Citations and pin cites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BETTY FRYE, an individual; and 

TODD DUTY, an individual,

Appellants,

v.

JDH INVESTMENT GROUP LLC, a

Nevada LLC; THOMAS J. DOWNIE,

individually and on behalf of his 

marital community; 

Respondents,

BLAKE HADDOCK, individually and 

on behalf of his marital community; 

and RANDALL JACKSON, individually 

and on behalf of his marital

community,

Defendants.

No. 79318-7-I

DIVISION ONE

UNPUBLISHED OPINION

CHUN, J. — This case regards a dispute over promissory notes as well as 

tort and contract claims concerning real estate. Betty Frye and Todd Duty 1 sued

JDH Investment Group, LLC, and Thomas Downie (respondents). Frye claimed

fraud, obtaining money or property under false pretenses, elder abuse, 

intentional infliction of emotional distress, legal malpractice, civil conspiracy, 

violations of the Washington Consumer Protection Act, negligent 

 

1 While both Frye and Duty sued the respondents, Frye appears to have been the 

primary party to the suit and transaction. Accordingly, below, we refer to the appellants

as “Frye.”
No. 79318-7-I/2

2

misrepresentation, and breach of contract. Frye also filed a lis pendens. JDH

and Downie counterclaimed for tortious interference with a business expectancy.

JDH also counterclaimed for breach of contract, breach of the implied duty of 

good faith, and slander of title, and requested damages and release of the lis 

pendens. 

After a bench trial, the trial court dismissed Frye’s claims and ruled in 

favor of JDH and Downie on their counterclaims. Frye appeals. For the reasons 

discussed herein, we affirm.

I. BACKGROUND

A. Facts

Frye sold undeveloped property in Auburn (Auburn property) to JDH for 

$3 million on June 14, 2013. As a part of the sale, Frye received $2 million in 

cash and two promissory notes (Auburn notes)—each for $500,000 and secured 

by the Auburn property. One of the Auburn notes would mature on December 

14, 2013, and the other would mature on June 14, 2014. JDH is the obligor on 

the Auburn notes. The Auburn notes state that they bear five percent interest per 

annum “until paid,” with six percent late charges. As a part of the transaction, 

one of JDH’s members, Sue Jones, personally extended the $2 million that went 

to Frye, treating the funds as a loan to JDH with the Auburn property as 

collateral.

Also on June 14, 2013, Frye loaned $1.55 million to Northshore 

Montessori, Inc., a daycare business run by Downie, who was also a founding 
No. 79318-7-I/3

3

member of JDH.2 Downie’s attorney, Randall Jackson, prepared the promissory 

note from the daycare (Daycare note).

3

 Jackson claims that neither Frye 

requested nor Downie offered a personal guarantee. After Downie signed the 

note as Northshore Montessori’s president, but before delivering it to Frye, 

Jackson noticed language stating that Downie personally guarantees the 

Daycare note. Jackson crossed out the language and then gave the note to 

Frye. Jackson claimed that he used a template to draft the Daycare note and 

that he mistakenly included personal guarantee language that he used in a prior 

transaction.

Between October and November of 2014, Frye also personally loaned 

$85,000 to Downie through two notes.

On February 8, 2017, JDH received preliminary plat approval for the 

Auburn property. By this time, the Auburn notes were several years overdue. 

Downie, by then the sole member of JDH, attempted to refinance the loans on 

the property with Pyatt Broadmark Management, LLC. Pyatt placed $5.8 million 

in escrow in anticipation of the refinancing. As part of the closing process, the 

escrow company needed a payoff quote from Frye indicating the amount due 

under the Auburn notes and a release of her deeds of trust. In May 2017, 

Downie and Jackson approached Frye on behalf of JDH and tendered $1.2 

million—$500,000 for each note, plus five percent interest—in exchange for her 

release of the Auburn notes. But Frye argued the 12 percent statutory interest 

 

2 Downie was once married to Frye’s daughter. At the time of the transaction, the 

couple were divorced but had reconciled.

3 Jackson also acted as JDH’s manager.
No. 79318-7-I/4

4

rate applied to the Auburn notes since they were post-maturity, and demanded 

$1.5 million. Frye increased her demand to $1.6 million, then $1.7 million, stating 

she could charge whatever she wanted, since the refinancing depended on her 

releasing the Auburn notes. JDH, bewildered by Frye’s demands, refused to pay 

more than $1.2 million. When it became apparent to Pyatt that the parties had 

deadlocked, it withdrew its refinancing offer.

On June 14, 2017, JDH received a letter of intent to purchase the Auburn 

property from Toll Brothers, who proposed a purchase price of $7.8 million. 

B. Procedural History

On August 23, 2017, Frye filed a lis pendens referencing the Auburn 

property and an associated complaint. 

The next day, Frye sued JDH and Downie.4 Frye’s suit claimed: against 

Downie, elder abuse, intentional infliction of emotional distress, and breach of 

contract for nonpayment on the personal loans and the Daycare note; and 

against all defendants, civil conspiracy, fraud, false pretenses, violations of the 

Washington Consumer Protection Act, and negligent misrepresentation. Frye 

pleaded for damages, injunctive relief to prevent sale of the Auburn property or 

use of it as collateral, rescission of the deeds and return of the property, interest, 

and attorney fees.

JDH and Downie counterclaimed for tortious interference with a business 

 

4 Frye also named Blake Haddock, an original member of JDH who helped 

facilitate the sale of the Auburn property, as a defendant. Frye additionally named 

Jackson. The trial court dismissed the claims against Haddock and Jackson; Frye does 

not assign error to such dismissal.
No. 79318-7-I/5

5

expectancy; JDH counterclaimed for breach of contract, breach of the implied 

duty of good faith, slander of title, unjust enrichment, and also requested 

damages, a declaratory judgment on the amounts owed on the Auburn notes, 

and release of the lis pendens.

The matter proceeded to a bench trial. During closing argument, Downie 

conceded that he owed $85,000 on the personal notes to Frye, plus 12 percent 

interest.

On November 5, 2018, the trial court dismissed Frye’s claims and ruled in 

favor of JDH and Downie on their tortious interference counterclaim, and in favor 

of JDH on their breach of contract, breach of implied duty of good faith, and 

slander of title counterclaims. The trial court also declared that JDH owed $1.2 

million on the Auburn notes, since they bore five percent interest even after 

maturity and the late fees provision on the notes was unenforceable. The trial 

court also found that Downie did not personally guarantee the Daycare note, and 

since Northshore Montessori was not a party to the action, dismissed Frye’s 

claim to recover under the Daycare note. Finally, the trial court awarded JDH 

and Downie attorney fees. After subtracting the damages from the counterclaims 

and attorney fees from the amounts owed on the Auburn notes, the trial court 

concluded that JDH owed $646,908 to Frye. After subtracting damages and 

attorney fees from the amounts owed on his personal notes to Frye, the trial 

court concluded that Downie owed Frye $12,801. Frye appeals.
No. 79318-7-I/6

6

II. ANALYSIS

When reviewing a trial court’s findings of fact and conclusions of law, we 

limit review to whether substantial evidence supports the findings of fact and 

whether the findings of fact support the conclusions of law. Douglas v. Visser, 

173 Wn. App. 823, 829, 295 P.3d 800 (2013). “Substantial evidence is evidence 

sufficient to persuade a fair-minded, rational person of the declared premise.” 

