Opinion
No. 57030-7-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-2-02015-0, Douglas D. McBroom, J., entered August 25, 2005.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Dwyer, J., concurred in by Coleman and Ellington, JJ.
Cintas Corporation sued C.C. Cavanaugh, Inc. (Cavanaugh) for breach of contract. Cavanaugh counterclaimed for breach of contract and for violation of the Washington Consumer Protection Act, chapter 19.86 RCW. The trial court found in favor of Cavanaugh on both breach of contract claims, and in favor of Cintas on Cavanaugh's Consumer Protection Act claim. Cavanaugh appeals, contending that the trial court erred by finding in favor of Cintas on the Consumer Protection Act claim, by awarding attorneys' fees to Cintas, and by not awarding attorneys' fees to Cavanaugh. We reverse the award of attorneys' fees to Cintas and remand this matter to the trial court for an award of attorneys' fees to Cavanaugh, solely for those fees reasonably incurred in defending against Cintas' breach of contract action. In all other respects, we affirm the judgment.
FACTS Underlying Dispute
Cavanaugh owns and operates an Ace Hardware Store in Auburn, which is managed by Mr. and Mrs. Cavanaugh, a married couple. Cintas supplies safety and sanitation products to Washington businesses.
In June 2001, Ryan Joswick, a sales representative for Cintas, met with Mr. Cavanaugh regarding Cintas' services. At that meeting, Joswick presented a form contract to Mr. Cavanaugh, which Mr. Cavanaugh read and signed. Under the contract, Cintas agreed to supply and maintain entry-way mats for Cavanaugh's Ace Hardware store, and Cavanaugh agreed to pay for Cintas' services. The contract contains a quality guarantee which provides, in relevant part:
The company guarantees to deliver the highest quality textile rental service at all times. . . . If the Company . . . fails to resolve any material complaint in a reasonable period of time, the Customer may terminate this agreement.
The contract also contains the following 60-month term:
This service agreement is effective as of the date of execution above and shall remain in effect for sixty (60) months from the date of installation.
Mr. Cavanaugh testified at trial that he specifically asked Joswick about the 60-month term before signing the contract. Mr. Cavanaugh further testified that Joswick told him that Cavanaugh did not have to worry about the 60-month term. The court then interjected to clarify Mr. Cavanaugh's testimony. In response to the trial court's questioning, Mr. Cavanaugh acknowledged that he could not remember Joswick's exact words, and that Joswick could have told him that Cavanaugh could get out of the contract if it was unsatisfied with Cintas' services.
Mr. Cavanaugh testified:
I said, so this is kind of boilerplate and legalese down here. And I read down to the 60-month thing and again inquired.
And [Joswick] said, You don't have to worry about the written part of that contract. What we are providing you are the services and products up above, and, again, inferring on their high degree of quality and service and standards.
Verbatim Report of Proceedings (VRP) (Jan. 27, 2005) at 78.
The exchange between the trial court and Cavanaugh was as follows:
THE COURT: Tell me that again. Now, you said this is boilerplate legalese, and what did he say?
MR. CAVANAUGH: He said, to the effect, I don't remember the exact words two and a half years ago, but to the effect that the written portion of this contract-and he didn't say contract, of this agreement or whatever the term was he used-was legalese and that we would not be bound, that we could get out of this contract at any time, or out of this agreement at any time.
THE COURT: Did he say at any time, or any time you are not satisfied with our service, or do you remember?
MR. CAVANAUGH: I don't remember.
THE COURT: He might have said any time you are not satisfied with the service?
MR. CAVANAUGH: He could have.
VRP (Jan. 27, 2005) at 79.
Over the next several months, Cavanaugh became dissatisfied with Cintas' services. In August 2002, Cavanaugh informed Cintas that it wished to discontinue those services.
Procedural History
In March 2003, Cintas initiated suit against Cavanaugh, alleging that Cavanaugh breached the contract by discontinuing Cintas' services before the completion of the 60-month term. Cintas pleaded a total amount of damages of $1,830.92.
