F' t E D
OF A, PPEALS
C', VS, 0if`f lY
; r a
2 3'1iR1 ffi¢ 2J AP,
IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION II
GEORGE WOODS, No. 438:
Respondent,
N.
JOHNNY HILL and MELINDA HILL,
husband and wife, UNPUBLISHED OPINION
ts.
WORSWICK, C. J. — Johnny Hill and Malinda Hill appeal the trial court' s judgment
ordering the Hills to pay George Woods damages, after Woods sued the Hills for breach of a
contract for the purchase and sale of a FedEx van and FedEx delivery route. The Hills raised the
affirmative defenses of impossibility, interference with performance, fraud, unclean hands, and
failure to mitigate damages. The Hills also alleged counterclaims of negligent misrepresentation,
intentional misrepresentation, and fraudulent inducement. The Hills now argue that the trial
court erred in ( 1) refusing to exclude Woods' s witnesses and exhibits, ( 2) insufficiently
addressing the Hills' affirmative defenses and counterclaims in its findings of fact and
conclusions of law, (3) ruling the contract completely integrated, ( 4) ruling that Woods' s failure
to provide the Hills with legal title to the van constituted neither an interference with the Hills'
performance nor a failure to mitigate damages, and ( 5) ruling that the Hills failed to prove with
clear and convincing evidence that Woods committed fraud. We find no error and affirm.
No. 43 824 -1 - II
FACTS
George Woods owned both a 1998 model FedEx van and the rights to deliver packages
along a Bainbridge Island FedEx route as an independent contractor. On July 1, 2006, Woods
1
contracted to sell both his van and his FedEx route to Johnny Hill and Malinda Hill for $85, 000.
The van' s odometer reading was 470, 192 miles at the time of the sale in 2006. From
2003 until 2006, Woods used the van to deliver packages to his route on Bainbridge Island.
Prior to the sale, Woods had spent thousands of dollars repairing the van. The van had suffered
an accident in 2004, which caused a dent on the bumper. One of the van' s mechanics provided
Woods with an invoice that stated, "[ The van] has reached or exceeded design intent." Ex. 20 at
Q
Johnny2
Prior to the July 1, 2006 sale, Woods told that the van was in " good" condition.
Woods based this statement entirely upon the fact that FedEx had conducted its annual
inspection of the van the month before, June 2006, and cleared it for sale.3 Woods did not
inform Johnny that Woods had conducted thousands of dollars in repairs, that the van had
suffered an accident in 2004, or that a mechanic had informed him that the van had " reached or
exceeded design intent." Verbatim Report of Proceedings ( VRP) at 145 -47. However, Woods
had told Johnny that the van was 8 years old, with 470, 192 miles on it.
1
The Hills worked for years at FedEx as package handlers, but their pre- contract employment
did not include driving vans to deliver packages.
2 Because Johnny and Malinda Hill share the same last name, we refer to them where necessary
by their first names, intending no disrespect.
3 The FedEx inspections covered visual inspections and a Department of Transportation
inspection —which included an inspection of the tires, emergency brake, horn, service lights, and
lights —but did not involve inspecting the engine or undercarriage.
No. 43824 -1 - II
Johnny wanted to look at the van' s maintenance records prior to the sale. Woods told
Johnny that FedEx had a copy of every maintenance record regarding the van, and that Johnny
should get the records from FedEx. Johnny tried but failed to acquire the records from FedEx,
because FedEx refused to give records to non -owners. Woods testified that he would have
accompanied the Hills to FedEx to view the records. The Hills signed the contract without
gaining access to these records, without conducting their own inspection, without asking Woods
if they could do an inspection, and without conducting any independent investigation.
The Hills engaged in " ride -
alongs" with Woods, while Woods delivered packages along
the route. The Hills testified that during the ride -alongs with Woods, Woods made the route look
simple to drive, took Johnny only on Bainbridge Island' s primary roads, made it look like the
route was mostly business addresses, intentionally avoided going to all the delivery areas on the
island, and left behind packages at the FedEx terminal to make his route faster. Johnny testified
that Woods made him think that the Bainbridge Island route was small and easy to drive.
Contrarily, Woods testified that he never left behind packages unless his managers instructed
him to do so, and that the route' s delivery addresses changed naturally over the seasons.