Douglas, 173 Wn. App. at 829. Additionally, we defer to a trial court’s 

determinations of the weight and credibility of the evidence. Mueller v. Wells, 

185 Wn.2d 1, 9, 367 P.3d 580 (2016).

RAP 10.3(g) requires appellants to make specific assignments of error to 

the trial court’s findings of fact, with reference to the finding by number. We “will 

only review a claimed error which is included in an assignment of error or clearly 

disclosed in the associated issue pertaining thereto.” RAP 10.3(g). “RAP 10.3 

requires an appellant to present argument to the reviewing court as to why 

specific findings of fact are in error and to support those arguments with citation 

to relevant portions of the record.” In re Disciplinary Proceeding Against Burtch, 

162 Wn.2d 873, 895, 175 P.3d 1070 (2008). Where an appellant “fail[s] to 

pinpoint any argument as to why specific findings of fact are not supported by 

substantial evidence . . . [,] [we need not] unearth arguments from the record for 

the benefit of an appellant.” Burtch, 162 Wn.2d at 896. “Assignments of error 

not argued or further referred to in a brief are treated as abandoned.” In re 

Estate of Wimberley, 186 Wn. App. 475, 503, 349 P.3d 11 (2015). Unchallenged 

findings of fact are verities on appeal. Mueller, 185 Wn.2d at 9. 
No. 79318-7-I/7

7

Frye assigns error specifically to six of the trial court’s findings of fact—69, 

and 76 through 80—and three of its conclusions of law—66, 67, and 85. Frye 

assigns error generally to the remaining findings of fact and conclusions of law in 

her assignments of error. Throughout the argument section of her brief, Frye 

makes additional assignments of error to the trial court’s conclusions of law and 

findings of fact. We treat those findings of fact not specifically identified by Frye 

in her assignment of error or argument section as verities.

A. Amounts Owed on Notes to Frye

Frye argues that the trial court improperly calculated the amounts owed on 

the Auburn notes. First, she asserts that the trial court mistakenly concluded that 

a five percent interest rate applies to the matured notes, instead of the statutory 

twelve percent rate; she contends the parties did not agree on a post-maturity 

interest rate. Second, she argues that the trial court erroneously concluded that

the six percent late charges for missed balloon payments in the Auburn notes 

constitute an unenforceable penalty. Third, she argues that, if a 12 percent 

interest rate applied to the notes post-maturity or late charges applied, then the 

trial court improperly determined that JDH’s $1.2 million tender stopped interest 

from accruing on the Auburn notes. JDH disagrees. We conclude that a five 

percent interest rate applied to the Auburn notes post-maturity, that the six 

percent late charges constituted unenforceable penalties, and that the $1.2 

million tender stopped interest from accruing on the notes.
No. 79318-7-I/8

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1. Post-Maturity Interest Rate

The trial court concluded that, because the Auburn notes state that they 

bear five percent interest “until paid,” and nothing in RCW 19.52.010 suggests 

that parties must agree to a separate post-maturity rate, the Auburn notes bore 

five percent interest even after default. RCW 19.52.010(1) provides a statutory 

interest rate of 12 percent. Frye argues that this rate applies to the Auburn 

notes, because the fact that the Auburn notes state that they bear five percent 

interest “until paid” means that they bear five percent interest until maturity, and 

then the statutory rate thereafter. 

We review de novo questions of contract interpretation that do not depend 

on extrinsic evidence and statutory interpretation. 4518 S. 256th, LLC v. Karen 

L. Gibbon, P.S., 195 Wn. App. 423, 435, 382 P.3d 1 (2016). “The purpose of 

contract interpretation is to determine the parties’ intent.” Roats v. Blakely Island 

Maint. Comm’n, Inc., 169 Wn. App. 263, 274, 279 P.3d 943 (2012). Washington 

courts focus on the agreement’s objective manifestations to ascertain the parties’ 

intent. Martin v. Smith, 192 Wn. App. 527, 532, 368 P.3d 227 (2016). Martin

explains this approach further:

We impute an intention corresponding to the reasonable meaning of 

the words used. The parties’ subjective intent is irrelevant if we can 

ascertain their intent from the words in the agreement. 

We give words their ordinary, usual, and popular meaning unless 

the entirety of the agreement clearly demonstrates a contrary intent. 

We interpret only what was written in the agreement, not what the 

parties intended to write. Additionally, a contract provision is not 

ambiguous merely because the parties to the contract suggest 

opposing meanings. We will not read ambiguity into a contract where 

it can reasonably be avoided.
No. 79318-7-I/9

9

192 Wn. App. at 532–33 (internal quotation marks and citations omitted). In light 

of these principles, we conclude that the Auburn notes’ “until paid” language 

means that they bore five percent interest even after maturity.

RCW 19.52.010 provides that “every loan or forbearance of money, 

goods, or thing in action shall bear interest at the rate of twelve percent per 

annum where no different rate is agreed to in writing between the parties.” 

“When a party beaches an obligation to pay a liquidated debt, a new forbearance 

is created.” TJ Landco, LLC v. Harley C. Douglass, Inc., 186 Wn. App. 249, 256, 

346 P.3d 777 (2015). 

Frye argues that JDH’s failure to pay the Auburn notes on time constituted 

a forbearance, and that after the forbearance, the statutory interest rate applies.

Frye cites a decision from the federal bankruptcy court in the Western District of 

Pennsylvania in support of her argument that the “until paid” rate applies up to 

the maturity of the notes, and then the statutory rate applies. See In re Dilts, 143 

B.R. 644, 646 (Bankr. W.D. Pa. 1992) (“In the absence of an express agreement 

to the contrary, the legal rate of interest applies from the date of maturity 

irrespective of the rate prescribed in the instrument for the period prior to 

maturity.”). Citing Palmer v. Labree, 23 Wn. 409, 420–21, 63 P. 216 (1900), 

which in turn cites a decision from 1842—Ludwick v. Huntzinger, 1842 WL 4909 

(Pa. 1842)—Frye says that Washington has “long aligned itself with 

Pennsylvania law on this point.” But we decline this invitation to follow nonWashington authority.
No. 79318-7-I/10

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Over a century ago, in Bank v. Doherty—which remains good law—our 

Supreme Court interpreted a note that provided an interest rate of two percent 

and listed no rate after maturity. 42 Wn. 317, 328, 84 P. 872 (1906). The 

Supreme Court declared that the statutory rate applied after maturity, and said 

that “[i]f the parties had intended the note in question to draw interest at the rate 

of [two percent] per month after maturity, it would have been an easy matter to 

have placed such an intention beyond doubt by simply adding the words ‘until 

paid’ after the words [two percent] per month.” Bank, 42 Wn. at 330 (emphasis 

added). 

