Plumb Serve, LLC v. Scoby
| Decision Date | 06 August 2012 |
| Docket Number | NO. 65459-4-I,65459-4-I |
| Court | Washington Court of Appeals |
| Parties | PLUMB SERVE, LLC, a Washington, limited liability company, d/b/a BENJAMIN FRANKLIN PLUMBING, Plaintiffs, v. VIOLA M. SCOBY and JOHN DOE SCOBY, wife and husband, and JOHN W. SCOBY and VIOLA M. SCOBY REVOCABLE TRUST of October 9, 1995, Respondents, v. PROFIT TWO, LLC, a Washington limited liability company, d/b/a PLUMB SERVE AND OUTTODAY SERVICE; RODNEY JESSEN, individually and as part of his marital community; and GARY JESSEN, individually and as part of his marital community, Appellants. |
UNPUBLISHED OPINION
Lau, J. — Plumbing contractors Gary and Rodney Jessen, owners and operators of Plumb Serve LLC doing business under the name Benjamin Franklin Plumbing,1 appeal a judgment after a bench trial that it violated the Consumer Protection Act (CPA), chapter 19.86 RCW. Because substantial evidence supports the trial court's findings and these findings support the conclusion that BFP violated the CPA, we affirm the trial court's attorney fees and costs award under the CPA incurred by Viola Scoby at trial.2 We also award Scoby fees and costs on appeal on the same grounds and remand for the trial court to determine the amount under RAP 18.1(i). In addition, we affirm the trial court's order imposing personal liability against Rodney and Gary Jessen and denying BFP's attorney fees request.
FACTS
BFP filed suit against 82-year-old Viola Scoby for breach of contract and to foreclose its mechanic's lien for unpaid sewer installation work. Scoby counterclaimed, alleging CPA violations. During the nearly eight-day bench trial,3 both parties presented witness testimony, exhibits, and argument.4 Evidence established thefollowing facts, which are mostly unchallenged on appeal.5
Scoby's washing machine backed up and caused a flood in her home. She looked for plumbers in the telephone book and saw the Benjamin Franklin Plumbing advertisement. She selected BFP because the advertisement showed it was a Better Business Bureau member,6 guaranteed 100 percent customer satisfaction, and it had a good name. She telephoned BFP's office, and they dispatched plumbing technician Alex Shelton to her home. Scoby signed three preprinted form contracts admitted at trial as exhibits 1 through 3.7 She signed exhibit 1 on March 25, 2008, exhibit 2 on March 26, 2008, and exhibit 3 on March 27, 2008. Shelton also signed each of these agreements as BFP's representative.8
Exhibit 1, entitled "invoice," lists charges to "clear mainline" at $499, "deep repair over 4 ft. to install c/o" for $2,245 and "cable 2 tubs, 1 laundry, 1 k/s line, 2 lavs" for $250 totaling $3,094. Below the listed charges is a separate section detailingindividual charges and discounts resulting in a total amount due. This section indicates eight amounts that are crossed out, with a total amount due of $6,655.98. Scoby first wrote a check to BFP for $1,684.68 but crossed out this amount and then wrote two other checks, one for $3,552.93 and one for $3,103.05. These checks reflected a change in the original scope of work, with the new scope of work equal to $6,655.98.
The agreement also included an "Additional Notes Form," exhibit 2, reflecting the expanded scope of work totaling $6,655.98. This amount included a 10 percent "Club Rewards" discount, exhibit 3, in exchange for a $260.71 payment from Scoby. The additional notes form describes the scope of work: "To replace 21-25 linear feet of 4" sewer line from edge of garage out approximately 25 ft to remove [root-damaged] section will install two way [cut out] and 2 locking ring and covers." Ex. 2. Scoby, upset and frantic, telephoned her daughter Wanda Kristjanson about the sewer line work. Based on her mother's previous unpleasant experience involving a home security alarm company, Kristjanson was concerned that BFP might take advantage of her elderly mother. Shelton told Kristjanson that he could not repair the line and had to replace it. BFP proceeded with the sewer line replacement.
A video admitted at trial as exhibit 7 shows that the installed sewer line extends only 14 feet from the garage edge rather than 25 feet, as described in the additional notes form's scope of work. BFP also failed to install the two locking ring covers, which were included in the contract price.