A. The Contract
The contract stated that the Hills took the van " as is." The contract further stated that
Woods] further believes [ the van] is in good condition and [ the van] has had a [ Department of
Transportation] inspection within the last 30 days and [ the Hills have] been provided with a copy
of said inspection." Ex. 12 at 3. The contract explicitly waived Woods' s liability for any claims
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No. 43824 -1 - II
arising out of the ride -alongs the parties did together. The contract contained a boilerplate
integration clause.¢
The contract provided that the Hills would pay $ 85, 000 for the van and route. The
contract required the Hills to pay principal and interest over five years; payment terms were to be
more specifically described " in a Promissory Note to be executed by [ the Hills]." 5 Ex. 12 at 2 -3.
Woods testified that the contract did not contain certain payment details that they had discussed
regarding the possibility of the Hills paying the contract price through a military allotment.
The contract contained a series of missing text between pages. Woods testified that he
had no knowledge of the contract' s missing text prior to trial, and that the text was missing in the
6
final contract. No evidence in the record contradicts this testimony.
Woods never transferred the van' s legal title to the Hills. Woods testified that he and the
Hills had agreed that Woods would keep the van' s title. Johnny testified that Woods promised
prior to the sale that he would give Johnny title, but later told Johnny that he wanted to keep the
title. Johnny testified that he " didn' t quite understand [ the refusal to give legal title] but that was
the agreement - that' s what [ Woods] had come to as his agreement for the route." VRP at 108.
The Hills asked Woods for the title multiple times after the sale, because they wanted to
sell the van. Woods refused to relinquish the title until the contract was paid in full.
4 The contract' s boilerplate integration clause, Ex. 12 at 6, states as follows:
13. Entire Agreement. This instrument embodies the entire agreement between
the parties hereto with respect to the transactions contemplated herein and there
have been and are no agreements, representations or warranties between the
parties other than those set forth or provided for herein.
5 No subsequent promissory note by the Hills is in the record.
6 The record does not contain the substance of the missing text.
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No. 43824- 1- 11
B. The Hills' Problems with the Van and Route
The Hills had many mechanical problems with the van. The Hills testified that they had
to spend over $80, 000 in various expenses including towing, renting replacement vans, and
eventually purchasing a replacement van.
The Hills also had problems with the route, including having to service residential
addresses and drive unpaved roads and hills. It took Malinda 12 hours per day to deliver all of
the packages, which was much longer than the 8 hours she experienced when she rode along
with Woods.
In July of 2010 — after Woods' s last refusal to provide title to the van —the Hills stopped
making payments on the contract. Woods sued the Hills for breach of contract in May of 2011,
on grounds that the Hills refused to make their last twelve payments. The Hills responded with
affirmative defenses of (1) impossibility, (2) interference with performance, ( 3) fraud, ( 4)
unclean hands, and ( 5) failure to mitigate damages. The Hills also alleged counterclaims of (1)
negligent misrepresentation, ( 2) intentional misrepresentation, and ( 3) fraudulent inducement.
C. Discovery Dispute
Woods did not provide the Hills with a list of his witnesses and exhibits until 10 days
before trial, in violation of the case schedule. The Hills moved the trial court to exclude all of
Woods' s witnesses and exhibits under Pierce County Local Rule (PCLR) 16( b).'
7 PCLR 16( b)( 2) requires each party to timely provide a list of witnesses and exhibits for use at
trial, pursuant to the deadline that the trial court establishes in the Any witness
case schedule. "
or exhibit not listed shall not be used at trial, unless the court orders otherwise for good cause
and subject to such conditions as justice requires."
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No. 43824- 1- 11
At a pretrial hearing, the Hills argued for exclusion of Woods' s witnesses and exhibits,
claiming that Woods' s willful violation of PCLR 16( b) prejudiced them. However, the Hills
admitted that they had no need to depose any of the late -disclosed witnesses.
Woods argued that he was preoccupied by other financial concerns, including the loss of
his home, and that because he had moved to Michigan, he struggled to communicate with his
attorney. Woods also argued that all of the witnesses and exhibits that Woods listed in his
untimely official list were also listed in his responses to the Hills' request for discovery.
After considering both parties' arguments, the trial court ruled that Woods' s violation of
PCLR 16( b) " borderline[ d] on willful." VRP ( May 25, 2012) at 19 -20. However, the trial court
imposed a lesser sanction of $1, 000 rather than excluding Woods' s witnesses and exhibits.