Around five years ago, in TJ Landco, the Court of Appeals favorably cited 

Bank for the proposition that “[o]ur cases have long distinguished between 

agreements to pay interest at maturity and agreements to pay interest ‘until 

paid.’” 186 Wn. App. at 258. TJ Landco interprets the terms “until paid” in 

RCW 4.56.110—a statute governing post-judgment interest—and in the parties’ 

contracts. 186 Wn. App. at 258. Because the parties’ contract modification did 

not include “until paid” language, the court determined that the statutory interest 

rate applied after default. 186 Wn. App. at 260. RCW 4.56.110 specifically 

states that “[j]udgments founded on written contracts, providing for the payment 

of interest until paid at a specified rate, shall bear interest at the rate specified in 

the contracts.” (Emphasis added.) RCW 19.52.010 does not include similar 

“until paid” language. However, it is telling that TJ Landco cites Bank—not a 

case about post-judgment interest—for an interpretation of the “until paid” 

language, and states that “until paid” is a term of art. TJ Landco, 186 Wn. App. 
No. 79318-7-I/11

11

at 258. Thus, the trial court properly concluded that parties intended “until paid” 

in the note to mean that the five percent rate applies even after default.

Frye also points to certain text messages she sent Downie, wherein she 

stated a 12 percent interest rate applies after default, to support an argument that 

the parties intended for the statutory rate to apply after default. But a court may 

not consider evidence of a party’s unilateral or subjective intent as to the 

meaning of a contract word or term. Pitell v. King County Pub. Hosp. Dist. No. 2, 

4 Wn. App. 2d 764, 774, 423 P.3d 900 (2018).

Frye also invokes the last antecedent rule. The Auburn notes state that 

“[JDH] promises to pay to [Frye] or order, at [address] the sum of [$500,000], with 

interest from June 14, 2013 until paid, at the rate of 5.00% per cent, per annum, 

shall be due and payable on [due date].” Frye argues that “a comma before the 

qualifying phrase ‘shall be due and payable on [due date]’ means the parties 

intended this maturity date qualifying phrase to apply to all prior antecedents 

including the antecedent with the ‘until paid’ phrase.” In effect, she argues that 

the five percent interest rate only applies until the due date. Under the last 

antecedent rule, “the presence of a comma before the qualifying phrase is 

evidence the qualifier is intended to apply to all antecedents instead of only the 

immediately preceding one.” City of Spokane v. County of Spokane, 158 Wn.2d 

661, 673, 146 P.3d 893 (2006). As the provision in question defies meaningful 

application of the last antecedent rule, Frye’s argument fails.

We conclude that the trial court properly determined the Auburn notes 

bore five percent interest even after maturity. 
No. 79318-7-I/12

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2. Late Charge Enforceability

Frye argues that the trial court erred in concluding that the six percent late 

charge on the Auburn notes constitute unenforceable penalties. The 

respondents disagree. We conclude that the trial court did not err on this issue.

The Auburn notes each provide, “In the event any payment is not paid 

within 10 days of the due date, [JDH] shall pay to [Frye] a LATE CHARGE of 

6.00% of the payment due in addition to each payment due and unpaid.” The 

trial court treated these late charge provisions as liquidated damages clauses, 

and Frye does not argue the trial court improperly did so.

Washington courts will typically uphold a liquidated damages provision 

unless it constitutes a penalty or is otherwise unlawful. Wallace Real Estate Inv., 

Inc. v. Groves, 124 Wn.2d 881, 886, 881 P.2d 1010 (1994). The party asserting 

a right to liquidated damages need not prove actual damages. Wallace, 124 

Wn.2d at 892. However, the “amount fixed [as liquidated damages] must be a 

reasonable forecast of just compensation for the harm that is caused by the 

breach.” Walter Implement, Inc., v. Focht, 107 Wn.2d 553, 559, 730 P.2d 1340 

(1987). “[L]iquidated damages agreements fairly and understandingly entered 

into by experienced, equal parties with a view to just compensation for the 

anticipated loss should be enforced.” Wallace, 124 Wn.2d at 886 (emphasis 

added). “Determination of whether the test is met depends on the facts and 

circumstances of each case.” Walter Implement, 107 Wn.2d at 559. 

Frye argues that JDH is a sophisticated party that has entered into other 

contracts with high interest late fee provisions in support of her argument that the 
No. 79318-7-I/13

13

six percent late charges are reasonable. But even where the parties to such an 

agreement are sophisticated, we must nevertheless analyze whether the 

liquidated sum acts as a reasonable pre-estimate of loss. See Wallace, 124 

Wn.2d at 894–97 (conducting such a review of reasonability even where the 

parties were sophisticated). The late charge provisions do not purport to 

compensate Frye for the harm from late payment. No evidence in the record 

suggests that the parties intended that the late charge provisions estimate Frye’s 

losses in the event of late payment. The late charge provisions thus constitute 

unenforceable penalties.

Frye argues in her reply that the late charges estimate her collection costs 

and lost opportunity from larger profits. Typically, we will not consider arguments 

raised for the first time in a reply brief, since the respondent has no meaningful

opportunity to respond. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 

801, 809, 828 P.2d 549 (1992). Additionally, her argument amounts to a posthoc rationalization for enforcing the late charge provision; before and during trial, 

Frye indicated that she understood the late charge provision not as a late charge 

provision, but as an adjustment of the interest rate after default. “Courts will look 

to the intention of the parties to make an accurate assessment of the clause’s 

purpose.” Walter Implement, 107 Wn.2d at 559. Frye’s prior purported 

understanding of the late charge clause does not accord with the proposition that 

the parties intended it to be a reasonable forecast of her losses in the event of 

late payment. The trial court properly determined the late charge provisions on 

the Auburn notes constitute unenforceable penalties.
No. 79318-7-I/14

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3. Effect of Tender on Accrual of Interest

“[T]ender of the amount due must be unconditional in order to stop interest 

from running. Tender of less than the full amount due under the contract 

constitutes a conditional tender.” Jones v. Best, 134 Wn.2d 232, 243, 950 P.2d 1 

(1998). Thus, if JDH owed more than its $1.2 million tender, it was conditional, 

and would not have stopped interest from accruing on the notes. Since we 

determine the Auburn notes continued to accrue only five percent interest after 

maturity, and the late charges constituted unenforceable penalties, the $1.2 

million tender was for the correct amount due. Thus, the trial court properly 

determined that the tender was not conditional and it stopped interest from 

accruing on the notes. See RCW 62A.3-603(c) (“If tender of payment of an 

amount due on an instrument is made . . . the obligation of the obligor to pay 

interest after the due date on the amount tendered is discharged.”).

