No. 26735-7-II.The Court of Appeals of Washington, Division Two.
Filed: August 9, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Mason County, No. 99-2-00023-8, Hon. James B. Sawyer II, October 30, 2000, Judgment or order under review.
Counsel for Appellant(s), Thomas F. Miller, Attorney At Law, 2938 Limited Lane NW, Ste a, Olympia, WA 98502.
Counsel for Respondent(s), Richard T. Hoss, Hoss and Wilson-Hoss, 236 W. Birch St., Shelton, WA 98584.
DAVID H. ARMSTRONG, J.
The Schardts hired Goodwin Construction, Inc. (Goodwin) to build a house. When the Schardts refused to pay the final invoice, Goodwin sued and the Schardts counterclaimed for construction defects, unfair billing practices, and failure to provide a disclosure statement required by law. The trial court found that the Schardts owed Goodwin approximately $4,300, but awarded the Schardts $16,734 for the construction defects and $14,520 in attorney fees. Goodwin appeals a finding that it violated the Consumer Protection Act by failing to pass on supplier discounts, and it disputes the attorney fee award. We reverse.
FACTS
George and Mildred Schardt hired Goodwin Construction, operated by Gary Goodwin, to rebuild their house after it was destroyed by fire. Goodwin provided an estimate, but the parties had no written agreement. Goodwin completed the house and sued the Schardts because they refused to pay the final invoice. The Schardts counterclaimed for damages based on alleged construction defects, unfair billing practices, and failure to provide a disclosure statement required by the Consumer Protection Act (CPA). After a bench trial, the court found that the Schardts owed Goodwin $4,297.54. But the court awarded $16,734.00 to the Schardts to remedy construction defects. An engineering report for the house, which was required to obtain the building permit, specified 6′ by 6′ support beams, but Goodwin used three 2′ by 6′ boards nailed together. Goodwin also built a deck that violated building codes. The floor of the home vibrated because Goodwin failed to install proper bracing. And Goodwin failed to properly seal a concrete joint, which allowed water to seep through the foundation.
The court also concluded that Goodwin committed two CPA violations. First, the court found that Goodwin violated the CPA by failing to provide the Schardts with a disclosure statement required by RCW 18.27.114.[1] This is a per se violation of the CPA. RCW 18.27.350. Second, the court found that Goodwin committed an unfair and deceptive act under the CPA by failing to pass on discounts it received from its suppliers, but the court could not determine the damages based on the record.
The court awarded the Schardts $14,520.00 in attorney fees under the CPA and under RCW 4.84.250, which provides for attorney fees in an action where the plaintiff seeks $10,000 or less in damages. On appeal, Goodwin disputes (1) the finding that failing to pass on supplier discounts was a CPA violation and (2) the attorney fee award.
ANALYSIS I. Consumer Protection Act Violations
Goodwin challenges the trial court’s conclusion that it violated the CPA, Chapter 19.86 RCW, by failing to pass on supplier discounts. The CPA prohibits unfair or deceptive acts or practices in business. RCW 19.86.020. To support a claim under the CPA, a plaintiff must present evidence of (1) an unfair or deceptive act (2) committed in trade or commerce (3) that impacts the public interest and (4) injures the plaintiff’s business or property, as well as (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). Whether particular actions violate the CPA is a legal question, which we review de novo. Svendsen v. Stock, 143 Wn.2d 546, 553, 23 P.3d 455
(2001).
The trial court concluded that Goodwin committed an unfair and deceptive act by failing to pass on to its customers the discounts it received from its suppliers. Goodwin testified that he received a discount, usually two percent of the purchase price, for making timely payments to suppliers. But he does not pass the discounts on to customers because it is a reward for paying his bills on time. Goodwin argues that this is not unfair or deceptive because the amount of the discount is insignificant and because it has no obligation to pass on the discounts.
Regardless of whether the trial court properly found CPA violations, we hold that the Schardts did not show that they were entitled to recover damages or attorney fees under the CPA. Only a `person who is injured in his or her business or property’ may sue for damages, an injunction, or both, and attorney fees under the CPA. RCW 19.86.090. A person need not suffer monetary damages to suffer injury. Mason v. Mortgage America, Inc., 114 Wn.2d 842, 854, 792 P.2d 142 (1990). For instance, a person is injured when he is deprived of the use of his property because of an unfair or deceptive practice. Mason, 114 Wn.2d at 854. Here, the trial court awarded only attorney fees, not damages, for the two CPA violations. But the Schardts have not shown that they were injured, either by Goodwin’s failure to provide the disclosure statement or its failure to pass on supplier discounts and, thus, entitled to attorney fees.
The Schardts contend that, even though the trial court awarded no damages, they suffered monetary damage when Goodwin retained the two percent supplier discounts. But they failed to carry their burden of proving the amount, and they presented no evidence that they were otherwise injured. Accordingly, because the Schardts have not shown that they were injured by Goodwin’s CPA violations, we reverse the trial court’s award of attorney fees under the CPA.
II. Attorney Fees Under RCW 4.84.250
Goodwin also argues that the trial court erred by awarding attorney fees to the Schardts under RCW 4.84.250, which provides for an attorney fee award in an action where the plaintiff seeks damages totaling $10,000 or less.
The prayer for relief in Goodwin’s complaint asked for only $5,946.84. But, only two lines above, the complaint stated that Goodwin had been damaged in the amount of $38,854. And Goodwin notified the court that the prayer for relief was a typographical error and that he wanted at least $20,000. Moreover, the parties stipulated that either party was entitled to any amount of damages it could prove. Thus, the parties and the court understood that Goodwin sought more than $10,000. See Schmerer v. Darcy, 80 Wn. App. 499, 510, 910 P.2d 498 (1996) (constructive notice that claim amount is less than $10,000 may justify an attorney fee award under RCW 4.84.240).
The Schardts defend their attorney fee award under RCW 4.84.250
by pointing to the trial court’s conclusion that they owed Goodwin only $4,297.54. But the amount of damages sought, not the amount awarded, is relevant under RCW 4.84.250.
The Schardts request attorney fees under RCW 4.84.250 and RCW 19.86.090
for this appeal. Because the Schardts are not entitled to attorney fees under either statute, we deny their request.
We reverse.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, J., HUNT, C.J.