D. Trial Court' s Ruling
After a bench trial, the trial court ruled in favor of Woods on all claims. The Hills asked
the trial court to include findings and conclusions in its order that addressed their affirmative
defenses and counterclaims. The trial court refused, ruling that it had no obligation to go beyond
what was necessary to support the trial court' s judgment, and that the transcript could explain the
findings and conclusions if necessary.
The trial court made findings of fact, including:
c) The [ Hills] did breach the contract by not paying the last twelve ( 12) payments and
8
still [ have] a duty to do so.
g) The [ Hills] made all their payments but twelve ( 12) payments. They owe a total of
nineteen thousand two hundred and forty -
eight dollars and no /100 ($ 19, 248. 00) in
back payments.
8
The trial court listed this finding in its conclusions of law, rather than its findings of fact.
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No. 43824 -1 - II
i) [ Woods] advised the [ Hills] that [ the van] was in good condition at the time of
transfer. [ Woods] is not a mechanic, and that was good condition based on the age
and amount of usage.
j) [ Woods] represented that there had been an inspection done by the FedEx company
which did take place.
Clerk' s Papers ( CP) at 271 -72. Based upon these findings, the trial court concluded that:
b) An enforceable contract was entered into and no fraud or breach of that contract took
place on the part of [Woods].
d) The contract is clear in that the asset was purchased as is on the date of transfer with
no warranties.
f) It is the parties' intent, from the contract language, that [ parol] evidence is outside of
the contract as paragraph 13 makes said contract an integrated agreement.
g) The [ parol] evidence. rule requires us to not use[] extrinsic evidence to modify an
integrated contract.
h The Court finds that not all nine ( 9) elements of fraud exist at a level of clear,
cogent], and convincing [ evidence] with regards to [ Woods' s] misrepresentations as
there is no finding offalse representations and no justifiable reliance in this matter.
i) The [ Hills] had the duty to investigate and not sign a contract on blind faith.
Therefore, there is no fraud.
1) There was no duty on the part of [Woods] to accept the offer to release the security
interest in the vehicle and no basis to modify the contract, until the contract was paid
in full.
m) The Court cannot order [ Woods] to take back the [ van] or to sign over the title.
CP at 272 -73 ( emphasis added). The trial court elaborated on these sparse findings and
conclusions in an oral ruling.
Finally, the trial court also awarded Woods $ 4, 000 in reasonable attorney fees based on a
contract provision. The Hills appeal, seeking reversal of the judgment as well as remand for
more complete findings and conclusions.
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No. 43824 -1 - II
ANALYSIS
I. THE HILLS' MOTION TO EXCLUDE WOODS' S WITNESSES AND EXHIBITS
The Hills argue that the trial court erred in denying their motion to exclude Woods' s
witnesses and exhibits. We disagree.
The trial court has broad discretion when deciding what sanctions to place upon the
violation of a local rule governing case scheduling. Allied Fin. Servs., Inc. v. Mangum, 72 Wn.
App. 164, 168 -69 n. 4, 864 P. 2d 1, 871 P. 2d 1075 ( 1993). We will not overturn a trial court' s
decision to sanction a party for violating a local case scheduling rule absent an abuse of
discretion. Allied, 72 Wn. App. at 168 -69. A trial court abuses its discretion when its decision is
unreasonable, or exercised on untenable grounds, or for untenable reasons." Burnet
manifestly
v. Spokane Ambulance, 131 Wn.2d 484, 494 -95, 933 P. 2d 1036 ( 1997) ( quoting Associated
Mortgage Investors v. G. P. Kent Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558 ( 1976)).
However, the trial court may impose only the least severe sanction adequate to serve its purpose.
Teter v. Deck, 174 Wn.2d 207, 216, 274 P. 3d 336 ( 2012).
PCLR 16( b)( 2) gives the trial court discretion in fashioning a sanction other than
exclusion of witnesses and exhibits " for good cause and subject to such conditions as justice
requires." In this case, Woods made a showing of good cause, and the Hills admitted that only
a slight difference" existed between the witnesses and exhibits listed in Woods' s untimely lists
and the witnesses and exhibits listed in Woods' s discovery responses. Thus, we hold that the
trial court did not abuse its discretion when it denied the Hills' motion to exclude Wood' s
witnesses and exhibits.
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No. 43824- 1- 11
II. SUFFICIENCY OF THE TRIAL COURT' S FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Hills urge us to remand this case to the trial court for additional findings and
conclusions, arguing that the trial court failed to provide sufficient findings and conclusions
when it refused the Hills' request to more completely address the Hills' affirmative defenses and
9
counterclaims. We disagree.
