No. 19871-5-III.The Court of Appeals of Washington, Division Three. Panel Two.
Filed: January 10, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of Grant County, No. 93-2-00720-1, Hon. Evan E. Sperline, December 6, 2000, Judgment or order under review.
Counsel for Appellant(s) Terry E. Miller 7409 W. Grandridge Suite C, Kennewick, WA 99336
Counsel for Respondent(s) John P. Ahlers Barokas Martin 1422 Bellevue Ave., Seattle, WA 98122
John P. Ahlers, Barokas Martin, 1422 Bellevue Ave., Seattle, WA 98122
H. Richmond Fisher, 1422 Bellevue Ave, Seattle, WA 98122-3604
John P. Mele, Ryan Swanson Cleveland, Ste 3400, 1201 3rd Ave, Seattle, WA 98101-3034
Roger A. Myklebust Ryan Swanson Cleveland 1201 3rd Ave Ste 3400 Seattle, WA 98101-3034
KATO, J.
Gilbert H. Moen Company was the general contractor for the renovation and expansion of Samaritan Hospital in Moses Lake. Alcan Electrical
Engineering Co. was a subcontractor on the project. Alcan sued Moen for payment. Moen filed a counterclaim against Alcan, arguing that any payment was subject to an offset for liquidated damages resulting from Alcan’s delay of the project. The court determined that there was a 201-day delay, 31 days for which Alcan was responsible. Alcan’s award was thus subject to an offset for its delay. The court awarded Alcan $25,235. Claiming Alcan was responsible for more than 31 days of the delay, Moen appeals and seeks attorney fees. We affirm.
Samaritan Hospital hired Moen as the general contractor for its renovation and expansion project which was to be completed on May 27, 1992.
The contract contained a liquidated damages clause, providing damages of $900 for each day the project was delayed.
The project had two phases: construction of the addition (Phase I), and expansion of the existing space (Phase II). Phase I had to be substantially completed before Phase II could begin. Phase I was scheduled to be completed by July 8, 1991.
Moen subcontracted with Alcan for the electrical work and Apollo Sheet Metal for the mechanical work. The project completion date was July 8, 1991, which was then extended by agreement to May 27, 1992.
The project was substantially completed on December 17, 1992 — 201 days after the agreed completion date of May 27.
Claiming it had not been paid under the terms of its contract, Alcan sued Moen. Moen answered that any amount owing was subject to offsets because of Alcan’s delay of the project that triggered the assessment of liquidated damages. Moen also filed a counterclaim against Alcan for breach of contract and a cross claim against Samaritan for breach of contract.
The court determined the entire 201-day delay was attributable to Moen and its subcontractors. Samaritan was therefore entitled to $180,900 in liquidated damages.
The court found the 201-day delay was the result of Apollo’s unauthorized installation of nonconforming pipe, as well as Alcan’s failure to submit fire alarm shop drawings to the Fire Marshall in a timely manner. Apollo’s work on the project should have been done by July 8, 1991, but was not completed until January 4, 1992. The court accordingly determined that Apollo’s installation of the wrong pipe delayed the project 170 days.
Even though Alcan’s work also should have been completed by July 8, 1991, its work was not substantially completed until after February 4, 1992. The court found Alcan’s untimely submission of fire alarm shop drawings caused a 31-day delay.
The court determined that under the subcontract, Alcan was liable to Moen for liquidated damages assessed against it for the 31-day delay of the project attributable to Alcan. The court also held that Apollo was similarly liable to Moen for liquidated damages assessed against it for Apollo’s 170-day delay of the project.
As to Moen and Alcan, the net result after resolution of their various claims against each other was that Moen owed Alcan $25,235 for its work on the project. The court also awarded Alcan statutory costs. This appeal follows. Moen claims the court erred by holding Alcan was only responsible for 31 days of the delay. It is undisputed that although the project completion date was May 27, 1992, substantial completion of the project actually occurred on December 17, 1992 — 201 days late. It is also undisputed that both Apollo and Alcan were the subcontractors responsible for the delay. What Moen disputes is the apportionment of their delay by the trial court. Moen asserts that the two subcontractors caused a concurrent delay and are therefore both liable for liquidated damages for the same period of time.
Generally, a party to a contract cannot recover liquidated damages for a breach to which he has contributed and there can be no apportionment of liquidated damages when both parties are at fault. Baldwin v. Nat’l Safe Depository Corp., 40 Wn. App. 69, 72, 697 P.2d 587, review denied, 104 Wn.2d 1002 (1985). The reason for this rule is the difficulty in proving who is responsible for what damages. Id. But there are certain circumstances when apportionment is proper. Id. In Baldwin, the court permitted apportionment because the jury was presented with an adequate basis to allocate the contractual measure of damages to the respective parties. Id. at 73.