Cavanaugh filed counterclaims against Cintas claiming, first, that Cintas breached the contract by failing to comply with the quality guarantee and, second, that Cintas' representation to Cavanaugh regarding the contract's 60-month term amounted to a deceptive act or practice in violation of the Consumer Protection Act (CPA). Cavanaugh asserted that it was damaged both by the alleged breach of contract and by the alleged CPA violation. Cavanaugh pleaded for (1) breach of contract damages of up to $3,000 and (2) damages and a trebled award of damages pursuant to the CPA, in an amount of up to $10,000.
Because of the modest amounts at issue, the case was assigned to mandatory arbitration. The arbitrator ruled against both parties on all affirmative claims and, ruling that there was no prevailing party, declined to award attorneys' fees to either party. Cavanaugh requested a trial de novo. "Cavanaugh's sole purpose in requesting a trial de novo was not to pursue its counterclaims, but rather their [sic] right to an award of fees." Reply Br. of Appellant at 23.
The case proceeded to bench trial in January 2005. After the trial's completion, the trial court found in favor of Cintas on Cavanaugh's claim pursuant to the CPA, concluding that Cintas' representation to Cavanaugh did not constitute a deceptive act or practice within the meaning of the CPA.
The trial court found in favor of Cavanaugh both on Cintas' breach of contract claim and on Cavanaugh's breach of contract counterclaim, concluding that Cintas had breached the contract by failing to comply with the contract's quality guarantee. The trial court awarded Cavanaugh nominal damages of $200. The trial court also entered a conclusion of law that Cavanaugh was entitled to attorneys' fees, subject to the provisions of chapter 4.84 RCW.
RCW 4.84.250 mandates an award of attorneys' fees to the "prevailing party" in actions for damages in which the amount pleaded is less than $10,000.
In July 2005, Cavanaugh moved for an award of attorneys' fees for its efforts expended on both breach of contract claims, indicating a total amount of billed fees and costs of approximately $70,000. Cintas objected to Cavanaugh's request for attorneys' fees and moved for an award of attorneys' fees of its own for its efforts expended in defending against Cavanaugh's breach of contract counterclaim, pursuant to RCW 4.84.270, indicating a total amount of billed fees and costs of approximately $36,000.
RCW 4.84.270 provides that the party resisting relief is the prevailing party for the purpose of awarding attorneys' fees under RCW 4.84.250 when the recovery is the same as or less than the amount offered in settlement by that party.
The trial court then filed a written judgment, providing in part that "reasonable attorney fees and costs in the amount of $3000.00 are ordered to be paid by Cavanaugh to Cintas pursuant to RCW 4.84.250 and .270." Cavanaugh was not awarded attorneys' fees.
The trial court did not indicate in its written judgment which party it determined to be prevailing on each of the breach of contract claims or how the amount of Cintas' fee award was calculated. The trial court did not issue further findings of fact and conclusions of law on these issues.
This appeal followed.
DISCUSSION
A. Attorneys' Fees
Cavanaugh contends that the trial court erred by awarding attorneys' fees to Cintas and by not awarding attorneys' fees to Cavanaugh. Specifically, Cavanaugh argues that it is the prevailing party entitled to attorneys' fees on Cintas' breach of contract claim, as well as on Cavanaugh's counterclaim action, pursuant to RCW 4.84.250.
In its reply brief to this court, Cavanaugh also raises a claim for attorneys' fees pursuant to MAR 7.3. However, Cavanaugh specifically asserted to the trial court that MAR 7.3 is inapplicable. Furthermore, Cavanaugh neither assigned error to the trial court's failure to award fees under that rule, nor raised the issue in its opening brief to this court. Accordingly, we do not consider this claim. See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996) ("Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration."); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (issue raised for first time in a reply brief does not warrant consideration).
We hold that Cavanaugh is the prevailing party entitled to an award of reasonable attorneys' fees on Cintas' breach of contract claim. We further hold that neither Cavanaugh nor Cintas is entitled to an award of attorneys' fees on Cavanaugh's counterclaim action. Accordingly, we reverse the attorneys' fee award to Cintas and remand this matter to the trial court for the calculation of an award of reasonable attorneys' fees to Cavanaugh, solely for those efforts reasonably expended in defending against Cintas' breach of contract action.
Whether a statutory provision authorizes an award of attorneys' fees is a legal question. Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 1053 (1993). "Questions of law are reviewed de novo." Hanson v. City of Snohomish, 121 Wn.2d 552, 556, 852 P.2d 295 (1993).
