HALL v. ROCKET CONSTR., INC., 47762-5-I (Wash.App. 12-31-2001)

No. 47762-5-I.The Court of Appeals of Washington, Division One.
Filed: December 31, 2001. UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 98-2-26467-5, Hon. Palmer Robinson, November 2, 2000, Judgment or order under review.

Counsel for Appellant(s), John Lukjanowicz, Oles Morrison Rinker, 701 Pike St Ste 1700, Seattle, WA 98101.

Counsel for Respondent(s), Jeffrey T. Broihier, Broihier Wotipka, 720 3rd Ave #1600, Seattle, WA 98104-1825.

Jeremy R. Larson, Suite 3400, 1111 Third Avenue, Seattle, WA 98101.

Sharon E. Cates, 1111 3rd Ave Ste 3400, Seattle, WA 98101.

AGID, C.J.

John Hall appeals the trial court’s judgment in his suit against Rocket Construction. He contests the court’s conclusions of law that (1) Rocket did not breach the contract on the Kingdome project and (2) Hall is entitled to only the value of his services on the Cedar Falls project. Hall contends that he is entitled to the project management fee on the Kingdome project because Rocket breached its oral contract permitting Hall to bid on and build projects for Rocket. Hall also maintains that the amount he is owed on the Cedar Falls project was incorrectly calculated because it did not include overtime compensation.

Because the unchallenged findings of fact support the conclusions of law, we affirm the judgment.

FACTS
John Hall and Rocket Construction, Inc. (Rocket) entered into an oral contract in 1996, which provided that Hall would bid on and build projects for Rocket. Hall later brought multiple lawsuits, one of which was against Rocket for breach of contract. This appeal involves Hall’s claims against Rocket on the Kingdome and Cedar Falls projects.

At trial, Marti Bickford, president of Rocket, testified to the contract terms under which Hall and Rocket operated for two years without any objection from Hall. The trial court found that Ms. Bickford’s version of the contract was the parties’ actual agreement and rejected Hall’s version. Rocket formally terminated its agreement with Hall on September 1, 1998. Ms. Bickford testified that the agreement between the parties was that on projects Hall bid on and built, Rocket was to receive the profits up to 20 percent of the gross revenues, and the remainder of the profits were to be divided equally between them. She also testified that Hall was to receive $1,000 per month as an advance on his earnings. Hall was to specify a project management fee as a portion of each bid, and that fee was part of Hall’s compensation for the whole project. Hall performed other work for Rocket, for which he was to be paid $30.50 per hour. This same figure was used to calculate the project management fees on bid and build projects.

The trial court found that Hall did not keep reliable time records on the work he performed for Rocket and that at times he did not keep any records.

One of the bid and build projects Hall did for Rocket was the Kingdome television monitor seismic retrofit. Hall bid on the project, but he was fired before he could build it. The project management portion of the Kingdome bid was $4,000, and Hall received that amount from the monthly $1,000 advances Rocket paid him. The trial court found that Hall received all the compensation he was owed on the Kingdome project and concluded that Rocket did not breach the contract. Hall built, but did not bid on, the Cedar Falls project. He spent more time on the project than anticipated because of bad weather conditions.

The City Engineer’s records of time spent on the project were submitted as exhibits at trial. They support the trial court’s finding that Hall spent 400 hours on the project over a period of 50 days. Because the trial court found Hall’s timekeeping records unreliable, it calculated the reasonable value of Hall’s services on the project at 400 hours x 30.50 per hour for a total of $12,200.

The total Hall earned for work he performed outside the bid and build contracts was $15,825. He earned $17,946 on the bid and build projects, so his total compensation for all the work he performed for Rocket was $33,771. Rocket paid Hall $27,000 in monthly advances of $1,000 each month. Thus, the court found that Rocket owed Hall $6,771. Based on these factual findings, the trial court concluded that on the Kingdome project Rocket paid Hall in full and did not breach the contract because Hall did not have a vested right to build the project. It concluded that Hall was entitled to the reasonable value of his services for work he performed on all the projects, $6,771. Hall appeals these conclusions and argues he is entitled to an additional $31,220 on the Kingdome project and $2,013 on the Cedar Falls project.[1]

DISCUSSION
Rocket first contends that Hall failed to comply with RAP 10.3(g)[2]
because he did not assign error to the trial court’s findings of fact. Unchallenged findings of fact are verities on appeal,[3] and Hall is only contesting conclusions of law. Accordingly, we will consider only whether the findings of fact support the conclusions of law.

In addition, an appellant’s failure to assign error as required by RAP 10.3(a)(3)[4] does not preclude us from reaching the merits of a case “where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the court is not greatly inconvenienced and the respondent is not prejudiced. . . .”[5] Appellants need not reference particular numbers when challenging conclusions of law, but Hall has specifically assigned error to conclusions of law 3 and 7. We therefore reject Rocket’s argument based on RAP 10.3(g) and review the trial court’s conclusions of law to which Hall assigns error.