Moen claims that both Alcan and Apollo should have been held to be jointly and severally liable for the entire delay. However, it cites no authority in support of this claim. Indeed, other than citing cases that it admits are factually distinguishable, Moen provides no other supporting legal argument. We have not been directed to any authority in Washington or any other jurisdiction that holds joint and several liability is proper in this situation and we decline to so hold.
Moen also takes issue with the court’s apportionment of the delay between Alcan and Apollo. It argues that Alcan was responsible for more than 31 days of the delay. No Washington case specifically addresses how to apportion liquidated damages when two subcontractors cause a concurrent delay. But Illinois has addressed the question and found that “the issue of apportioning damages in a case of mutual delay is a question of fact.” Pathman Constr. Co. v. Hi-Way Elec. Co., 65 Ill. App.3d 480, 488, 382 N.E.2d 453, 460 (1978). The amount of the delay attributable to each party is a question that must be resolved by the trier of fact. Id. This approach is similar to that in Washington for awarding damages when more than one factor is responsible for the damages:
[W]here the amount of damage is not susceptible of exact apportionment between the defendant’s fault and other factors contributing to the loss, absolute certainty is not required. The trier of fact must exercise a large measure of responsible and informed discretion where the fact of damage is proved.Long v. T-H Trucking Co., 4 Wn. App. 922, 927, 486 P.2d 300 (1971); see also Alpine Indus., Inc. v. Gohl, 30 Wn. App. 750, 755, 637 P.2d 998, 645 P.2d 737 (1981), review denied, 97 Wn.2d 1013 (1982). We find the Illinois court’s resolution persuasive in answering the question at hand. Determining how to apportion the delay is an issue that should be left to the discretion of the trier of fact.
The trial court, in so acting, apportioned the delay between the subcontractors. It found Apollo was responsible for 170 days of the delay.
The evidence adequately supports this finding.
The court also found that Alcan’s failure to timely submit fire alarm shop drawings resulted in a delay of 31 days. The evidence showed that during November and December 1991, Alcan was working with the Fire Marshall to come up with drawings that satisfied his requirements. In December 1991, Alcan wrote to Moen, asking when it would get a response from the architect regarding the fire alarm system and when it would be able to complete its work. During this time, tests of the nonconforming pipe were being done. These tests required the removal of walls and ceilings. An expert testified that the pipe testing process went almost into January 1992. It can be inferred from this that, until the pipe testing was complete, Alcan could not have installed the fire alarm system. Therefore, it was reasonable for the court to find that Alcan was only responsible for the 31-day delay from January 4 to February 4, 1992.
Moen contests the court’s failure to find that Alcan further delayed the project by not completing its generator work on time. But Moen does not cite any evidence that is part of the record on appeal to support this claim.[1] This court will not comb through the record to see if such a finding should have been made. See In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998).
The evidence supports the court’s findings of fact. Therefore, the apportionment of the delay resulting in the liquidated damages was made within the court’s reasoned discretion. There is no basis for reversal See Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234
(1999). Moen next claims that it is entitled to an award of attorney fees for the costs incurred in the litigation and at trial. Its subcontract with Alcan provides for an award of fees to the prevailing party. Moen requested fees in its answer, counterclaim, and third party complaint. But there is nothing in the record indicating why the court denied this request. As the appellant, Moen has the burden of perfecting the record on appeal. Nelson v. Schubert, 98 Wn. App. 754, 764, 994 P.2d 225
(2000). Without an adequate record, we cannot review the issue. Id. Both parties request an award of attorney fees on appeal. Because Moen has not prevailed here, it is not entitled to such an award.
Alcan claims it is entitled to fees under RAP 18.1, RCW 4.84.330, and its contract with Moen. RAP 18.1 authorizes an award of fees on appeal if applicable law allows for fees. When a contract specifically awards attorney fees and costs to the prevailing party in an action to enforce the contract, that party is entitled to reasonable attorney fees and costs. RCW 4.84.330. A contract which provides for an award of fees at trial also supports an award of fees on appeal. Marine Enters., Inc. v. Sec. Pac. Trading Corp., 50 Wn. App. 768, 774, 750 P.2d 1290, review denied, 111 Wn.2d 1013 (1988). Alcan has prevailed on appeal and is entitled to an award of fees.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: BROWN, A.C.J. and SCHULTHEIS, J.