B. Downie Guarantee of the Daycare Note

Frye argues the trial court erred in finding that Downie did not personally 

guarantee the Daycare note. The respondents argue the trial court’s finding on 

this subject is supported by substantial evidence. We agree with the 

respondents.

“A scrivener’s error occurs when the intention of the parties is identical at 

the time of the transaction but the written agreement errs in expressing that 

intention.” Glepco, LLC v. Reinstra, 175 Wn. App. 545, 561, 307 P.3d 744 

(2013). A scrivener’s error must be established by clear, cogent, and convincing 

evidence. Glepco, 175 Wn. App. at 560–61. “Clear, cogent, and convincing 
No. 79318-7-I/15

15

evidence exists when the ultimate fact in issue is shown by the evidence to be 

highly probable.” In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 

(1995) (internal quotation marks and citation omitted). We determine the intent 

of the parties “by viewing the contract as a whole, the subject matter and 

objective of the contract, all the circumstances surrounding the making of the 

contract, the subsequent acts and conduct of the parties to the contract, and the 

reasonableness of respective interpretations advocated by the parties.” Glepco, 

175 Wn. App. at 561. Additionally, we may affirm the trial court on any basis 

supported by the record. Larson v. State, 9 Wn. App. 2d 730, 744, 447 P.3d 168 

(2019).

The copy of the Daycare note in the record signed June 14, 2013,

designated as Exhibit 22, states that Downie personally guarantees the Daycare 

note. For the following reasons, this constituted a scrivener’s error. 

Jackson, who drafted the Daycare note, testified as follows: The Daycare 

note contained Downie’s personal guarantee because he used a template from a 

previous transaction and neglected to delete the personal guarantee language. 

According to Jackson, Frye did not request a personal guarantee, and Downie 

did not offer a guarantee. Jackson testified that on June 17, 2013, he went to the 

bank with Frye to wire money out from her account. While at the bank, Jackson 

was reviewing the documents he had brought, and noticed the personal 

guarantee language on the Daycare note. Since the language was mistakenly 

included, he crossed off the guarantee. Jackson pointed out the correction to 

Frye, and offered to have Downie execute a new note. Frye indicated that she 
No. 79318-7-I/16

16

did not want Downie to execute a new copy.

5

 Jackson gave Frye the Daycare 

note.

Downie also testified that he did not personally guarantee the note. He 

said Frye did not request a personal guarantee, and he did not offer her a 

guarantee. Frye testified that she lost her original version of the note.

Based on the foregoing testimonial evidence, the trial court found that 

Downie did not personally guarantee the Daycare note. We need not weigh 

Frye’s statements to the contrary, since the trial court found that Frye was not 

credible on any issue in dispute. The trial court also found that, standing alone, 

Downie’s testimony was not reliable, but that it was credible, since “transaction 

documents, written communications, and the testimony of every non-party 

witness” corroborated it.

6

 The trial court also found that Jackson was credible 

and reliable on every issue in dispute. We defer to a trial court’s determinations 

as to the weight and credibility of the evidence. Mueller, 185 Wn.2d at 9. Since 

the factual dispute of whether Downie personally guaranteed the note depends 

on the weight and credibility of Downie, Frye, and Jackson’s testimony, we

conclude that it is highly probable that the inclusion of the personal guarantee 

 

5 Frye argues that Downie’s testimony about the personal guarantee conflicts 

with Jackson’s, and that Downie understood that he personally guaranteed the Daycare 

note. But Downie unequivocally stated that he did not personally guarantee the note, 

and that it was his understanding—as a non-lawyer—that Northshore Montessori 

“personally guaranteed” the note, and that he signed on Northshore Montessori’s behalf.

6 Eight non-party witnesses testified during trial.
No. 79318-7-I/17

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language constituted scrivener’s error. Thus, the trial court properly found 

Downie did not guarantee the Daycare note.7

C. JDH and Downie’s Counterclaims

Frye argues the trial court erred by ruling in JDH and Downie’s favor on 

their counterclaims. She argues that: (1) she had no contractual obligation to 

accept JDH’s offer of tender; (2) the trial court erroneously concluded that her 

complaint and lis pendens constituted slander of title; and (3) the trial court erred 

in concluding that she is liable to JDH and Downie for tortious interference with a 

business expectancy. JDH and Downie disagree. We conclude that the trial 

court properly ruled on these counterclaims.

1. JDH’s Breach of Contract Claim

Frye argues she had no contractual obligation to accept JDH’s tender 

offer. We disagree. 

First, the Auburn notes require that, “when paid, this note and the Deed of 

Trust must be surrendered to the trustee with request for reconveyance.” Next, 

every contract contains an implied duty of good faith and fair dealing. Badgett v. 

Security State Bank, 116 Wn.2d 563, 569, 807 P.2d 356 (1991). This duty does 

 

7 Exhibit 22 is a version of the Daycare note without the personal guarantee 

language crossed out. Frye argues that, since the respondents did not object in limine 

to Exhibit 22’s authenticity, they cannot later claim that Exhibit 22 did not represent the 

final version of the note. But admission of evidence “does not restrict the trier of fact’s 

authority to determine the weight of the evidence after hearing all of the evidence and 

the arguments of opposing parties.” ER 904(d). Here, the trial court weighed the copy 

of the Daycare note in the record against Downie’s, Frye’s, and Jackson’s testimony, 

and concluded that Exhibit 22 did not represent the parties’ full agreement. Further, the 

respondents do not argue that the exhibit should not have been admitted; but instead 

that the note was altered after Downie signed it but before it was delivered to Frye, so 

the exhibit does not represent the agreement of the parties. 
No. 79318-7-I/18

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not oblige a party to accept a material change in the contract, but does require 

the parties to perform in good faith the obligations imposed by their agreement. 

Badgett, 116 Wn.2d at 569. Frye argues she had no obligation to accept a 

reduced payoff amount for the Auburn notes; but as discussed above, JDH’s 

$1.2 million tender was for the correct amount due. Because Frye refused the 

tender, demanded amounts in excess of $1.2 million, and asserted that she could 

charge whatever she wanted, since the refinancing depended on her release of 

the Auburn notes, the trial court properly determined that Frye violated her 

obligations under the notes and the implied covenant of good faith.8

2. JDH’s Slander of Title Claim

Frye argues the trial court erroneously concluded her complaint and lis 

pendens constituted slander of title. We disagree.

