Opinion
No. 42457-6-II C/w No. 42607-2-II
02-12-2013
JERRY MULDER and SALLY MULDER, and their marital community, Respondent, v. CABINET DISTRIBUTORS, INC., a Washington corporation; and CBIC, a Washington corporation, Appellants.
UNPUBLISHED OPINION
Bridgewater, J.P.T. — Cabinet Distributors Inc. (CDI) appeals the trial court's (1) grant of a new trial and (2) refusal to limit the issues on retrial. We reverse because the jury's verdicts were not irreconcilable. The jury found damages for each party. We remand for entry of judgment in conformity with the jury's verdict, finding actual damages for each party, and we remand for the trial court to consider whether any attorney fee award is proper.
Judge C. C. Bridgewater is serving as a judge pro tempore of the Court of Appeals, Division II, pursuant to CAR 21(c).
FACTS
In 2004, CDI contracted with Jerry and Sally Mulder to supply and install new premium grade cabinets and countertops in the Mulders' home. CDI did not complete the installation. In 2008, the Mulders brought a civil action against CDI, claiming: (1) breach of contract, by failing to supply and install cabinets and countertops, and (2) fraud, by improperly installing used, defective, and mildewed cabinets. The Mulders requested $83,542.00 in damages for the breach of contract. CDI counterclaimed that the Mulders (1) did not timely inform them about their dissatisfaction and (2) refused to pay for ordered materials and owed $1,608.94. The parties proceeded to trial.
At the close of trial, the jury rendered its decision by way of a special verdict form. The jury found that CDI did not commit fraud, that CDI breached its contract by failing to install the cabinets properly, and that the Mulders interfered with CDI's performance. The jury found that the Mulders' actual damages were $7,600 and that CDI's actual damages were $2,400.
The trial court vacated the jury verdict and granted a new trial because the verdicts were inconsistent. CDI appeals.
ANALYSIS
Neither a trial court nor an appellate court may substitute its judgment for that which is within the jury's province. Blue Chelan, Inc. v. Dep't of Labor & Indus., 101 Wn.2d 512, 515, 681 P.2d 233 (1984). We must try to reconcile the jury's answers to special interrogatories. Myhres v. McDougall, 42 Wn. App. 276, 278, 711 P.2d 1037 (1985).
We hold that the jury's verdicts are not irreconcilable. Two theories of breach were presented to the jury and it awarded damages to each party. Although the jury found both waiver and interference by the Mulders, the jury obviously found that the waiver and interference were partial and excused CDI from only part of its obligations under the contract while leaving the Mulders obligated to pay part of CDI's remaining bill. Therefore, despite the jury's finding that CDI did not complete installation, the verdicts are nevertheless not inconsistent and we can harmonize them because the Mulders may have only partially interfered with or partially waived performance.
We reverse the trial court and remand for entry of judgment in conformity with the jury's verdicts that the Mulders' actual damages were $7,600 and that CDI's actual damages were $2,400. We also remand for the court to consider whether either party deserves an attorney fee award for the trial. Although CDI prevails in this appeal, we do not award appellate attorney fees because CDI addressed attorney fees only as connected to the trial and fails to supply citation or authority for appellate attorney fees. Austin v. U.S. Bank of Wash., 73 Wn. App. 293, 313, 869 P.2d 404 (1994).
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 in accordance with RCW 2.06.040, it is so ordered.
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Bridgewater, J.P.T.
We concur: ________
Penoyar, J.
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Johanson, A.C.J.