WM. Dickson Co. v. Misenar Construction, Inc.
| Decision Date | 02 July 2013 |
| Docket Number | 42489-4-II |
| Court | Washington Court of Appeals |
| Parties | WM. DICKSON COMPANY, Respondent, v. MISENAR CONSTRUCTION, INC. d/b/a MISENAR HOMES, Appellant. |
UNPUBLISHED OPINION
Misenar Construction Inc. (Misenar) appeals the trial court's ruling that it owed Wm. Dickson Company (Dickson) for unpaid excavation and site development work that Dickson performed at Misenar's housing development. We affirm and hold that substantial evidence supports the challenged findings of fact which in turn support the trial court's conclusions of law. We also award Dickson reasonable attorney fees on appeal.
In October 2005, Misenar contracted with Dickson for development services on Misenar's new Lakeridge Estates housing development. Their written contract included the work's basic scope, the price and terms, insurance terms, and written change order requirements in a standard construction industry format. Dickson's initial bid for the work was $411, 531.05. Throughout the project the parties discussed verbally and by e-mail, several changes to the contract. These changes required Dickson to perform additional work, at additional cost and delay. But Dickson believed that Misenar (1) approved all changes prior to Dickson doing the work, (2) accepted all its work, and (3) agreed to pay Dickson for the work. Misenar paid Dickson the original contract amount plus approximately $46, 000 in changes but left several charged amounts unpaid. In May 2007, Dickson's work ended and Misenar made its final payment to Dickson.
In January 2009, Dickson filed its complaint against Misenar for breach of contract and quantum meruit/unjust enrichment seeking a judgment for $81, 233.14 plus interest from May 2007. In response, Misenar (1) denied that it owed Dickson more money than it had already paid, (2) raised several affirmative defenses, and (3) sought judgment against Dickson for Dickson's breach of contract.
In May 2009, Misenar moved for summary judgment dismissal of all Dickson's claims. In response, Dickson argued that factual questions remained making the case improper for summary judgment. In denying Misenar's summary judgment motion, the trial court's order provided, in part:
While the Mike M. Johnson case[1] has strong language as to whether recovery can be made if the contract language as to change orders is not followed, the facts in that case are significantly different than the facts in the instant manner. [Tjhere are factual issues as to whether the parties agreed to deviate from the contract language. There are also credibility determinations which cannot be made on a summary judgment motion.
Between May 2009 and May 2010, the trial court permitted Misenar to file three amended answers. Each amended answer included additional breach of contract counterclaims against Dickson.
Trial began on September 21, 2010. After Dickson rested its case on September 27, Misenar moved for a directed verdict on its counterclaims under CR 7(a) and CR 8(d) because Dickson had not filed a reply to Misenar's counterclaims. Misenar argued that because Dickson's failure to reply was an admission of breach, the trial court should enter judgment in Misenar's favor for its counterclaims. The next day Dickson filed a motion for leave to file a late reply to Misenar's counterclaims and a response to Misenar's motion for directed verdict. Dickson also filed its reply to Misenar's counterclaims and asserted several affirmative defenses. Dickson argued that the trial court should (1) treat Misenar's motion for directed verdict as a motion for default, (2) deny it, and (3) thereby accept Dickson's late filing. Dickson argued that it complied with CR 55(a)(1) because it had provided ample notice to Misenar of its position on the counterclaims and had already presented testimony at trial denying the counterclaims. Misenar moved to strike Dickson's reply.
Two days later, the court heard argument on (1) Dickson's motion for leave to file a late reply, (2) Misenar's motion to strike Dickson's untimely reply and affirmative defenses, and (3) Misenar's motion for directed verdict in that order. First, the trial court granted Dickson leave to file its late reply, finding that doing so appropriately allowed the case to be decided on the merits.
Next, the trial court determined that Dickson's late filing was negligent, but that it was excusable because the parties' filings and discovery throughout the case indicated both parties' understanding that Dickson denied the counterclaims. Thus, the trial court denied Misenar's motion to strike Dickson's entire reply, but it granted Misenar's motion to strike Dickson's affirmative defenses, finding that allowing Dickson's affirmative defenses so late in the case would prejudice Misenar.