Slander of title is: “(1) false words; (2) maliciously published; (3) with 

reference to some pending sale or purchase of property; (4) which go to defeat 

plaintiff’s title; and (5) [resulting in] pecuniary loss.” Centurion Prop. III, LLC v. 

Chicago Title Ins. Co., 186 Wn.2d 58, 80-81, 375 P.3d 651 (2016). We address 

these elements in turn.

 

8 Frye also argues that JDH could have paid “under protest” the full amount she 

demanded, and then sued to recover the alleged overcharges, as in Rodgers v. Rainier 

Nat’l Bank, 111 Wn.2d 232, 757 P.2d 976 (1988). But as noted by the respondents, 

Frye did not raise this argument below, and accordingly, we need not consider it. 

RAP 2.5(a). Additionally, Frye points to no authority that suggests JDH must have paid 

under protest in these circumstances.
No. 79318-7-I/19

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a. False words

We agree with the trial court’s conclusion that the plaintiffs included false 

allegations in their complaint.

On August 23, 2017, Frye filed a lis pendens referencing the Auburn 

property, which states that the “[p]laintiffs have superior right, title and interest to 

all defendants in a portion of the [Auburn property] under claims as specified in 

the Complaint.” “[T]he Complaint” is a reference to the complaint filed by Frye on 

August 24, 2017, wherein she alleged fraud and that she passed title to the 

defendants under false pretenses, and requested rescission of the deeds and 

return of the Auburn property.

As a part of the fraud and false pretenses claims in the complaint, Frye 

contended that Downie misrepresented his involvement in JDH. The trial court 

determined that Frye had failed to satisfy her burden of proof on the elements of 

the claims. From such, the trial court concluded that she made false allegations 

in the complaint, including “the allegation that [Frye] had been deceived in a 

manner that would justify rescinding the sale of the property that had occurred in 

2013.” Frye does not assign error to the trial court’s finding that she knew of 

Downie’s involvement in JDH “from the beginning”; this unassigned factual 

finding is a verity on appeal. Since the facts are to the contrary of Frye’s 

assertion that Downie misrepresented his involvement in JDH, the complaint

contained false words.
No. 79318-7-I/20

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b. Maliciously published

Frye argues JDH did not prove malice, but does not argue that the trial 

court improperly concluded that the filing of the complaint and recording of the lis 

pendens constituted “publishing.”

9

The trial court properly concluded that Frye published the complaint and 

lis pendens with malice. In determining as such, the trial court made the 

following unchallenged findings of fact: After the parties came to a disagreement 

about the amount owed on the Auburn notes, Frye changed her demand first 

from $1.5 to $1.6, then to $1.7 million, “saying that she could demand whatever 

she wanted because JDH needed her payoff to close its refinance”; JDH refused 

to pay these additional amounts; and shortly thereafter, Frye filed her complaint 

and lis pendens. “The element of malice is met when the slanderous statement 

is not made in good faith or is not prompted by a reasonable belief in its veracity.” 

Rorvig v. Douglas, 123 Wn.2d 854, 860, 873 P.2d 492 (1994). That Frye filed 

her complaint and lis pendens shortly after JDH refused to pay her more than 

was owed on the notes supports the trial court’s conclusion that Frye made false 

allegations maliciously, and in bad faith, to extort money in excess of the amount 

actually owed on the notes. 

 

9 Frye argues that the trial court erred in reaching Conclusion of Law 90, wherein 

the trial court determined that the filing of the complaint and recording of lis pendens 

constituted publishing. However, Frye did so as a part of her argument regarding 

privilege—addressed below—and not as a part of her argument regarding malicious 

publishing.
No. 79318-7-I/21

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c. Reference to some pending sale or purchase of property

The pending sale element requires more than a mere expectation that 

negotiations about a sale might begin; actual negotiations or offers suffice. 

Rorvig, 123 Wn.2d at 860 (citing Clarkston Com’ty Corp. v. Asotin County Port 

Dist., 3 Wn. App. 1, 472 P.2d 558 (1970)). Frye argues no sale was pending at 

the time the complaint and lis pendens were filed, but JDH had received a letter 

of intent from Toll Brothers to purchase the Auburn property on or before 

November 1, 2017 by this time.

d. Defeating plaintiff’s title

The complaint and lis pendens go to defeat JDH’s title insofar as they 

allege Frye has a right to rescission of the contract transferring them the 

property. The lis pendens unequivocally clouded JDH’s title to the property. 

See, e.g., RCW 4.28.328(1)(a) (“‘Lis pendens’ means a lis pendens . . . or other 

instrument having the effect of clouding title to real property.”). The trial court 

properly concluded that JDH established this element.

e. Pecuniary loss

Frye does not contest the trial court’s conclusion that JDH and Downie 

suffered pecuniary loss as a result of her wrongful conduct, or the underlying 

factual findings supporting it. Thus, we uphold the trial court’s determination as 

to this element.

f. Privilege defense

Frye argues that JDH’s slander of title counterclaim fails because the lis 

pendens and complaint were absolutely privileged. See McNeal v. Allen, 95 
No. 79318-7-I/22

22

Wn.2d 265, 267, 621 P.2d 1285 (1980) (“Allegedly libelous statements, spoken 

or written by a party or counsel in the course of a judicial proceeding, are 

absolutely privileged if they are pertinent or material to the redress or relief 

sought, whether or not the statements are legally sufficient to obtain that relief.”). 

Frye claimed privilege in her Reply and Affirmative Defenses to the Respondents’ 

Counterclaims, but not with argument or citation to legal authority. Thus, Frye 

raises this argument for the first time on appeal and we decline to consider it.10 

See RAP 2.5.

The trial court properly determined that Frye is liable for slander of title.

3. JDH and Downie’s Tortious Interference Claim

The trial court determined Frye was liable for tortious interference with a 

business expectancy due to her interference with JDH and Downie’s efforts to 

 

10 But even if considered, under RCW 4.28.328(3), “[u]nless a claimant 

establishes a substantial justification for filing the lis pendens, a claimant is liable to an 

aggrieved party who prevails in defense of the action in which the lis pendens was filed 

for actual damages,” as well as reasonable attorney fees and costs. 

Additionally, in Centurion, our Supreme Court, in concluding that the tort of 

slander of title requires malicious conduct and not mere negligence, stated that “if simple 

negligence were the rule, a party claiming an erroneous but good faith interest in real 

property would not be entitled to litigate [their] claim and have an adjudication without 

fear of being penalized in damages.” 186 Wn.2d at 81. This statement suggests good 

faith lis pendens filings are sufficiently protected by the tort’s malice element, without 

need for an absolute privilege. See also 50 AM. JUR. 2d § 520 (“The filing of a lis 

pendens notice, however, is not a privileged act and can form the basis for a slander of 

title claim where the filing is instituted for a purpose other than securing adjudication of a 

plaintiff’s claim and is without reasonable belief in a valid claim, or in other words, is an 

improper filing.”). 