Rocket next contends that Hall waived any challenge to the trial court’s conclusions of law. During the hearing on the findings and conclusions, Hall unsuccessfully challenged several of the findings. After that, he agreed to entry of the court’s conclusions of law in light of its findings.[6] Rocket contends this constituted a waiver. Waiver is the intentional and voluntary relinquishment of a known right.[7] It may be either express or implied. Implied waiver requires unequivocal acts or conduct evidencing intent to waive.[8] Intent will not be inferred from ambiguous or doubtful factors.[9] The burden of proving intent to relinquish a right is on the party asserting waiver.[10]
There was no waiver here. Hall’s counsel’s statement does not illustrate intent to waive Hall’s right to appeal. Rocket cites no authority to support its position. Accordingly, we reject Rocket’s contention that Hall waived his right to appeal.

In his first assignment of error, Hall asserts that the trial court erred in not awarding him the project management fee for the Kingdom project. Hall challenges the trial court’s conclusion of law that ‘[d]efendant Rocket Construction fulfilled its obligations under the contract, and did not breach the contract.’ Hall maintains that Rocket breached their contract when it terminated the business relationship and prevented him from performing the build portion of the project. Hall also asserts that he could not be terminated without cause. Because the bid part of the contract was satisfied and he was prepared to build, he contends there was an implied covenant not to interfere with his performance. If he is correct, Rocket would owe him an additional $31,220 in compensation. Rocket counters that Hall’s failure to contest the findings of fact is fatal to its position.[11] We agree. Because Hall fails to contest the trial court’s findings of fact, they are verities on appeal. So long as the findings of fact support the conclusions of law, we will affirm the trial court’s judgment.

The trial court found Rocket’s explanation of the contract credible. Finding of fact 9 states that ‘[t]he parties operated in accordance with the contract as stated by Ms. Bickford [Rocket] for two years, without objection from plaintiff. By all the objective manifestations of the parties, Ms. Bickford’s version of the contract was the parties’ actual agreement.’ Finding of fact 13 states that [p]laintiff has failed to establish by a preponderance of evidence that the parties agreed to a contract on the terms contended by plaintiff. The Court finds that there was no meeting of the minds on the terms which plaintiff claims. Plaintiff did not express to defendants his subjective belief regarding the contract. The Court accepts Ms. Bickford’s testimony that plaintiff’s version of the contract was not the defendants’ agreement or understanding with plaintiff.

The court also found that ‘[t]he plaintiff’s version of the parties’ contract is unreasonable and not credible,’ and that ‘[t]he project management portion of the Kingdome bid was $4,000.00 . . . . Plaintiff received the project management amount for each of these projects from the monthly $1,000.00 advances paid to plaintiff by Rocket.’ Because these findings are verities, we review the challenged conclusion in light of Rocket’s version of the contract.

Despite these findings, Hall reasserts that he had a vested right to build the project as a matter of law because he began to perform by preparing the bid and was ready to complete it by building the Kingdome project. Hall’s argument ignores the court’s findings which support its conclusion that Rocket did not breach its contract with Hall. Because Ms. Bickford’s version of the contract was the actual agreement between the parties and there was no meeting of the minds on Hall’s version of it, he cannot prevail on his breach of contract argument.

In his second assignment of error, Hall asserts that the trial court erred in computing the amount Rocket owed him for his work on the Cedar Falls Project. He contends he is owed $2,013 for 66 hours of overtime he worked on the project. He assigns error to the court’s conclusion that he “is entitled to the reasonable value of his services for work performed for Rocket Construction outside of the bid and build contract between the parties, based upon the equitable doctrine of quantum meruit.” Rocket again maintains that Hall’s failure to contest the findings of fact defeats his position.

Findings of fact 18 and 20 are fatal to Hall’s argument. Finding of fact 18 states that Hall “did not keep reliable time records for work he performed for Rocket Construction.” Finding of fact 20 provides:

Plaintiff built but did not bid the Cedar Falls addition project. The original bid contained a project management fee of $6,000.00. Plaintiff spent more time on the project than anticipated, due in part to adverse weather conditions. The City Engineer’s record of time spent on the project in exhibit 79 supports a reasonable total of 400 hours spent by plaintiff on the project over the course of 50 days. The reasonable value of plaintiff’s services on the Cedar Falls project was $12,200.00.

Without reliable time records, Hall could not prove his overtime claim.

The court’s findings support the challenged conclusion of law, and Hall’s argument fails. Rocket asks for attorney fees on appeal under RAP 18.1, maintaining Hall’s appeal is frivolous under RAP 18.9. “An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there [is] no reasonable possibility of reversal.”[12] All doubts as to whether an appeal is frivolous should be resolved in favor of the appellant.[13]
While Hall’s failure to assign error to the factual findings defeats his arguments on appeal, they were not entirely frivolous. Rocket’s contention that Hall waived any challenge to the conclusions of law is frivolous, so we decline to award it fees.

Affirmed.

GROSSE and COX, concur.