Wagner Development, Inc v. Pape and Sons Construction, Inc and Eileen Hansen

• Decision Date: 28 May 1999
• Docket Number: 92-2-01994-1
• Citation: Wagner Development, Inc v. Pape and Sons Construction, Inc and Eileen Hansen, 92-2-01994-1 (Wash. App. May 28, 1999)
• Court: Washington Court of Appeals
• Parties: <PartyHeader> WAGNER DEVELOPMENT, INC., A WASHINGTON CORPORATION, RESPONDENT, v. PAPE & SONS CONSTRUCTION, INC., AND EILEEN HANSEN, APPELLANTS </PartyHeader>

[1]
[2]	WAGNER DEVELOPMENT, INC., A WASHINGTON CORPORATION, RESPONDENT,; v.; PAPE & SONS CONSTRUCTION, INC., AND EILEEN HANSEN, APPELLANTS
[3]	No. 20451-7-II
[4]	Washington Court of Appeals
[5]	Docket No: 92-2-01994-1
[6]	May 28, 1999
[7]	Counsel: Counsel for Appellant(s) William H. Broughton Broughton & Assoc Inc PS 9057 Washington Ave NW Silverdale, WA 98383 Counsel for Respondent(s) Jeffrey G. Poole Jeffrey G. Poole Pc 1111 Third Ave. Seattle, WA 98101
[8]	The opinion of the court was delivered by: Seinfeld, J.
[9]	Source of Appeal: Appeal from Superior Court of Kitsap County
[10]	Judgement or order under review Date filed: 02/23/1996
[11]	Judge signing: Hon. James D. Roper
[12]	Concurring: Carroll C. Bridgewater David H. Armstrong
[13]	[Editor's note: originally released as an unpublished opinion]
[14]	- In this lien foreclosure case, Pape & Sons Construction, Inc., a general contractor, appeals a Judgement in favor of Wagner Development, Inc., its sub-contractor. Pape challenges certain jury instructions, the amount of the Judgement, and the award and amount of attorney fees and prejudgment interest. Finding error in the calculation of the lien Judgement and in the attorney fees and prejudgment interest awards, we reverse in part.
[15]	FACTS
[16]	Pape signed a general construction contract with Poulsbo residential developer Eileen Hansen and awarded Wagner the subcontract for clearing and excavating. The subcontract amount was $54,485. An indemnity clause in the Pape-Wagner contract provided in part:
[17]	"The Subcontractor shall further indemnify the Contractor from any damage or expense by reason of failure or performance as specified in the contract or from defects appearing in the materials or workmanship of the Subcontractor's work." Clerk's Papers at 47.
[18]	The project fell behind schedule and Wagner, complaining it had not received payment for all of its services, ceased work. Pape then completed the project and billed Wagner for its costs.
[19]	Wagner filed a mechanics' and materialmen's lien against the development for the $17,357 that Wagner claimed Pape owed it, and later Wagner brought this action against Pape and Hansen to foreclose the lien. Wagner claimed it was owed $50,680 plus interest for unpaid work, and $5,000 in attorney fees. Pape counterclaimed for wrongful filing of a lien, seeking $200,000 in damages. Pape and Hansen then brought various actions against each other but settled their claims shortly before trial. The trial court excluded evidence of the Pape-Hansen settlement agreement but did allow evidence of the settlement amount. Pape agreed to exclude liquidated damages from its claim after Wagner pointed out that the settlement agreement compensated Hansen for her out-of-pocket costs, but not liquidated damages.
[20]	Hansen testified as to the $500 per day liquidated damages clause in the contract between her and Pape. Hansen also testified, over Wagner's objection, that Pape had paid her $58,000 for out-of-pocket expenses. In closing argument, over Wagner's objection, Pape argued that its project with Hansen was delayed by 140 days. Pape's counsel then stated:
[21]	"So we have got $70,000.00 worth of liquidated damages. "Now, again, Wagner was liable to Pape for $500.00 a day. Are we coming in here now and suing Wagner for $70,000.00? No. I mean - and if you add interest to the $70,000.00 you come up with $107,000. All we're asking for is what we paid. We're trying to get Wagner Development to benefit of the difference in this case. Under the indemnification paragraph, we're not suing them ourselves for liquidated damages. We're just saying, "Pay us back what we paid Eileen Hansen." " Report of Proceedings volume XI, at 106.