While the trial court did not make a ruling on privilege—perhaps because Frye 

did not adequately argue the issue—it did, in granting JDH’s claim for attorney fees 

associated with slander of title, conclude that Frye’s demand for default interest lacked 

any justification, and that “Frye’s testimony was so contrary to the evident facts . . . as to 

suggest bad faith.” Further, as discussed above, the trial court properly concluded that 

Frye acted with malice. 
No. 79318-7-I/23

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refinance, and JDH’s efforts to sell the Auburn property. We agree with the trial 

court.

Tortious interference with a contract requires:

(1) the existence of a valid business expectancy, (2) that the 

defendant had knowledge of that expectancy; (3) an intentional 

interference inducing or causing termination of the expectancy; (4) 

that the defendant interfered for an improper purpose or used 

improper means; and (5) resultant damage.

Greensun Group, LLC v. City of Bellevue, 7 Wn. App. 2d 754, 767–68, 436 P.3d 

397 (2019) (internal ellipses, quotation marks and citation omitted). Finally, good 

faith may privilege an interferer’s actions. Greensun, 7 Wn. App. 2d at 777. We 

address these elements in turn. 

a. Valid business expectancy

The trial court found that Toll Brothers sent JDH a letter of intent to 

purchase the Auburn property for $7,800,000. Frye argues no business 

expectancy existed as to Toll Brothers, because the letter of intent did not bind 

the parties to sale. Frye does not argue that no business expectancy existed as 

to the refinancing.

Courts require less than an enforceable contract to establish a business 

expectancy; a reasonable expectation of a prospective contractual relationship 

may suffice. Greensun, 7 Wn. App. 2d at 768–69. Although the letter of intent 

did not bind the parties to sale, it nevertheless created a reasonable expectation 

of a prospective contractual relationship sufficient to constitute a business 

expectancy. This unchallenged finding of fact supports the trial court’s 
No. 79318-7-I/24

24

conclusion that a valid business expectancy existed as to the refinancing and 

sale.

b. Knowledge

Frye argues she did not know of the Toll Brothers’ letter of intent, and that 

she was not informed the refinancing would fail unless a deal was reached. This 

element requires that Frye knew of “facts giving rise to the presence of the 

business expectancy.” Greensun, 7 Wn. App. 2d at 771. 

The trial court’s findings establish that Frye knew of the refinancing. Frye 

need not have known of the possibility of the refinancing’s failure, but only of the 

expectancy itself. The trial court found that Frye knew of the business 

expectancy of the sale.11 While Downie and JDH did not specifically inform her 

of the Toll Brothers’ letter of intent, Frye knew they were making efforts to sell the 

property after they obtained preliminary plat approval. Frye does not challenge 

the trial court’s findings establishing that she had knowledge of the refinancing, 

and substantial evidence supports the trial court’s finding that she had knowledge 

of the sale.

 

11 The trial court apparently found that Frye knew of the sale in Conclusion of 

Law 57. “We treat mislabeled findings of fact or conclusions of law as what they actually 

are, and review them accordingly.” State v. Conway, 8 Wn. App. 2d 538, 552 n.8, 438 

P.3d 1235 (2019). “Findings of fact are determinations of whether evidence shows that 

something occurred or existed. Conclusions of law are determinations made by a 

process of legal reasoning from facts in evidence.” Casterline v. Roberts, 168 Wn. App. 

376, 382–83, 284 P.3d 743 (2012) (internal quotation marks, ellipses, and citations 

omitted). Further, the trial court stated that, “[t]o the extent the following Findings of Fact 

contain legal conclusions those shall be deemed Conclusions of Law, and to the extent 

the following Conclusions of Law contain factual findings, those shall be deemed 

Findings of Fact.” Here, the trial court’s conclusion that Frye knew of the sale more 

resembles a finding of fact; thus, we review it to determine if it is supported by

substantial evidence. 
No. 79318-7-I/25

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c. Intentional interference

Frye argues she did not interfere with the refinancing or sale. “A party 

intentionally interferes with a business expectancy if it desires to bring it about or 

if [they] know that the interference is certain or substantially certain to occur as a 

result of [their] action.” Greensun, 7 Wn. App. 2d at 772 (internal quotation 

marks and citation omitted). Analysis of this element does not consider good 

faith. Greensun, 7 Wn. App. 2d at 772.

Unchallenged findings of fact demonstrate that Frye insisted first on a 

$1.5 million payment for release of her notes, then $1.6, then $1.7 million; by 

doing so, Frye intentionally interfered with the refinancing. The trial court also 

found that Frye induced Jones to delay issuing a payoff quote.12 This finding is 

supported by substantial evidence; Jackson claims that Frye asked Jones to 

delay her payoff quote until Frye “got what she wanted.” Frye’s attempts to 

induce Jones to delay issuing a payoff quote also constitute intentional 

interference with the refinancing.

By filing her complaint and lis pendens action, it was substantially certain 

that JDH’s title to the Auburn property would be clouded and sale would be more 

difficult.13 See, e.g., RCW 4.28.328(1)(a). Frye intentionally interfered with any 

sale by filing her complaint and lis pendens.

 

12

“We treat mislabeled findings of fact or conclusions of law as what they actually 

are, and review them accordingly.” Conway, 8 Wn. App. 2d at 552 n.8 The portion of 

this conclusion stating that Frye induced Jones to delay issuing a payoff quote 

constitutes a finding, not a conclusion.

13 Frye assigns error to Finding of Fact 99, which states that the lis pendens 

acted as a “preliminary injunction” preventing sale and refinancing. But whether this is 
No. 79318-7-I/26

26

The trial court’s conclusion that Frye intentionally interfered with JDH and 

Downie’s business expectancies is supported by unchallenged findings of fact, or 

by findings that are, in turn, supported by substantial evidence.

d. Improper purpose or improper means

Frye argues she did not act with improper purpose or use improper means 

to prevent the refinancing or sale. A plaintiff establishes this element when the 

defendant acts with improper motive, improper means, or both. Greensun, 7 Wn. 

App. 2d at 773. The trial court ruled that Frye acted with an improper purpose, 

and used improper means to effectuate the improper purpose. 

“Exercising one’s legal interest in good faith is not improper interference.” 

Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 168, 273 P.3d 965 (2012). 

But when a party acts with greed, hostility, or retaliation, they demonstrate an 

improper purpose. Elcon, 174 Wn.2d at 169. Frye claims she had a good faith 

basis for demanding $1.5 million on the Auburn notes. But even assuming as 

such, no good faith basis existed for demanding $1.6 million, then $1.7 million. 

The trial court’s unchallenged findings of fact establish that Frye claimed she 

could demand whatever she wanted, since otherwise, JDH would not be able to 

refinance. Her demands and statement that she could ask for whatever she 

wanted reflect hostility as her purpose for interfering with the refinancing. Thus, 

the trial court’s findings support its conclusion that she interfered with the 

refinancing for an improper purpose.