CR 52 requires the trial court in a bench trial to " find the facts specially and state
separately its conclusions of law." A trial court' s findings must be sufficiently specific to allow
us to engage in meaningful review. Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303,
314, 291 P. 3d 886 ( 2013). To be sufficient, the findings and conclusions should allow us to
determine what material issues the trial court decided, and its decision -
making process. City of
Tacoma v. Fiberchem, Inc., 44 Wn. App. 538, 541, 722 P. 2d 1357 ( 1986) ( citing Daughtry v. Jet
Aeration Co., 91 Wn.2d 704, 707, 592 P. 2d 631 ( 1979)). However, the trial court need not make
negative, alternative, or cumulative findings. Daughtry, 91 Wn.2d at 707; Lian v. Stalick, 106
Wn. App. 811, 821, 25 P33d 467 ( 2001).
A. Affirmative Defenses
The Hills argue that the trial court erred by failing to resolve the Hills' affirmative
defenses of impossibility, interference with performance, fraud, unclean hands, and failure to
mitigate damages. We disagree.
We interpret a trial court' s failure to make a finding of fact regarding an affirmative
defense to mean that the trial court decided against that affirmative defense. Jacobson v.
9 The Hills ask that this court remand only if the findings prevent us from fully addressing their
claims on appeal.
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No. 43824- 1- 11
Lawrence, 9 Wn. App. 786, 788, 514 P. 2d 1396 ( 1973). Here, the trial court failed to make any
factual findings regarding the Hills' affirmative defenses — such as interference with performance
and mitigation of damages. We hold that the lack of factual findings constitutes the trial court' s
decision against the Hills' affirmative defenses. Jacobson, 9 Wn. App. at 788.
B. The Hills' Counterclaims
The Hills argue that the trial court erred in failing to address their counterclaims for
fraudulent inducement, negligent misrepresentation, and intentional misrepresentation. We
disagree.
False representation and justifiable reliance are required elements of all three claims. W.
Coast, Inc. v. Snohomish County, 112 Wn. App. 200, 206, 209 -10, 48 P. 3d 997 ( 2002). Here,
the trial court concluded that
not all nine ( 9) elements of fraud exist at a level of clear, [ cogent], and convincing
evidence] with regards to [ Woods' s] misrepresentations as there is no finding offalse
representations and no justifiable reliance in this matter."
CP at 273 ( emphasis added).
This conclusion addresses all three of the Hills.' counterclaims by addressing false
representation and justifiable reliance, which are required elements of all three claims. See West
Coast, Inc., 112 Wn. App. at 206, 209 -10. Thus we hold that the trial court' s findings and
conclusions are sufficient for us to review the Hills' claims.
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No. 43.824 -14I
III. CONTRACT CLAIMS
The Hills argue that the trial court erred in ruling in favor of Woods on their contract
claims. We disagree.
In reviewing a trial court' s decision after a bench trial, we determine whether substantial
evidence supports the findings of fact and, if so, whether the findings support the conclusions of
law and the judgment. SAC Downtown Ltd. P' ship v. Kahn, 123 Wn.2d 197, 202, 867 P. 2d 605
1994). The party claiming error has the burden of showing that a finding of fact is not
supported by substantial evidence. Fisher Props. Inc. v. Mayfair Inc., 115 Wn.2d 364,
Arden -
369, 798 P. 2d 799 ( 1990). Substantial evidence is a " quantum of evidence sufficient to
persuade a rational fair -
minded person that the premise is true." Sunnyside Valley Irrigation
Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P. 3d 369 ( 2003).
Where the trial court erroneously labels a finding of fact as a conclusion of law, we
review it as a finding of fact. Scott's Excavating Vancouver, LLC v. Winlock Props., LLC, 176
Wn. App. 335, 342, 308 P. 3d 791 ( 2013), review denied, 179 Wn.2d 1011 ( 2014). Where the
trial court erroneously labels a conclusion of law as a finding of fact, we review it as a
conclusion of law. Scott's Excavating Vancouver, LLC, 176 Wn. App. at 342.
We view all evidence and inferences in the light most favorable to the prevailing party.
Lewis v. Dept of Licensing, 157 Wn. 2d 446, 468, 139 P. 3d 1078 ( 2006). We defer to the trial
court' s determinations on issues of conflicting evidence, witness credibility, and persuasiveness
of the evidence. Scott's Excavating Vancouver, LLC, 176 Wn. App. at 342 ( citing City of Univ.