[22]	After the jury retired to deliberate, Wagner moved for sanctions against Pape for its closing argument remarks on liquidated damages. The court conducted a telephonic hearing on the motion, during which Wagner moved for an additional instruction advising the jury not to award "any liquidated damages, and that they are to disregard anything said in the closing with regard to liquidated damages." Pape denied asking for liquidated damages, stating that it merely responded to an instruction on delay damages.
[23]	The trial court ruled it would issue a curative instruction and directed both parties to draft it. Pape did not object. The trial court chose to give an edited version of Wagner's instruction. Again, Pape did not object. Nor did Pape object to the trial court's giving the instruction in counsel's absence.
[24]	The trial court issued the following instruction:
[25]	"You are instructed that there is no claim by Pape in this action against Wagner for liquidated damages. You are instructed not to award any liquidated damages to Pape, as mentioned in the contract between Pape and Hansen, Section 1.11." Report of Proceedings volume XI, at 143.
[26]	The jury found: (1) Pape had breached its contract with Wagner; (2) Wagner had suffered no damages as a result; (3) Pape owed Wagner $17,237.43 on the lien foreclosure; (4) Wagner had breached its contract with Pape, (5) Wagner owed Pape $13,741 in damages; and (6) both parties had prevailed. All parties moved for attorney fees and costs. Wagner submitted a 35-page itemized statement of attorney fees totaling more than $87,000. In a memorandum opinion, the trial court held that Wagner "clearly prevailed" and was entitled to $25,000 in attorney fees, including $1,500 for paralegal help.
[27]	The trial court found:
[28]	"{T}hat Wagner is entitled to foreclosure of its lien in the amount of $17,237.43 from the date of filing its lien, offset by a jury verdict in favor of Pape in the amount of $13,741.00, for a net total of $3,496.43 plus prejudgment interest from the date of filing of lien on the net total at 12% per annum. ". . . . "Under RCW 60.04.130, the prevailing party in this action is Wagner and Wagner shall be awarded the sum of Twenty Five Thousand Dollars ($25,000), which is reasonable, as attorney's fees. Pursuant to the terms of this statute, Wagner is also entitled to the monies paid for filing its lien claim." Clerk's Papers at 899 (Findings of Fact IX, XII).
[29]	The trial court entered Judgement accordingly.
[30]	Pape appeals, arguing eight assignments of error that raise issues related to (1) jury instructions, (2) an evidentiary ruling, (3) the lien claim award, (4) the attorney fees award, and (5) the award of prejudgment interest.
[31]	DISCUSSION
[32]	I. Jury Instructions
[33]	A. Supplemental Jury Instruction
[34]	Pape argues that the court erred in giving a supplemental jury instruction during deliberations. We disagree.
[35]	Although Pape protested that it had not raised the issue of liquidated damages in closing argument, it did not object to the giving of the instruction. Further, when the trial court chose to give an edited version of Wagner's instruction, Pape did not object. Nor did Pape's counsel object to the giving of the instruction in his absence.
[36]	A party's failure to object to an instruction before the instruction is read to the jury constitutes a waiver of that issue on appeal unless the instruction invades a party's constitutional rights. State v. Hickman, 135 Wn.2d 97, 104-05, 954 P.2d 900 (1998); State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). Pape did not object to the supplemental instruction and raises no constitutional arguments on appeal. Consequently, Pape has waived this issue.
[37]	B. Instructions 9, 10, 11, 15, 19, and 21.
[38]	Pape contends that the trial court erred in giving Instructions 9, 10, 11, 15, 19, and 21. But it provides no argument to support its challenge to Instructions 10, 15, and 19 and, thus, has waived its assignments of error as to these three instructions. Puget Sound Plywood, Inc. v. Mester, 86 Wn.2d 135, 142, 542 P.2d 756 (1975); In re Marriage of Glass, 67 Wn. App. 378, 381, 835 P.2d 1054 (1992).
[39]	Pape argues that Instructions 9, 11, and 21 are erroneous because they overemphasize Wagner's theory of the

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