Abendroth v. Benjamin Ryan Comms.

Docket Number83333-2-I
Decision Date31 January 2022
PartiesKRISTEN ABENDROTH, a Washington resident; KYLE ABENDROTH, a Washington resident; DOUGLAS BILES, a Washington resident; ALICE BILES, a Washington resident; ALEJANDRO CALDERON, a Washington resident; EYRIA EATMON, a Washington resident; DIONNE EATMON, a Washington resident; CALVIN JONES, a Washington resident; CHARLOTTE JONES, a Washington resident; DARRIN MARTIN, a Washington resident; AMBER MARTIN, a Washington resident; MATTHEW SHAFFER, a Washington resident; JONI MCKEE, a Washington resident; KRISTY COLUNGA, a Washington resident; JOHNNY WILLIAMS JR., a Washington resident, Appellants, v. BENJAMIN RYAN COMMUNITIES LLC, fka BUILDERS OF AMERICA LLC, a Washington Limited Liability Company, Respondent. BUILDERS OF AMERICA, LLC, a Washington limited liability company, Third-Party Plaintiff, v. AA SIDING LLC, a Washington limited liability company; KLIM ROOFING AND CONSTRUCTION, INC., a Washington corporation; and CUSTOM HOME SOLUTIONS LLC, a Washington limited liability company; ROBERT E. ANSON, dba ANSON MASONRY; ANGEL'S HOME CONSTRUCTION, INC., a Washington corporation; NORTHWEST CUSTOM DECKS, INC., a Washington corporation; CHARLES W. PARKER, dba PARKER & SONS; PACIFIC CHOICE CONSTRUCTION LLC, a Washington limited liability company; and RUSTY NAIL, INC., a Washington corporation, Third-Party Defendants.
CourtWashington Court of Appeals


Chun J.

Plaintiff homeowners sued Benjamin Ryan Communities LLC (BRC), f/k/a Builders of America LLC, over alleged defects in their houses. BRC moved for summary judgment. Plaintiffs did not file briefing or evidence opposing the motion and did not appear at the summary judgment hearing. The court granted summary judgment dismissing plaintiffs' claims. Plaintiffs moved for vacation of the order under CR 60(b) arguing excusable neglect. The court vacated its summary judgment order to allow plaintiffs to appear for a summary judgment hearing but prohibited further briefing. Following a second summary judgment hearing, the court again granted summary judgment, dismissing all of plaintiffs' claims. BRC requested attorney fees and costs, which the court awarded.

Plaintiffs appeal, contending: (1) the trial court erred by prohibiting further briefing and submission of evidence, (2) the court erred by not considering their declarations, (3) the court erred by granting summary judgment on the breach of contract claims, (4) the court erred by dismissing some claims with prejudice because BRC failed to so request, (5) RCW 64.50.020 prohibits the court from dismissing its claims with prejudice, (6) the court erred by not applying a setoff to the award of attorney fees and costs, (7) the court erred by not applying the doctrine of unjust enrichment to the award, (8) the contract provision providing for attorney fees and costs was ambiguous, (9) BRC failed to prove damages or pecuniary loss, and (10) BRC failed to prove the reasonableness of its requested award. For the reasons below, we affirm.


Plaintiffs are homeowners of 10 houses in Tacoma. They sued BRC-the company that constructed, marketed, and sold the houses-asserting claims related to alleged defects in the houses. The claims were breach of contract, breach of warranty, violation of the Washington Consumer Protection Act (CPA), [1]negligent misrepresentation, and breach of the independent duty doctrine.

A. First Summary Judgment Hearing

BRC moved for summary judgment. Its motion did not explicitly request dismissal with prejudice, but it did request dismissal without prejudice for the breach of warranty claims. BRC made these arguments: (1) that the construction statute of repose barred all claims related to seven of the houses, (2) that Washington law did not support the breach of the independent duty doctrine claim, (3) that Washington law did not support the negligent representation claim, (4) that plaintiffs did not meet the elements of a CPA claim, (5) that plaintiffs failed to provide adequate notice for the breach of warranty claims as RCW 64.50.020 requires, (6) that one of the plaintiffs was not in privity with it, and (7) that plaintiffs failed to establish the elements of the breach of contract claim. It supported its motion with multiple declarations and exhibits.