Place v. McGuire, 144 Wn.2d 640, 652, 30 P. 3d 453 ( 2001)). When the trial court' s findings are
susceptible of two constructions, one that supports the conclusions of law and one that does not,
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No. 43824 -1 - II
we construe the findings in the manner that supports the trial court' s conclusions of law. Lincoln
Shiloh Assoc., Ltd. v. Mukilteo Water Dist., 45 Wn. App. 123, 131, 724 P. 2d 1083 ( 1986).
A. Contract Integration
The Hills argue that the trial court erred in finding that the contract with Woods was a
complete integration of the parties' agreement. We disagree.
The trial court' s conclusion of law " f,"that the contract was integrated, is actually a
finding of fact subject to substantial evidence review. Emrich v. Connell, 105 Wn.2d 551, 556-
57, 716 P. 2d 863 ( 1986); see also S. Kitsap Family Worship Ctr. v. Weir, 135 Wn. App. 900,
907, 910, 146 P. 3d 935 ( 2006). Thus, we review the contract' s integration for substantial
evidence as a finding of fact. Scott's Excavating Vancouver, LLC, 176 Wn. App. at 341 -42.
A written contract is completely integrated if the parties intended it to constitute a final
expression of their agreement' s terms. Berg v. Hudesman, 115 Wn.2d 657, 670, 801 P. 2d 222
1990). " The parol evidence rule precludes the use of extrinsic evidence to add to, subtract from,
or contradict the terms of a fully integrated written contract." Brogan & Anensen LLC v.
modify,
Lamphiear, 165 Wn.2d 773, 775, 202 P. 3d 960 ( 2009). We must consider all relevant oral and
written extrinsic evidence, and determine whether the writing has incorporated the entire
agreement. Lopez v. Reynoso, 129 Wn. App. 165, 171, 118 P. 3d 398 ( 2005). However, mistakes
in grammar, spelling, or punctuation do not change our interpretation of the parties' intent.
Sackman Orchards v. Mountain View Orchards, 56 Wn. App. 705, 707, 784 P. 2d 1308 ( 1990)
citing Schauerman v. Haag, 68 Wn.2d 868, 873, 416 P. 2d 88 ( 1966)).
Boilerplate integration clauses provide strong evidence of integration. King v. Rice, 146
Wn. App. 662, 670 n. 17, 191 P. 3d 946 ( 2008); See also S.D. Deacon Corp. of Washington v.
12
No. 43824 -1 - II
Gaston Bros. Excavating, Inc., 150 Wn. App. 87, 94, 206 P. 3d 689 ( 2009). But an agreement
integration clause —if the clause is false
may be only partially integrated —notwithstanding an
boilerplate, such that enforcement would amount to an endorsement of fraud. Denny's Rests.,
Inc. v. Sec. Union Title Ins. Co., 71 Wn. App. 194, 203, 859 P. 2d 619 ( 1993); S. Kitsap Family
Worship Or., 135 Wn. App. at 907. To determine whether a contract is false boilerplate, we
consider " whether [ a] prior agreement was the inducing and moving cause of the final contract,
whether a prior agreement formed part of the consideration for the final contract, and whether the
final contract was executed on the faith of [a] prior agreement." S. Kitsap Family Worship Ctr.,
135 Wn. App. at 907.
In this case, the trial court based its finding of fact that the contract was integrated on the
contract' s integration clause. Integration clauses provide strong evidence of integration. King,
146 Wn. App. at 670 n. 17; see also S.D. Deacon Corp. of Wash., 150 Wn. App. at 94. To the
extent that any other evidence conflicts with this strong evidence, we defer to the trial court' s
determination that the integration clause was more persuasive. Scott's Excavating Vancouver,
LLC, 176 Wn. App. at 341 -42.
Woods testified that the contract did not contain certain payment details that they had
discussed —regarding the possibility of the Hills paying the contract price by Johnny setting up a
military allotment. But this demonstrates only that the parties were discussing the possibility of
a future agreement adding to the written contract, not that they had made a prior agreement
affecting the written contract. These possible future agreements do not affect the contract' s
integration as a prior agreement would. See S. Kitsap Family Worship Ctr., 135 Wn. App. at
907. Thus substantial evidence supports that the contract was a complete integration, with an
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No. 43 824 -1 - II
agreement to agree later as to the payment details, rather than a prior agreement that was critical
to the formation of the final contract.