RCW 4.84.250 provides, in relevant part, that "in any action for damages where the amount pleaded by the prevailing party" is $10,000 or less, exclusive of costs, the prevailing party shall be allowed attorneys' fees in "a reasonable amount to be fixed by the court." (Emphasis added.) Where the statute applies, an award of attorneys' fees is mandatory. Kingston Lumber Supply Co. v. High Tech Dev., Inc., 52 Wn. App. 864, 865, 765 P.2d 27 (1988).
RCW 4.84.260 and .270 govern whether a party is the "prevailing" party for the purpose of awarding attorneys' fees pursuant to RCW 4.84.250. RCW 4.84.260 provides that the "party seeking relief" is the prevailing party if it recovers, "exclusive of costs," "as much or more than the amount offered in settlement" by that party. (Emphasis added.) RCW 4.84.270 provides that the "party resisting relief" is the prevailing party if the party seeking relief "recovers nothing, or if the recovery, exclusive of costs, is the same or less than the amount offered in settlement" by the "party resisting relief." (Emphasis added.)
1. Cintas' Breach of Contract Action
The trial court correctly determined that Cavanaugh is the prevailing party on Cintas' breach of contract claim pursuant to RCW 4.84.270 and is, therefore, entitled to an award of those attorneys' fees reasonably incurred in defending against that action. Pursuant to RCW 4.84.250 and .270, in an action for damages where the amount pleaded is $10,000 or less, and the party seeking relief recovers nothing, the party resisting relief is the prevailing party and is entitled to an award of reasonable attorneys' fees.
Here, Cintas was the party seeking relief in its action against Cavanaugh. The amount pleaded by Cintas was $1,830.92, less than the $10,000 statutory limit. Cintas recovered nothing. Thus, Cavanaugh is the prevailing party in that action, and Cavanaugh is entitled to an award of reasonable attorneys' fees.
2. Cavanaugh's Counterclaims
On appeal, each party asserts that it is entitled to an award of attorneys' fees arising out of Cavanaugh's counterclaim action. For each of the reasons set forth below, we conclude that neither party is entitled to such an award. Accordingly, the order awarding attorneys' fees to Cintas must be vacated.
a. Cavanaugh Never Made a Qualifying Settlement Offer
Cavanaugh contends that its $200 recovery on its counterclaim action against Cintas provides a basis for it to be entitled to an award of attorneys' fees in its favor. We disagree.
RCW 4.84.260 provides:
Attorneys' fees as costs in damage actions of ten thousand dollars or less — When plaintiff deemed prevailing party. The plaintiff, or party seeking relief, shall be deemed the prevailing party within the meaning of RCW 4.84.250 when the recovery, exclusive of costs, is as much as or more than the amount offered in settlement by the plaintiff, or party seeking relief, as set forth in RCW 4.84.280.
(Emphasis added.) RCW 4.84.280 provides:
Attorneys' fees as costs in damage actions of ten thousand dollars or less — Offers of settlement in determining. Offers of settlement shall be served on the adverse party in the manner prescribed by applicable court rules at least ten days prior to trial. Offers of settlement shall not be served until thirty days after the completion of the service and filing of the summons and complaint. Offers of settlement shall not be filed or communicated to the trier of the fact until after judgment, at which time a copy of said offer of settlement shall be filed for the purposes of determining attorneys' fees as set forth in RCW 4.84.250.
Cavanaugh did not file a copy of any settlement offer it made to Cintas with the trial court after judgment. The record contains no evidence of such an offer being made. The party seeking relief "does not qualify for a fee award [if] he never made a settlement offer." Woodruff v. Spence, 88 Wn. App. 565, 571, 945 P.2d 745 (1997) (citing RCW 4.84.260; In re Estate of Tosh, 83 Wn. App. 158, 165, 920 P.2d 1230 (1996). Thus, Cavanaugh does not qualify for an award of attorneys' fees on its action against Cintas.