Defense counsel originally noted the summary judgment hearing for November 1, 2019. They notified opposing counsel. Then, to comply with a case management requirement, defense counsel re-noted the hearing for August 30, 2019, and informed opposing counsel. Sarah Noble, the office manager for plaintiffs' counsel, pointed out to defense counsel that setting the hearing on August 30 would violate CR 56's requirement of 28 days' notice, and said that multiple days, including September 20, were open. Thus, defense counsel re-noted the hearing for September 20 and again notified opposing counsel.

Yet plaintiffs did not respond to the summary judgment motion; it did not submit any briefing or evidence in opposition. On September 17, three days before the hearing, Noble emailed defense counsel, asking whether there was a hearing on September 20. Defense counsel responded affirmatively the next morning.

On September 20, the trial court held the summary judgment hearing and plaintiffs' counsel did not appear. The court granted the summary judgment motion and signed BRC's proposed order. Defense counsel downloaded the executed order on October 1 and sent it to plaintiffs' counsel on October 3. By that time, the 10-day period to file a motion for reconsideration had passed.

B. CR 60(b) Motion

On October 10, plaintiffs filed a CR 60(b)[2] motion requesting that the court vacate the summary judgment order. Plaintiffs' counsel claimed that he thought the summary judgment hearing was still on November 1. He contended that defense counsel purposefully waited until 10 days had passed before sending the order to plaintiffs' counsel so that they would be unable to move for reconsideration. Plaintiffs' counsel attached declarations from attorney Todd Skoglund and expert Martin Flores. The Skoglund declaration included exhibits such as purchase and sale agreements and warranties. The expert declaration concerned Flores's inspections of the houses and discovery of defects.

BRC opposed the CR 60(b) motion, arguing that it was simply a motion for reconsideration disguised as a CR 60(b) motion. BRC contended that the evidence plaintiffs submitted was inadmissible for multiple reasons and that it was directed at opposing the summary judgment motion, not at supporting the CR 60(b) motion.

The trial court held a hearing on the CR 60(b) motion. There, Skoglund argued for the first time that he suffered from vertigo and that the condition amounted to excusable neglect under CR 60(b)(1). The court concluded that Skoglund's illness led to excusable neglect and vacated the summary judgment order. The court asked BRC to schedule another summary judgment hearing so plaintiffs could appear for oral argument. But the court noted that the summary judgment deadlines had passed and, in its order, stated that briefing on the summary judgment motion was closed.

C. Second Summary Judgment Hearing

The court held a second summary judgment hearing on November 15. Plaintiffs argued that the declarations they submitted with their CR 60(b) motion were properly before the court for its consideration of the summary judgment motion. BRC disagreed. The court did not expressly address the issue. Plaintiffs conceded that BRC should prevail on three of its arguments: the ones on the independent duty doctrine, negligent misrepresentation, and the CPA. The court accepted the concessions and, after argument, granted BRC's summary judgment motion on all the claims.

The parties then submitted competing orders, leading to another hearing on November 26. During the hearing, plaintiffs argued that all their claims should be dismissed without prejudice rather than with prejudice. The court signed BRC's proposed order. The order listed the submissions the court considered, and the list did not include the declarations plaintiffs submitted in connection with their CR 60(b) motion. The order dismissed with prejudice all claims associated with seven of the houses as barred by the statute of repose. It dismissed with prejudice the breach of contract claims for the remaining three houses. And it dismissed without prejudice the breach of warranty claims for these three houses based on plaintiffs' failure to adequately notify the defendant under RCW 64.50.020.

D. Attorney Fees and Costs

BRC then moved for $66, 410.60 in attorney fees and $64, 249.39 in costs based in part on language in the purchase and sale agreements. The language states, "[I]f Buyer or Seller institutes suit against the other concerning this Agreement the prevailing party is entitled to reasonable attorneys' fees and expenses." Plaintiffs responded that they did not have to pay BRC fees and costs because insurers had provided BRC with a defense. They also challenged the reasonableness of the fees.

The court held a hearing on January 24, 2020. It noted that no law supported a setoff of the fees based on insurers having paid for some or all of the attorney fees and that the contractual language clearly provided for fees and costs to the prevailing party. The court ruled for BRC and entered an order awarding fees and costs in the amount BRC requested.

E. Appeal

In February 2020, plaintiffs appealed the summary judgment order and the order awarding attorney fees and costs.[3]

In September, the trial court entered a judgment for fees and costs, which included findings of fact and conclusions of law. The court found the hours spent on the case and the hourly rate to be reasonable. And...

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