The contract had numerous typographical errors, including missing text between pages.
However, Woods testified that the contract' s missing text was missing in the contract that the
parties signed, and no evidence contradicted that testimony. This provides substantial evidence
that the missing pieces of the contract were not part of the parties' actual agreement. We hold
that substantial evidence supports the trial court' s finding that the contract was a complete
integration.
B. Interference with Performance and Mitigation ofDamages
The Hills next argue that the trial court erred in. concluding that Woods had no duty to
deliver the van' s legal title to the Hills. The Hills argue that Woods' s failure to provide legal
title constituted an interference with the Hills' performance ( of paying the contract price). The
Hills also argue that Woods' s failure to provide legal title constituted a failure to mitigate
damages, because the Hills could have continued paying the contract price if Woods had
provided the Hills with legal title. We disagree.
Every contract contains an implied covenant of good faith and fair dealing, including a
duty to not interfere with the other party' s performance. State v. Trask, 91 Wn. App. 253, 272-
73, 957 P. 2d 781 ( 1998). A contract party' s interference with the other party' s performance
discharges the other party' s duty. Jones Assocs., Inc. v. Eastside Props., Inc., 41 Wn. App. 462,
471, 704 P. 2d 681 ( 1985).
However, the implied duty to not interfere with performance does not impose a " duty to
affirmatively assist in the other party' s performance." Trask, 91 Wn. App. at 272 -73
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No. 43824 -1 - II
Furthermore, the duty does not require the party to materially alter their agreement' s terms or to
add additional terms to the agreement. Badgett v. Sec. State Bank, 116 Wn.2d 563, 569, 807
P. 2d 356 ( 1991). Rather, the duty to not interfere with performance arises only in connection
with obligations imposed by the parties' contract. Badgett, 116 Wn.2d at 569.
Additionally, a party injured by another party' s breach of contract has a duty to prevent
future harm by mitigating damages. Smith v. King, 106 Wn.2d 443, 450 -51, 722 P. 2d 796
1986). The duty to mitigate " prevents recovery for those damages the injured party could have
avoided by reasonable efforts taken after the wrong was committed." Bernsen v. Big Bend Elec.
Coop., Inc., 68 Wn. App. 427, 433, 842 P. 2d 1047 ( 1993). However, a duty to mitigate damages
does not require a party to modify the contract. See Waldrip v. Hill, 70 Wash. 187, 190 -91, 126
P. 409 ( 1912).
Mitigation of damages and interference with performance are affirmative defenses, and
thus the party raising that defense has the burden of proof. Fed. Signal Corp. v. Safety Factors,
Inc., 125 Wn.2d 413, 416, 433 -34, 48, 886 P. 2d 172 ( 1994); see Jones Assocs., Inc., 41 Wn.
App. at 471 -72. The trial court in this case failed to make a finding regarding these affirmative
defenses, and we consider this omission as a decision against those defenses. Jacobson, 9 Wn.
App. at 788.
Here, Woods testified that he and the Hills agreed, prior to signing the contract, that
Woods would not give the Hills legal title. The Hills do not contradict this testimony; Johnny
admitted that Woods told him that Woods wanted to keep the title to the van prior to the date the
parties signed the contract.
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No. 43824 -1 - II
We hold that the trial court correctly concluded that delivery of legal title was not part of
the parties' agreement, and that thus Woods had no duty to provide legal title. These conclusions
preclude the Hills' affirmative defenses of interference with performance and mitigation of
damages as a matter of law, because both doctrines' duties are limited to the contract' s
requirements. Thus, Woods did not interfere with the Hills' performance or fail to mitigate his
damages by not providing the Hills with the van' s legal title. See Badgett, 116 Wn.2d at 569;
Waldrip, 70 Wash. at 190 -91.
C. Fraud
The Hills argue that the trial court erred when it concluded that the Hills failed to prove
with clear and convincing evidence that Woods had committed fraud. We disagree.