There is a vague reference in the record to a $35,549.80 settlement offer made by Cavanaugh to Cintas. However, proof of this offer actually being made was never filed with the court, see RCW 4.84.280, and, obviously, the $200 actually recovered by Cavanaugh on its action is much less than $35,549.80.
b. Cintas Never Made a Qualifying Settlement Offer Cintas is also not entitled to an award of attorneys' fees because it never made a qualifying settlement offer. RCW 4.84.250 provides:
Attorneys' fees as costs in damage actions of ten thousand dollars or less — Allowed to prevailing party. Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for damages where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is [ten thousand] dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorneys' fees.
(Emphasis added.) RCW 4.84.270 provides:
Attorneys' fees as costs in damage actions of ten thousand dollars or less — When defendant deemed prevailing party. The defendant, or party resisting relief, shall be deemed the prevailing party within the meaning of RCW 4.84.250, if the plaintiff, or party seeking relief in an action for damages where the amount pleaded, exclusive of costs, is equal to or less than the maximum allowed under RCW 4.84.250, recovers nothing, or if the recovery, exclusive of costs, is the same or less than the amount offered in settlement by the defendant, or the party resisting relief, as set forth in RCW 4.84.280.
(Emphasis added.)
In the context of RCW 4.84.250 through RCW 4.84.300, "attorneys' fees" are defined as "costs." RCW 4.84.250. In determining whether a party is entitled to an award of attorneys' fees, the trial court, after entry of judgment, is required to compare the amount recovered, exclusive of costs, to the amount of the party's settlement offer. RCW 4.84.250, .270, .280. "Exclusive of costs," in this context, means "exclusive of attorneys' fees and other taxable costs."
Offers of settlement are not to be communicated to the court until judgment is entered. RCW 4.84.280. After judgment is entered, the trial court is to compare the amount recovered on the action, exclusive of costs, against the amount of the settlement offer. RCW 4.84.260, .270, .280. A settlement offer which purports to include payments for "attorneys' fees and costs," but does not separately denominate the amount being offered in settlement of the underlying action, exclusive of costs, cannot be utilized by the trial court to determine whether a party is a "prevailing party" within the meaning of the relevant statute. A settlement offer which is inclusive of "attorneys' fees and costs" cannot be accurately compared against a recovery which is exclusive of attorneys' fees and costs.
Here, Cintas made a settlement offer to Cavanaugh in the amount of "$5,500.00, inclusive of all damages, attorneys' fees and costs." CP 604. However, by including undenominated sums for "attorneys' fees and costs" in its settlement offer, Cintas made it impossible for the trial court to properly determine whether it was a "prevailing party" pursuant to RCW 4.84.270, and, thus, entitled to an award of costs (including attorneys' fees) pursuant to RCW 4.84.250.
Because Cintas did not make a proper qualifying offer, it cannot demonstrate that it was a 'prevailing party," and it is not entitled to an award of attorneys' fees pursuant to RCW 4.84.250 through RCW 4.84.300.
c. Cintas Forfeited its Claim for Attorneys' Fees
An additional reason exists for denying an award of attorneys' fees to Cintas. Prior to entry of judgment, Cintas communicated its settlement offer to the trial court. However, RCW 4.84.280 specifically provides that "[o]ffers of settlement shall not be filed or communicated to the trier of the fact until after judgment, at which time a copy of said offer of settlement shall be filed for the purposes of determining attorneys' fees as set forth in RCW 4.84.250." When a settlement offer is communicated to the trier of fact before judgment is entered, RCW 4.84.280 is violated and any claim for an award of attorneys' fees pursuant to RCW 4.84.250 is forfeited. Hanson v. Estell, 100 Wn. App. 281, 291, 997 P.2d 426 (2000). Thus, because Cintas communicated its settlement offer to the trial court prior to judgment, its standing to request an award of fees was lost.
d. Cavanaugh's Action Sought More than $10,000
Because the parties litigated this case in the belief that RCW 4.84.250 through RCW 4.84.300 applied to Cavanaugh's counterclaim action, we have addressed the merits of each party's claim of entitlement to an award of fees. However, an additional reason exists for denying either party an award of fees in this instance. Neither party is entitled to an award of attorneys' fees for efforts spent litigating Cavanaugh's counterclaim action because the amount pleaded by Cavanaugh in its action against Cintas was greater than the $10,000 limit of RCW 4.84.250.