Third, the trial court treated Misenar's motion for a directed verdict as a CR 12(c) motion for judgment on the pleadings. But, the trial court concluded that Dickson met its burden to prove that the parties had waived the written change order requirement, and denied Misenar's motion.[2]
Trial then continued with Misenar's case. Several months after trial, the trial court issued its ruling, ordering Misenar to pay Dickson an additional $80, 341.52.[3] Misenar appeals.
As a threshold issue, we reject Misenar's argument that the trial court erred when it denied Misenar's motion for summary judgment because a summary judgment order is not appealable after trial. A party cannot appeal a denial of summary judgment following a trial if the denial was based upon a determination that material facts were in dispute and must be resolved by the trier of fact. Johnson v. Rothstein, 52 Wn.App. 303, 304, 759 P.2d 471 (1988). Under RAP 12.1(b), we can raise this issue sua sponte because it "is one that affects judicial economy and involves interpreting court rules that define our jurisdiction." Rothstein, 52 Wn.App. at 304-05. Here, the trial court clearly determined that there were disputed facts which must be resolved by the trier of fact; thus the summary judgment order cannot be appealed because it was followed by a trial. Rothstein, 52 Wn.App. at 304.
Next, Misenar argues that the trial court erred in denying its motion for a directed verdict on its counterclaims because a plaintiff is required to file a reply to a counterclaim and Dickson's failure to reply constituted Dickson's admission as to those claims. Misenar argues that under CR 7(a), CR 8(d), and CR 12(a)(4), the trial court did not have discretion to allow Dickson's untimely reply. We disagree.
We review a trial court's order granting a motion to file an untimely reply for abuse of discretion. A trial court abuses its discretion if it denies a request to file an untimely reply "for no apparent reason." Beers v. Ross, 137Wn. App. 566, 574, 154 P.3d 277 (2007) (citing CR 6(b); Goucher v. J.R. Simplot Co., 104 Wn.2d 662, 665, 709 P.2d 774 (1985)). Also, we support substantial compliance with the pleading rules to adequately promote justice and give defendants their day in court. Morin v. Burris, 160 Wn.2d 745, 757, 161 P.3d 956 (2007).
Here, the trial court supported its decision to allow Dickson's late filing with several reasons. The trial court found that the parties' pretrial filings and discovery indicated that the parties understood that Dickson denied the claims and that the parties had effectively joined Misenar's breach of contract counterclaims to the other issues in the case. Also, the trial court noted that Dickson had presented testimony denying the counterclaims in its case in chief.
Nonetheless, Misenar argues that we should apply the rule from Jansen v. Nu-West, Inc., that the failure to deny an averment in a counterclaim constitutes an admission and therefore Dickson admitted Misenar's counterclaims. 102 Wn.App. 432, 438, 6 P.3d 98 (2000), review denied, 143 Wn.2d 1006 (2001). But, Jansen is distinguishable because here, the trial court granted Dickson leave to file its reply; whereas in Jansen the plaintiff waited a year after the summary judgment order to file its reply and did not seek leave of court before doing so. Also, unlike in Jansen, here, the trial court found that Dickson's failure to file its reply was excusable because it was clear that both parties understood that Dickson denied the counterclaims. Further, Jensen involved res judicata because the trial court there granted summary judgment which precluded further litigation on those issues, but here the trial court did not order summary judgment for Misenar. Instead, the trial court specifically rejected the opportunity to do so and allowed the case to proceed on the merits.
We affirm the trial court's decision to allow Dickson's late reply filing, effectively denying Misenar's request for judgment on its counterclaims, because the trial court supported its decision with rational reasons. Beers, 137 Wn.App. at 573. We also affirm because Dickson clearly acknowledged the counterclaims in court through its filings and testimony, thereby substantially complying with the pleading rules. Morin, 160 Wn.2d at 756.
Misenar assigns error to several of the trial court's findings of fact[4] and conclusions of law.[5] After a careful and thorough review of the record, we hold that substantial evidence supports the trial court's findings, and that the trial court did not err in its conclusions.
Where a party challenges a trial court's findings of fact and conclusions of law, we limit our review to determining whether substantial evidence supports the findings and whether those findings, in turn, support its legal...
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