A party claiming fraud must prove nine elements with clear and convincing evidence,
which is the equivalent of saying that the ultimate fact in issue must be shown to be " highly
probable." Douglas Nw. Inc. v. Bill O' Brien & Sons Constr. Inc., 64 Wn. App. 661, 678, 828
P. 2d 565 ( 1992). We review the trial court' s findings of fact on the elements of fraud for
substantial evidence in light of this " highly probable" test. Douglas Nw. Inc., 64 Wn. App. at
Fraud' s nine elements are: ( 1) representation of an existing fact, ( 2) materiality, ( 3)
falsity, (4) speaker' s knowledge of its falsity, ( 5) speaker' s intention that it shall be acted upon
ignorance falsity, ( 7) the s reliance, ( 8) the
by the other party, ( 6) the other party' s of other party'
other party' s right to rely, and ( 9) the other party' s damages. Hoffer v. State, 110 Wn.2d 415,
425, 755 P. 2d 781 ( 1988); Douglas Nw., 64 Wn. App. at 678. We hold that the conclusion of
law that the Hills failed to prove fraud with clear and convincing evidence was supported by the
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No. 43824 -1 - II
fact that there finding false in this matter," and that
finding of was " no of representations ...
sufficient evidence supported that finding. CP at 273.
1. Conclusion ofLaw: The Hills Failed To Establish Fraud
The trial court' s conclusion of law that the Hills could not establish fraud' s nine elements
with clear and convincing evidence is supported by its finding of fact that there was " no finding
offalse representations ... in this matter." We interpret this finding of fact to constitute a
finding of fact that Woods did not make false representations with regard to the contract. See
Lincoln Shiloh Assocs., Ltd., 45 Wn. App. at 131.
2. Finding ofFact: Woods Made No False Representations with Regard to the Contract
The trial court' s finding of fact that Woods did not make false representations with regard
to the contract is supported by substantial evidence. ' This is true regarding both the van and the
route.
Regarding the van, the only statement that the Hills allege Woods made was that the van
was in " good" condition. Substantial evidence supports that this statement was true for three
reasons.
First, the van' s disclosed mileage of 470, 192 supported the truth of Woods' s statement.
This is because " good" is a relative term, and for a van of 470, 192 miles, the fact that it operated
at all could be construed as " good" condition. Second, the trial court found that FedEx had
inspected the van prior to Woods selling it to the Hills. 10 Third, Woods testified at trial that he
did not make any false statement in forming the contract to sell the van. This is substantial
10 The testimony conflicted on whether the FedEx inspection had occurred. The trial court found
that it did occur, resolving this conflict in favor of Woods.
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No. 43824- 1- 11
evidence that Woods' s statement that the van was in " good" condition was true, given the clear
and convincing evidence standard against the Hills. See Douglas Nw., 64 Wn. App. at 678.
Substantial evidence also supports that Woods did not make false statements regarding
the route. Woods testified that he did not leave packages behind on his ride -
alongs unless his
managers instructed him to do so, that the route' s delivery addresses changed naturally over the
seasons, and that he never made false statements to the Hills. The Hills dispute this testimony,
but the trial court resolved this dispute in favor of Woods, and we defer to the trial court' s
credibility determination. Scott's Excavating Vancouver, LLC, 176 Wn. App. at 342. The trial
court' s conclusion of law that the Hills failed to prove fraud with clear and convincing evidence
is supported by the finding of fact that Woods made no false statements in regard to the contract,
and that finding of fact is in turn supported by substantial evidence. Thus, we hold that the trial
court did not err in dismissing their counterclaim.
In summary, we hold that the trial court did not abuse its discretion in refusing to exclude
Woods' s witnesses and exhibits, and provided sufficient findings and conclusions for this court
to engage in meaningful review. We hold that the parties' contract was a complete integration,
Woods did not interfere with the Hills' performance, and Woods had no duty to mitigate the
Hills' damages. Finally, we hold that the Hills failed to prove fraud with clear and convincing
evidence. We affirm.
ATTORNEY FEES
Both the Hills and Woods request attorney fees on appeal. A contract, statute, or
equitable grounds must authorize an attorney fee award. City ofSequim v. Malkasian, 157
Wn.2d 251, 271, 138 P. 3d 943 ( 2006). When a contract provides that attorney fees and costs
18
No. 43824 -1 - II
shall be awarded to one of the parties, former RCW 4. 84. 330 ( 1977) states that " the prevailing
party ... shall be entitled to reasonable [ attorney] fees in addition to costs and necessary
disbursements."
In this case, the contract states that the prevailing party " shall be entitled to its reasonable
costs, disbursements and [] attorney fees ., .. together with all expenses which it may reasonably
incur." Ex. 12 at 6. Thus we award fees and costs to the prevailing party, which in this case is
Woods.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
orswick, C. J.
We concur:
M,