RCW 4.84.250 provides for an award of attorneys' fees only in an action where the total amount pleaded is $10,000 or less, regardless of whether the amount pleaded on a particular claim is $10,000 or less. The language of RCW 4.84.250, .260 and .270 mandates this conclusion. RCW 4.84.250 plainly states that attorneys' fees are recoverable in an action where the amount pleaded is equal to or less than $10,000, not where the amount pleaded on a particular claim is equal to or less than that amount.
The prime objective in statutory construction is to effectuate legislative intent. Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 681, 80 P.3d 598 (2003). We begin by looking at the plain meaning of a statute. In discerning that meaning we take into account all of the text in the statute and in related statutes. Canawill, 150 Wn.2d at. 682; Bosteder v. City of Renton, 155 Wn.2d 18, 42, 117 P.3d 316 (2005).
Furthermore, the language of RCW 4.84.260 and .270 indicates that the legislature intended the relevant focus of the statutory scheme to be on the total action, rather than on a particular claim. Pursuant to those statutes, whether a party is prevailing for the purposes of RCW 4.84.250 depends on a comparison of the amount offered in settlement to the amount obtained in recovery. The relevant recovery amount considered is the amount recovered on the entire action, not the amount recovered on a particular claim. Thus, the total amount pleaded in an action must be $10,000 or less in order for RCW 4.84.250 to authorize an award of attorneys' fees.
In its action against Cintas, Cavanaugh pleaded as follows:
Cavanaugh Ace Hardware prays for the following relief:
. . .
3. That this court will award damages to Cavanaugh Cavanaugh in an amount to be proven at the time of trial, but less than Three Thousand Dollars ($3,000); and
4. That this court will make a discretionary award of damages in an amount not to exceed three times the actual damages sustained by Cavanaugh Cavanaugh, as provided in R.C.W. 19.86.090 and in no event to exceed Ten Thousand Dollars.
(Emphasis added.)
Both parties contend that the total amount pleaded by Cavanaugh in its action against Cintas was within the $10,000 statutory limit. In support of this contention, the parties argue that the prayer for damages in paragraph four necessarily refers merely to a trebling of those actual damages referred to in paragraph three of its prayer for relief, and was requested only as an alternative to, rather than in addition to, those actual damages. This argument is contrary to the law and contrary to the plain wording of the pleading itself.
Initially, Cavanaugh specifically stated in the pleading containing its prayer for relief that it was damaged by Cintas' alleged breach of contract in an amount up to $3,000. Accordingly, paragraph three of Cavanaugh's prayer for relief, seeking an award of up to $3,000, refers only to those actual damages sustained as a result of that alleged breach of contract, not to the total amount of actual damages sought pursuant to both claims.
Under the heading "Cavanaugh Ace Hardware's First Counterclaim for Breach of Contract," Cavanaugh alleged: "Cavanaugh Ace Hardware has been damaged in an amount less than Three Thousand Dollars by plaintiff's breach of said contract." (Emphasis added.)
Additionally, in paragraph four Cavanaugh plainly seeks an amount of damages pursuant to the CPA separate from, and in addition to, any award of damages for breach of contract pleaded in paragraph three. First, Cavanaugh contends in the pleading containing its prayer for relief that it was separately damaged by Cintas' alleged violation of the CPA, indicating its intent to seek actual damages specifically arising from the CPA violation. Second, in paragraph four of its prayer for relief Cavanaugh specifically references RCW 19.86.090 of the CPA, again indicating its intent to seek damages specifically arising from the CPA violation. RCW 19.86.090 provides:
Under the heading "Cavanaugh Ace Hardware's Second Counterclaim for Violation of Washington's Consumer Protection Act," Cavanaugh alleges that "Cavanaugh Ace Hardware suffered damages as a direct result of and caused by plaintiff's unfair and deceptive conduct." (Emphasis added.)
Any person who is injured in his or her business or property by a violation [of the Consumer Protection Act] . . . may bring a civil action in the superior court . . . to recover the actual damages sustained by him or her, . . . and the court may in it its discretion, increase the award of damages to an amount not to exceed three times the actual damages sustained.
(Emphasis added.) Pursuant to the language of this statute, actual damages that result from a violation of the CPA are recoverable in and of themselves, regardless of whether an ancillary breach of contract claim is either asserted or ultimately successful.