"Kristjanson did not feel that the work had been done according to the written scope of work presented in the contract." Finding of Fact (FF) 16. She contacted BFPemployee Fred Fazio.9 She expressed concerns and requested that BFP review the work. BFP failed to respond to her request.10 Kristjanson, a signatory on her mother'saccount, stopped payment on the three checks. No one from BFP visited the Scoby property until Gary Jessen filed and personally served Scoby with a lien for the contract price.11
Scoby also presented evidence about repair work involving customer Michelle Todd. 12 FF 23. "Michelle Todd's overcharge impression came from her estimation that the work done on her sink took two and a half hours and she was charged $1,000." FF 24.
BFP owners Rodney Jessen and Gary Jessen13 testified about the Scoby transaction and BFP's operation. The court found their testimony mostly not credible.14 Former BFP employee Robert Wadleigh testified, and the court found his testimony only partially credible.15 He testified that with regard to these types of jobs, labor—rather than materials—constitutes a significant cost.
Raymark Plumbing's sewer utility manager and registered side sewer installer Kevin Flynn testified for Scoby. The court found him credible. FF 35.
The court concluded that Scoby proved BFP violated the CPA. The court also found Rodney and Gary Jessen personally liable for the CPA violations. The court awarded Scoby attorney fees under the CPA and denied BFP's attorney fees request.The court awarded BFP a $3,350 offset for the reasonable value of its work based on Flynn's testimony about the reasonable value of the sewer work. BFP appeals.
Standard of Review
When the trial court has weighed the evidence, our review is limited to determining whether substantial evidence supports the findings and, if so, whether the findings in turn support the trial court's conclusions of law and judgment. Ridgeview Props. v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982). "'Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.'" Brin, 89 Wn. App. at 824 (quoting Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992)). There is a presumption in favor of the trial court's findings, and the party claiming error has the burden of showing that a finding of fact is not supported by substantial evidence. Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990).
We defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence and credibility of the witnesses. Boeing Co. v. Heidy, 147 Wn.2d 78, 87, 51 P.3d 793 (2002). And an appellate court may not substitute its evaluation of the evidence for that made by the trier of fact. Goodman v. Boeing Co., 75 Wn. App. 60, 82-83, 877 P.2d 703 (1994). "The substantial evidence standard is deferential and requires the appellate court to view all evidence and inferences in the light most favorable to the prevailing party." Lewis v. Dep't of Licensing, 157 Wn.2d 446, 468, 139 P.3d 1078 (2006). Unchallenged findings of fact are verities on appeal. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004); seealso RAP 10.3(g). "[A] finding of fact erroneously described as a conclusion of law is reviewed as a finding of fact." Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986).
A trial court's findings may be supplemented or clarified by its oral opinion. In re Marriage of Griffin, 114 Wn.2d 772, 777, 791 P.2d 519 (1990); In re Marriage of Rockwell, 141 Wn. App. 235, 240 n.2, 170 P.3d 572 (2007).
Numerous cases have held that where the trial court fails to make a finding necessary to appellate review, the court may look to the trial court's oral opinion and to the record below and need not remand where the opinion or the record is clear. Pepper v. King County, 61 Wn. App. 339, 350-51, 810 P.2d 527 (1991). Where the language of the finding is equivocal but is susceptible of a construction that will support the judgment, the court will adopt that construction. See Lincoln Shiloh Assocs., Ltd. v. Mukilteo Water Dist., 45 Wn. App. 123, 724 P.2d 1083, 742 P.2d 177 (1986) (). The judgment is supported by the findings even if the findings are inconsistent, if one or more of the findings adequately support the judgment. See Lloyd's of Yakima Floor Center v. Dep't of Labor & Indus., 33 Wn. App. 745, 662 P.2d 391 (1982). We review legal issues de novo. Goodman v. Goodman, 128 Wn.2d 366, 373, 907 P.2d 290 (1995).
ANALYSIS
Bias
BFP asserts that the trial court demonstrated sympathetic bias in Scoby's favor based on the sole fact that the court changed its mind after its oral ruling. Scobyresponds that the record demonstrates no bias. We reject BFP's bias claim as unsupported in law and in fact and raised for the first time in this appeal. A trial court is presumed to perform its functions regularly and properly without bias or prejudice. In re Marriage of Meredith, 148 Wn. App. 887, 903, 201 P.3d 1056 (2009). To show bias, "[e]vidence of a judge's actual or potential bias is required." Meredith, 148...
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