 

an accurate representation of the lis pendens’ effect need not be resolved, since the lis 

pendens also interfered with the sale by clouding JDH’s title to the Auburn property.
No. 79318-7-I/27

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“To show improper means, the plaintiff must demonstrate the defendant 

had a duty not to interfere. To establish such a duty, the plaintiff may point to a 

statute, regulation, recognized common law, or established standard of trade or 

profession.” Greensun, 7 Wn. App. 2d at 773. Under Washington law, every 

contract has an implied duty of good faith and fair dealing. Rekhter v. State, 

Dep’t of Soc. and Health Serv., 180 Wn.2d 102, 112, 323 P.3d 1036 (2014). As 

discussed above, the trial court’s unchallenged findings of fact support its 

conclusion that Frye maliciously published her complaint and lis pendens. By 

maliciously filing the complaint and lis pendens, Frye acted in bad faith and via 

improper means. The trial court’s findings support its conclusion that Frye acted 

with improper means to cloud JDH’s title to the Auburn property, effectively 

preventing its sale. 

e. Resultant damage

Frye argues that JDH failed to prove resultant damage, since the Toll 

Brothers’ letter of intent cannot serve as a reasonable estimate of the Auburn 

property’s value. Frye also argues the trial court erred in its determination of the 

refinancing damages. Claims of damages must be proved with reasonable 

certainty and supported by evidence sufficient to afford a reasonable basis for 

estimating loss. Greensun, 7 Wn. App. 2d at 776.

The trial court found that portions of the refinance monies were intended 

to go to Downie, and that he suffered $60,063 in damages as a result of the 

failure of the refinancing. These unchallenged findings of fact support the trial 
No. 79318-7-I/28

28

court’s conclusion that Downie suffered $60,063 as a result of Frye’s tortious 

interference.14

The trial court found that JDH suffered $407,151 in additional carrying 

costs as a result of the failure of the refinance and sale. It is unclear exactly what 

portion of the carrying costs can be attributed to the failure of the refinance and 

what portion of these damages can be attributed to the failure of the sale of the 

Auburn property, but Frye does not meaningfully dispute the trial court’s 

computation of damages.15

Additionally, the trial court found that JDH suffered $106,457 in loss of use 

of net proceeds as the result of the failure of the sale, and used the purchase 

price from the Toll Brothers’ letter of intent to compute JDH’s damages. Frye 

argues that this is an improper computation, since the sale to Toll Brothers was 

 

14 Frye argues that Downie did not have standing to assert tortious interference 

since, as the sole LLC member, he suffered no distinct injury separate from the LLC. 

See Woods View II, LLC v. Kitsap County, 188 Wn. App. 1, 22–24, 352 P.3d 807 (2015). 

Frye appears to have raised this argument below only during oral argument at the 

hearing on her motion for reconsideration. Based on the record, it is unclear what 

provision of law Frye referred to in making this argument. We need not consider issues 

an appellant failed to raise below. See State v. Burden, 104 Wn. App. 507, 515, 17 P.3d 

1211 (2001) (determining the State waived an argument where it only, and obliquely, 

raised such argument during oral argument, and not in its briefing); RAP 2.5(a). In any 

event, JDH also asserted the tortious interference claim, so the $60,063 claimed by 

Downie would otherwise have gone to JDH, of which Downie is the sole member. 

15 Frye does not assign error to Finding of Fact 101. However, Frye argues that 

after its oral ruling, the trial court improperly allowed JDH and Downie to amend their 

claimed damages, and also erred by “denying [her] motion for reconsideration to correct 

mathematical errors made in their calculations.” Frye does not offer legal authority in 

support of her proposition that this court should disregard the trial court’s damages 

calculations, or in support of her claim that the trial court improperly allowed amendment 

of claimed damages. We need not consider arguments unsupported by legal authority. 

Cowiche Canyon Conservancy, 118 Wn.2d at 809; RAP 10.3(a)(5).
No. 79318-7-I/29

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speculative, and the value listed in the letter of intent did not represent the fair 

market value of the Auburn property. 

As to whether the sale to Toll Brothers was too speculative to support an 

award of damages, first, the question is not whether an actual sale would have 

happened, but whether Frye interfered with a reasonable business expectancy. 

As already addressed, she did so. Second, the respondents presented evidence 

that Frye’s conduct prevented the sale. 

As to the Auburn property’s value, JDH need only prove its damages with 

reasonable certainty. See Greensun, 7 Wn. App. 2d at 776; see also Rorvig, 123 

Wn.2d at 861 (“Evidence of damages is sufficient if it affords a reasonable basis 

for estimating the loss and does not subject the trier of fact to mere speculation 

or conjecture.”). “Fair market value is the amount a willing buyer would pay a

seller who is willing but not obligated to sell.” U.S. Tobacco Sales and Mktg. Co., 

Inc., v. Dep’t of Revenue, 96 Wn. App. 932, 940, 982 P.2d 652 (1999) (internal 

quotation marks and citation omitted). Here, Toll Brothers expressed a 

willingness to purchase the property for $7.8 million, and Frye presented no 

evidence suggesting an alternative value for the property.

Because the Toll Brothers sale was not too speculative to support an 

award of damages, and the letter of intent reasonably estimates the property’s 

value, substantial evidence supports the trial court’s findings as to the Auburn 

property’s value and JDH’s damages.
No. 79318-7-I/30

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f. Good faith

Frye argues she cannot be liable for tortious interference because she 

acted in good faith. “Good faith may privilege an [interferer]’s actions and 

thereby serve as an affirmative defense to a tortious interference claim.” 

Greensun, 7 Wn. App. 2d at 777. But as discussed above, by increasing her 

demands for payment and by maliciously filing the complaint and lis pendens, 

Frye did not act in good faith.

Because all the trial court’s conclusions as to the foregoing elements of 

the tort are supported by the trial court’s findings, which are in turn supported by 

substantial evidence, and Frye cannot claim she interfered in good faith, the trial 

court properly concluded Frye is liable for tortious interference with a business 

expectancy.

E. Attorney Fees

Frye argues the trial court improperly awarded fees to JDH and Downie 

because (1) her claims were not based on the parties’ purchase and sale 

agreement (PSA), (2) the counterclaims do not support an award of fees, (3) the 

fee provision in the Daycare note does not allow fees to Downie for escaping 

liability as a guarantor, and (4) the award is unreasonable and excessive since it 

does not use the lodestar method. The respondents disagree on all counts, and 

request an award of appellate fees under RAP 18.1. We agree with the 

respondents and award them fees on appeal. 

“A party is entitled to attorney fees on appeal if a contract, statute, or 

recognized ground of equity permits recovery of attorney fees at trial and the 
No. 79318-7-I/31

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party is the substantially prevailing party.” Hwang v. McMahill, 103 Wn. App. 