Moreover, it is those actual damages incurred as a result of a CPA violation that may be trebled for the purpose of making an award pursuant to RCW 19.86.090, not damages incurred as a result of any other asserted claim. Mason v. Mortgage Am., Inc., 114 Wn.2d 842, 855, 792 P.2d 142 (1990). Thus, despite the parties' contention to the contrary, paragraph four of Cavanaugh's prayer for relief seeking treble damages pursuant to the CPA may only give rise to a trebling of the actual damages incurred as a result of the alleged CPA violation itself. It may not give rise to a trebling of those damages pleaded in paragraph three of Cavanaugh's prayer for relief for the alleged breach of contract.
Finally, a plain reading of the pleading demonstrates that Cavanaugh was seeking breach of contract damages of up to $3,000 and CPA damages of up to $10,000. The prayers for relief were asserted in the aggregate, not in the alternative.
The importance of properly stating a prayer for relief has other applications as well. For instance, had Cintas for some reason been determined to be in default and had the trial court awarded Cavanaugh a default judgment in the principal amount of $13,000 based on this pleading, we would not rule that entry of such a judgment violated Cintas' rights. Cf. CR 54(c) ("A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment."); Allison v. Boondock's, Sundecker's Greenthumb's, Inc., 36 Wn. App. 280, 282, 673 P.2d 634 (1983) (default judgment in excess of amount requested in the complaint is void to the extent of the difference).
Accordingly, in its action against Cintas, Cavanaugh pleaded for an award of up to $3,000 in damages incurred pursuant to the alleged breach of contract and, in addition, an award of treble the amount of actual damages incurred pursuant to the alleged CPA violation, up to $10,000. Thus, the total amount pleaded by Cavanaugh was greater than the $10,000 limit of RCW 4.84.250.
Carefully reading Cavanaugh's pleading is not a circumstance in which we elevate form over substance. "In Washington, attorney fees may be awarded only when authorized by a private agreement, a statute, or a recognized ground of equity." Labriola v. Pollard Group, Inc., 152 Wn.2d 828, 839, 100 P.2d 791 (2004). As the attorneys' fees requests were herein made pursuant to a statute, compliance with that statute's requirements necessarily follows. The legislature chose to restrict the applicability of RCW 4.84.250 to those actions wherein the total amount pleaded was $10,000 or less. Thus, not pleading a prayer for relief of greater than $10,000 is a necessary precondition to the applicability of the statute. This is especially important in light of the mandatory application of RCW 4.84.250 to properly-pleaded actions, Kingston Lumber Supply, 52 Wn. App. at 865, the fact that a party resisting such an action is entitled to an award of attorneys' fees if the party asserting the claim recovers nothing, even in the absence of a settlement offer, RCW 4.84.270, and the absence of a requirement that RCW 4.84.250 be specifically pleaded in order to invoke its applicability. Estate of Tosh, 83 Wn. App. at 165 (a pleading that prays for damages within the amount limit of RCW 4.84.250 provides sufficient notice of the claim to support an award of attorneys' fees under the statute). Given that pleading a request for judgment in the amount of $10,000 or less is sufficient to put all other parties to the litigation on notice that a request for an award of attorneys' fees may be made, even where RCW 4.84.250 is not specifically pleaded, it is reasonable to require that such a prayer for relief be clearly stated by the party seeking relief.
In summary, neither party is entitled to an award of attorneys' fees arising out of the litigation of Cavanaugh's counterclaims. The attorneys' fee award to Cintas must be vacated.
3. Remand
As previously discussed, Cavanaugh is entitled to an award of attorneys' fees solely for those efforts reasonably expended in defending against Cintas' breach of contract action. Accordingly, remand is required for the trial court to make such an award. Despite Cavanaugh's contention to the contrary, however, the trial court is not obligated to award Cavanaugh the total amount of fees requested or incurred pursuant to that claim. Any request for fees, and award thereof, must be reasonable under the circumstances of this case.
A trial court is given broad discretion in determining the reasonableness of a fee award. Ethridge v. Hwang, 105 Wn. App. 447, 460, 20 P.3d 958 (2001). As a starting point, a trial court properly determines a reasonable fee by calculating the market value of the attorney's services. This lodestar figure is calculated by multiplying the hours reasonably expended in the litigation by the reasonable rate of compensation. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 593, 675 P.2d 193 (1983). Next, the lodestar figure may be adjusted up or down to reflect factors that warrant adjustment and that have not already been taken into account in computing the lodestar figure. Bowers, 100 Wn.2d at 593-94.
The relationship of the amount of fees requested to the amount of damages in dispute is a vital consideration when assessing the reasonableness of a fee request. This is particularly true where a fee award "grossly exceeds" the amount in controversy. Public Utils. Dist. No. 1 v. Crea, 88 Wn. App. 390, 397, 945 P.2d 722 (1997) (citing Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 150, 859 P.2d 1210 (1993); see also Rule of Professional Conduct 1.5(a) (amount involved in matter on which legal services rendered is relevant to determination of fee's reasonableness).
In the trial court, Cavanaugh's attorneys charged over $70,000 in fees and costs to litigate a small contractual dispute. On remand, Cavanaugh bears the burden of (1) segregating those fees incurred in defending against Cintas' breach of contract action from those fees otherwise incurred, and (2) justifying the reasonableness of any asserted fee amount, especially if such amount is disproportionately larger than the $1,830.92 sought by Cintas on its breach of contract claim.
We note, as well, that the trial court failed to issue findings of fact and conclusions of law detailing how its attorneys' fee award to Cintas was determined. Appellate courts exercise a supervisory role to ensure that the trial court's discretion in making an attorneys' fee award is properly exercised on articulable grounds. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). Therefore, such an award must be supported by findings of fact and conclusions of law sufficient to establish an adequate record for review. Mahler, 135 Wn.2d at 435. On remand, the trial court should enter findings of fact and conclusions of law by which this court may review the reasonableness of the attorneys' fees award to Cavanaugh, should the need arise.
B. Consumer Protection Act Claim
Cavanaugh next contends that the trial court erred by finding that Cintas' representations to Cavanaugh regarding the contract's 60-month term did not constitute an unfair or deceptive act or practice in violation of the CPA. We disagree.
As a preliminary matter, Cintas contends that this court should consider all of the findings of fact made by the trial court regarding this issue to be verities on appeal, arguing that Cavanaugh failed to assign error to specific findings of fact as required by RAP 10.3(g). Although Cavanaugh did not comply with the requirements of that rule, the findings Cavanaugh asserts to be in error are clear from the thrust of its argument in its opening brief, specifically referred to in its reply brief, and easy to locate and identify in the record before this court. Accordingly, we choose to reach the merits of Cavanaugh's arguments. See Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 710, 592 P.2d 631 (1979) ("[T]echnical violation of the rules [of appellate procedure] will not ordinarily bar appellate review, where justice is to be served by such review.").
Where the trial court has weighed the evidence, our review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether those findings of fact support the trial court's conclusions of law. Ridgeview Props. v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982). Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the declared premise. Ridgeview Props., 96 Wn.2d at 719. If that standard is satisfied, we will not substitute our judgment for that of the trial court even though we might have resolved disputed facts differently. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003). There is a presumption in favor of the trial court's findings, and the party claiming error has the burden of proving that a finding of fact is not supported by substantial evidence. Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990).
Moreover, a determination regarding the truth of competing evidence is within the purview of the trial court, Du Pont v. Dep't of Labor Indus., 46 Wn. App. 471, 479, 730 P.2d 1345 (1986), as is a determination regarding the credibility of a witness' testimony. Garofalo v. Commellini, 169 Wash. 704, 705, 13 P.2d 497 (1932). Accordingly, such determinations will not be disturbed on appeal. Du Pont, 46 Wn. App. at 479; Garofalo, 169 Wash. at 705.
An unfair or deceptive act or practice is an essential element of a successful claim under the CPA. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). An act or practice is unfair or deceptive if the conduct complained of has the capacity to deceive a substantial portion of the public. Robinson v. Avis Rent A Car Sys., Inc., 106 Wn. App. 104, 115, 22 P.3d 818 (2001).
The CPA provides: "Unfair methods of competition and unfair or deceptive acts or practice in the conduct of any trade or commerce are hereby declared unlawful." RCW 19.86.020. To prevail in a private action under the CPA, a plaintiff must establish five distinct elements: (1) an unfair or deceptive act or practice; (2) occurring in trade or practice; (3) affecting the public interest; (4) injuring the plaintiff's business or property; and (5) a causal link between the unfair or deceptive acts and the injury suffered by plaintiff. Hangman Ridge Training Stables, 105 Wn.2d at 780.
Cavanaugh challenges the following findings of fact relevant to this issue:
6. The sixty month provision was not hidden in the agreement, and it was specifically discussed by Cavanaugh and Joswick.
7. Cavanaugh testified that Joswick said Cavanaughs can get out of the contract anytime it is not satisfied with Cintas' service.
. . .
9. Cavanaugh was well aware when he was reviewing the contract, before he signed it, that it did contain a 60-month provision. The 60-month provision was not hidden in the contract and it was specifically talked about between Mr. Cavanaugh and Mr. Joswick. There was nothing hidden in the Cintas contract and Mr. Cavanaugh at least understood from his conversation with Mr. Joswick that he could cancel the contract anytime the service was not of the highest quality. That is essentially what is stated in the contract.
These findings of fact are supported by substantial evidence in the record. Mr. Cavanaugh testified that he and Joswick specifically discussed the contract's 60-month term. Mr. Cavanaugh further testified that he could not remember the exact words spoken by Joswick. Finally, Mr. Cavanaugh acknowledged, in response to questioning by the trial court, that Joswick may have said that Cavanaugh could get out of the contract if it was not satisfied with Cintas' service. This testimony was accepted as credible by the trial court.
In turn, the trial court's findings of fact support the conclusion that Cintas did not commit an unfair or deceptive act or practice in violation of the CPA. Under the terms of the contract's quality guarantee, Cavanaugh was entitled to terminate the contract if it was dissatisfied with Cintas' service and if it gave Cintas a reasonable amount of time to remedy the problem. The testimony found credible by the trial court indicates that Joswick's statements to Cavanaugh were consistent with that contractual provision and were not, therefore, unfair or deceptive.
We affirm the trial court's determination that Cintas' representations to Cavanaugh did not constitute an unfair or deceptive act or practice in violation of the CPA.
C. Discovery Litigation
Cavanaugh contends that the trial court erred by not awarding it substantial attorneys' fees from and monetary sanctions against Cintas for alleged discovery abuse. We review a trial court's rulings regarding discovery disputes for an abuse of discretion. Henderson v. Tyrrell, 80 Wn. App. 592, 604, 910 P.2d 522 (1996). A trial court abuses its discretion when its decision or order is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. Green v. Normandy Park Riviera Section Community Club, No. 57230-0-I, slip op. at 33 (Wash.Ct.App. Feb. 5, 2007). As we have previously noted, "the central idea of discretion is choice: the court has discretion in the sense that there are no 'officially wrong' answers to the questions posed." Coggle v. Snow, 56 Wn. App. 499, 505, 784 P.2d 554 (1990).
Cavanaugh's briefing on this issue is entirely unpersuasive and its citations to authority are inapposite. In its briefing in opposition, Cintas correctly notes that the trial court narrowed the scope of Cavanaugh's discovery request at Cintas' urgings. The trial court did not abuse its discretion by refusing to grant to Cavanaugh the relief it sought.
D. Attorneys' Fees on Appeal
Finally, Cavanaugh requests an award of attorneys' fees on appeal pursuant to RAP 18.1. In a case brought pursuant to the requirements of RCW 4.84.250 through RCW 4.84.300, the prevailing party on appeal is entitled to an award of reasonable attorneys' fees for the appeal. RCW 4.84.290.
Cavanaugh prevailed solely regarding its contention that it is entitled to an award of some amount of attorneys' fees for its efforts in defending against Cintas' breach of contract claim. Cavanaugh did not prevail on any other substantive issue raised before this court. While we hold that the trial court erred in awarding attorneys' fees to Cintas, we do so on a ground other than that urged by Cavanaugh.
Cavanaugh may submit a request to our commissioner for an award of attorneys' fees on appeal, solely for those fees reasonably necessary to preserve its right to fees incurred in the trial court in defending against Cintas' breach of contract action. However, any fees incurred on appeal resulting from efforts expended on unsuccessful claims or arguments will not be subject to award.
Affirmed in part, reversed in part, and remanded.