have committed a
misdemeanor or infraction under this chapter shall be deemed to affect the public interest
and shall constitute a violation of [the CPA]." RCW 18.27.350 (emphasis supplied).
Here, the Taylors claim that Mr. Calene committed a per se violation of the CPA
because he was not bonded as required by RCW 18.27.040. 1 However, unlike most per
) Mr. Calene disagreed that his bond was not in place. The trial court did not
resolve the dispute.
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se violations of the CPA, which are defined by the statute at issue, RCW 18.27.350
specifically implicates the CPA only where "a contractor is found to have committed a
misdemeanor or infraction under this chapter." See, e.g., RCW 18.28.185;
RCW 19.09.340; RCW 19.110.170; RCW 63.10.050. We conclude that this language
requires a determination in a prior criminal prosecution or infraction proceeding before it
can be asserted as a per se CPA violation. Because there is no evidence in the record of
either a misdemeanor conviction or a court finding that an infraction was committed, the
trial court properly rejected the Taylors' claim under the CPA.
The judgment is 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:
Brown,A. . .
Lawrence-Berrey, 1.
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