945, 954, 15 P.3d 172 (2000). We review de novo a trial court’s award of 

attorney fees under contract, and review a discretionary decision on fees and the 

reasonableness of the fee award for an abuse of discretion. Gander v. Yeager, 

167 Wn. App. 638, 647, 282 P.3d 1100 (2012). The trial court granted an 

attorney fee award of $263,916, with 60 percent of those fees allocated to 

defense of the claims related to the Auburn sale, 20 percent allocated to the 

counterclaims, and 20 percent to Frye’s other monetary claims against Downie.

1. Fee award to JDH—PSA

The PSA under which Frye transferred the Auburn property to JDH allows 

for an award of attorney fees to the prevailing party in “any action . . . involving 

the [Auburn property] whether founded in tort, contract or equity.” Frye argues 

the trial court improperly awarded fees based on her complaint because she did 

not seek rescission of the PSA and did not even mention it in her complaint.

However, in her complaint, Frye alleged Downie and JDH obtained the 

Auburn property under false pretenses and committed fraud by inducing her to 

enter a real estate contract with a false representation. Further, she requested 

rescission of her transfer of the Auburn property. Frye’s claims plainly related to 

the Auburn property and the transfer of it—as required by the attorney fees 

provision in the PSA—whether or not she directly referenced the PSA. Thus, the 

trial court properly relied on the attorney fees provision in the PSA as a basis for 

awarding fees. 
No. 79318-7-I/32

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2. Fee award to JDH—counterclaims16

The trial court based its award of fees for the counterclaims on the 

attorney fee clauses in the Auburn notes. The trial court also granted attorney 

fees based on the slander of title cause of action because it concluded that Frye 

filed her complaint and lis pendens in bad faith. Frye argues that JDH has no 

right to collect fees based on the Auburn notes. Frye also argues that the trial 

court improperly concluded the complaint and lis pendens were filed in bad faith, 

so the trial court improperly awarded fees on slander of title grounds.

The Auburn notes provide, “Should suit be commenced to collect this note 

or any portion thereof, such sum as the Court may deem reasonable shall be 

added hereto as [attorney] fees.” It is unclear whether this provision constitutes a 

one-way attorney fee provision, but even if so, RCW 4.84.330 would render this 

provision bilateral, and allow JDH to recover under it for their counterclaims that 

stem from Frye’s refusal to accept payment on the Auburn notes. RCW 4.84.330 

provides:

In any action on a contract or lease entered into after September 21, 

1977, where such contract or lease specifically provides that 

[attorney] fees and costs, which are incurred to enforce the 

provisions of such contract or lease, shall be awarded to one of the 

parties, the prevailing party, whether [they] is the party specified in 

the contract or lease or not, shall be entitled to reasonable [attorney] 

fees in addition to costs and necessary disbursements.

Additionally, “attorney fees are recoverable as special damages in a 

slander of title action.” Rorvig, 123 Wn.2d at 861. While the trial court concluded 

 

16 The trial court granted attorney fees to Downie based on his defense of Frye’s 

attempts to recover on the Daycare note, addressed below, and not on his tortious 

interference counterclaim.
No. 79318-7-I/33

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that Frye acted in bad faith, it need not have done so to impose attorney fees for 

the slander of title action. Thus, the trial court properly determined that the 

success of JDH’s breach of contract, tortious interference, and slander of title 

actions entitled them to attorney fees.

3. Fee award to Downie 

Frye argues Downie is not entitled to attorney fees because the fees 

provision in the Daycare note entitles only the “Maker” of the note—i.e., 

Northshore Montessori—to attorney fees, but Downie is not the “Maker,” and 

thus cannot recover. 

The Daycare note states that “[t]he Maker shall pay all costs and 

expenses, including reasonable [attorney] fees . . . incurred in collecting payment 

on this note.” RCW 4.84.330 renders this provision bilateral and likewise would 

allow the “Maker” of the note to recover reasonable attorney fees in actions 

incurred in collecting payment on the Daycare note.

While it is true that Downie did not make the Daycare note, Frye alleged 

that he was liable on it as a personal guarantor. The broad language of 

RCW 4.84.330 encompasses any action in which it is alleged that a person is 

liable on a contract, and Frye alleged as such against Downie here. Herzog 

Alum., Inc., v. Gen. Am. Window Corp, 39 Wn. App. 188, 197, 692 P.2d 867 

(1984). Thus, the trial court properly granted attorney fees to Downie.

4. Method of computation

Frye argues the trial court erred in its computation of attorney fees 

because it did not use the lodestar method, and instead allowed block billing by 
No. 79318-7-I/34

34

respondents’ attorneys. 

The lodestar method entails multiplying a reasonable number of hours 

times a reasonable hourly rate. Bowers v. Transamerica Title Ins. Co., 100 

Wn.2d 581, 597, 675 P.2d 193 (1983). A failure to address block billing concerns 

constitutes reversible error. Berryman v. Metcalf, 177 Wn. App. 644, 658–59, 

312 P.3d 745 (2013). We review the reasonableness of a fee award for abuse of 

discretion. Gander, 167 Wn. App. at 647. “Discretion is abused when the trial 

court exercises it on untenable grounds or for untenable reasons.” Berryman, 

177 Wn. App. at 657.

Here, the trial court initially calculated an attorney fee award of 

$283,678.47, based on a $350 per hour rate paid to the respondents’ attorney 

Michael Zeno. However, based on Zeno’s 34-year experience and the prevailing 

hourly rate for attorneys of his experience, skill, and education, the trial court 

determined the award was unreasonably low and increased his hourly rate to 

$450, increasing the award by $69,640. The trial court additionally recognized 

that Jackson had performed considerable work on the case, noted that Jackson 

had spent 186 hours on legal tasks for the case at a rate of $400 per hour, and 

increased the award by $74,400. However, the trial court then recognized that 

Zeno had made entries based on block billing, and addressed that concern by 

returning to its initial fees calculation of $283,678.47. Then, the trial court further 

reduced the award to $263,916, finding some of the work performed by a 

paralegal involved in the case should receive a lower hourly rate.

The trial court addressed any concerns regarding block billing by returning 
No. 79318-7-I/35

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to its initial fees calculation at the lower, “unreasonable” rate. The trial court did 

not abuse its discretion, and the fee award was reasonable.

5. Appellate fees

Because we affirm the judgment in the respondents’ favor, we also 

determine they are the prevailing parties on appeal. Since the trial court properly 

determined the PSA, Auburn notes, and slander of title action can serve as an 

appropriate basis for fees, we accordingly conclude that the respondents, as the 

prevailing parties, are entitled to attorney fees under the same terms, subject to 

their compliance with RAP 18.1.

We affirm.

WE CONCUR: