IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SAMIR RATHOD and DARSHANA 

RATHOD, husband and wife,

 Plaintiffs,

 v.

FEELY INDUSTRIES, LLC, d/b/a TRUE 

CUSTOM CABINETRY, a Washington 

limited liability company; TGC INC., a 

Washington corporation; and RLI 

CORP. d/b/a CBIC, an Illinois 

corporation,

 Defendants.

________________________________

BUILDERS’ INSULATION OF 

OREGON, LLC, an Oregon limited 

liability company,

 Respondent,

 v.

JEFF HALLSTROM CONSTRUCTION, 

INC., a Washington State corporation,

 Defendant.

SAMIR RATHOD and DARSHANA 

RATHOD, and the marital community 

composed thereof,

 Appellants.

 No. 84256-1-I

 DIVISION ONE

UNPUBLISHED OPINION
No. 84256-1-I/2

2

________________________________

JEFF HALLSTROM CONSTRUCTION, 

INC., a Washington corporation,

 Plaintiff,

 v.

SAMIR RATHOD and DARSHANA 

RATHOD, and the marital community 

composed thereof,

 Defendants.

________________________________

NORCO FIRE PROTECTION, INC., a 

Washington corporation,

 Plaintiff,

 v.

SAMIR RATHOD and DARSHANA 

RATHOD, and the marital community 

composed thereof,

 Defendants.

WESTERN SURETY CO., a South 

Dakota corporation,

 Defendant.

COBURN, J. — Samir and Darshana Rathod wanted to build their dream home. 

That endeavor resulted in the consolidation of three lawsuits involving eight parties and 

multiple claims and cross claims. This appeal involves one dispute that arose after the 

Rathods failed to pay Builders’ Insulation of Oregon (Builders) for their work insulating

the Mercer Island home the Rathods were building. The trial court found the Rathods
No. 84256-1-I/3

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breached their contract with Builders and ordered the Rathods to pay Builders the total 

value of the contract as well as Builders’ attorney fees and costs. The Rathods 

challenge the award of attorney fees and a summary judgment ruling determining the 

existence of a contract. We affirm the summary judgment ruling, but reverse the award 

of attorney fees and remand because the trial court based its attorney fees award, in 

part, on facts not supported in the record.

FACTS

Because the challenge is to a grant of summary judgment, we discuss 

substantive facts as presented at the time of summary judgment and not from the trial 

record. 

The Rathods purchased a property on Mercer Island where they planned to build 

their “dream home.” In May 2018, Samir1 terminated his contract with his general 

contractor and hired Jeff Hallstrom Construction Inc. (JHCI) as the new general 

contractor. In June 2018, JHCI presented Samir with a bid for insulation services from 

Builders. Samir discussed several changes to the bid directly with Builders employees 

Dale Nichols and Francisco Cortez between June and August 2018. During that time, 

Samir sent several emails requesting certain types of insulation in different parts of the 

home to “minimize noise” between bedrooms and an office and to create “sound 

deadening” in a planned media room. Samir and Builders discussed the type of 

installation available for these purposes and which would suit his needs. 

In late July, Builders submitted a proposed bid to Samir via email for the 

insulation services. Another email delivering a revised proposal to Samir explained that 

 1 We use Samir Rathod’s first names for clarity because he shares the same last name 

with Darshana Rathod.
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it was revised with additional options “per our phone conversation.” Builders submitted 

two more revised bids. The last bid was submitted to Samir on August 29, 2018. The 

email was addressed to both Hallstrom and Samir. The bid listed Hallstrom as the 

contact. Samir did not object to the bid or ask for more revisions. This final bid stated 

that payment was due within 30 days of the date of invoice and reserved Builders’ “right 

to recover reasonable attorney’s fees and expenses associated with the collection of 

invoices not paid in full within such 30 day period.” Builders began the insulation work 

days later. No one ever signed the August 29 bid. 

Builders began the installation in September 2018. During the installation 

process, Samir communicated with Builders via text message and phone, concerned 

that Builders was not installing the insulation to the specifications provided in the bid. 

Samir provided photos showing the measurements of the spray foam insulation on the 

ceiling, saying that it was not two inches thick as they had agreed to in the bid and 

asking Builders to fix it because Builders was not “executing on the bid correctly.” 

Builders arranged to have a crew correct the work to align with the terms in the bid. 

Builders completed the installation in late September and the insulation was inspected 

and approved by the City of Mercer Island upon completion. Samir remained 

unsatisfied with Builders’ installation despite the inspection and text messaged Builders 

that the “[i]nspection doesn’t equal doing what’s in the agreement. Inspection means 

you met the minimum city requirements. Two totally different things.” Builders sent an 

invoice directly to Samir in early October for payment of the $29,400 reflected in the 

final bid. Samir responded by denying liability based on the fact neither he or Hallstrom 

signed “the contract.” Samir wrote in an email, “Jeff [Hallstrom] is not contracted with 
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me to do anything other than provide advisory services on the home that I am building. 

There were proposals emailed to me by both Dale and Francisco, but Jeff told me that 

he did not sign a contract on my behalf, and I didn’t sign the contract either . . . my 

liability (and Jeff’s liability) is $0.” 

Though the only relevant parties to this appeal are the Rathods and Builders,

because the challenged attorney fees touch upon the motion to consolidate multiple 

suits involving eight parties and the denial of the motion to sever, we briefly explain the 

relationship of the parties and various suits. The Rathods sued two companies for a 

breach of contract. One that provided custom cabinetry and the other millwork and 

finishing carpentry services. In a separate action, JHCI sued the Rathods alleging 

breach of contract, unjust enrichment, quantum meruit, and conversion. The Rathods 

counterclaimed for unjust enrichment and to claim the surety bond. NORCO Fire 

Protection, Inc. also sued the Rathods and the Rathods counterclaimed against 

NORCO and Western Surety Co. In yet another action, Builders sued JHCI, alleging 

breach of contract and unjust enrichment. JHCI joined and cross claimed against the 

Rathods. The Rathods counterclaimed only against JHCI for unjust enrichment related 

to Builders’ work. Builders amended their complaint, alleging breach of contract and 

unjust enrichment against the Rathods. 

In January 2021, the court granted the Rathods’ motion to consolidate all the 

cases. Builders later moved to sever, which the Rathods opposed arguing that much of 

the testimony that related to the claims and cross claims between the Rathods, JHCI 

and Builders are also applicable to the other consolidated cases. The court denied 

Builders motion to sever in April 2021. 
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In January 2022, Builders moved for summary judgment asking the court to find 

that the August 29 final bid was an enforceable contract and to award damages in the 

amount of the contract, $29,400. The court granted the motion in part and denied in 

part, finding that there was no genuine issue of material fact as to the existence of an 

enforceable contract between Builders and the Rathods, but finding that there was 

genuine issue of material fact as to Builders performance under the contract and the 

amount the Rathods owed to Builders. Builders sought to resolve the matter via 

settlement prior to trial without success. 

The case proceeded to a bench trial in March 2022. The trial lasted five weeks. 

Builders ultimately presented one day of testimony during the entirety of the trial. 

Following trial, the trial court issued findings of fact and conclusions of law. The 

Rathods do not assign error to any of these court’s findings or conclusions. The court 

found that 

[o]n or about August 29, 2018, the Rathods entered into a contract with 

Builders to insulate the Home for a price, accounting for selected options 

and discounts, of $29,400.00. See Exh. 709. On February 7, 2022, this 

Court (Scott, J.) determined that an enforceable contract exists between 

Builders and Mr. Rathod for the installation of insulation at the Home.” 

The trial court, in order to “clarify and supplement Judge Scott’s order,” found that 

Exhibit 709 is the enforceable contract “regardless of the fact that the contract was not 

physically signed by the Rathods.” This is so, the trial court found, because Samir

negotiated directly with Builders, received the contract and did not object, and engaged 

directly with Builders following the installation. The trial court further found that Builders 

completed their work and that the Rathods breached their contract with Builders. The 
No. 84256-1-I/7

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trial court entered judgment awarding Builders $29,400 in principal judgment along with 

the requested attorney fees and costs, yet to be submitted. 

Builders subsequently moved for an award of $268,429 in reasonable attorney 

fees and $15,756.70 in costs under the contract and as a prevailing party. The Rathods

objected to the request for attorney fees. The Rathods did not object to costs. They

argued the fees were unreasonable because they were more than 10 times the amount 

of the original bid, and because, among other reasons, having two attorneys attend the 

trial was duplicative, unnecessary and excessive. Builders, in a footnote in its reply to 

the objection, asserted that “Builders’ two attorneys attempted to keep costs down by

having only one appear at times during the trial.” The trial court granted Builders’ 

request for attorney fees and costs without any reduction based on “the reasons stated 

in Builders’ briefs in support thereof and incorporated herein.” The Rathods moved for 

reconsideration of the award of attorney fees. The trial court denied the motion. In 

doing so, the trial court noted that it had provided its reasons by referencing the 

Builders’ briefing, but supplemented the record by entering findings that summarized its 

reasons for the judgment entered:

1. The Rathods were in clear breach of the relevant contract, which 

included attorney’s fees provisions, and clearly failed to pay Builders.

2. It was uncontroverted that the Rathods moved to consolidate and thus 

complicate this matter vis-a-vis Builders in Superior Court, while Builders 

sought to simplify the matter.

3. It was uncontroverted that Builders sought to resolve this matter prior to 

trial preparation.

4. It was uncontroverted that Builders was thus required to attend the 

entirety of the five-week trial, in part because of the Rathods’ scattershot 

approach to trial testimony presentation.
No. 84256-1-I/8

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5. Builders appeared to try to limit its costs nonetheless, including by 

having only one attorney attend trial at a time.

6. Builders costs were reasonable under the Lodestar method.

The Rathods appeal.2

DISCUSSION

Summary Judgment

The Rathods contend that the trial court erred in granting in part Builders’ motion 

for summary judgment finding that there was no genuine issue of material fact as to 

whether there was an enforceable contract between Builders and the Rathods. 

We review summary judgments de novo. Strauss v. Premera Blue Cross, 194 

Wn.2d 296, 300, 449 P.3d 640 (2019). Summary judgment is appropriate when “‘there 

is no genuine issue as to any material fact and . . . the moving party is entitled to a 

judgment as a matter of law.’” Id. (alteration in original) (internal quotation marks 

omitted) (quoting Rangers Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 

(2008)); CR 56(c). We must construe all facts and inferences in favor of the nonmoving 

party. Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014). “A 

genuine issue of material fact exists when reasonable minds could differ on the facts 

controlling the outcome of the litigation.” Dowler v. Clover Park Sch. Dist. No. 400, 172 

Wn.2d 471, 484, 258 P.3d 676 (2011).

The party moving for summary judgment bears the initial burden of showing that 

 2 The Rathods appealed multiple orders that related to all respondents. The Rathods did 

not appeal the motion for reconsideration of the award of attorney fees. After the Rathods filed 

a notice of no intent to file verbatim report of proceedings and narrowed their appeal to review of 

two issues related only to Builders, Western Surety Co. withdrew its cross appeal and the other 

respondents filed their concurrence with Builder’s arguments and declined to file their own 

briefs. 
No. 84256-1-I/9

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there is no disputed issue of material fact. Haley v. Amazon.com Services, LLC, 25 Wn. 

App. 2d 207, 216, 522 P.3d 80 (2022) (citing Young v. Key Pharms., Inc., 112 Wn.2d 

216, 225, 770 P.2d 182 (1989)). The burden then shifts to the nonmoving party to 

present evidence that an issue of material fact remains. Id. The nonmoving party may 

accomplish this by setting forth facts and documents that would be admissible as 

evidence through depositions, answers to interrogatories, and admissions. CR 56(e).

The trial court must construe all evidence and reasonable inferences from that 

evidence in favor of the nonmoving party. Haley, 25 Wn. App. 2d at 217 (citing Boyd v. 

Sunflower Props. LLC, 197 Wn. App. 137, 142, 389 P.3d 626 (2016)). The trial court 

may not weigh the evidence, assess credibility, consider the likelihood that the evidence 

will be proven true, or otherwise resolve issues of material fact. Id. 

An enforceable agreement requires an offer, acceptance, and consideration. 

Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 

389-90, 858 P.2d 245 (1993). For an enforceable contract to exist, there must be 

mutual assent to its essential terms. Jacob’s Meadow Owners Ass’n v. Plateau 44 II, 

LLC, 139 Wn. App. 743, 765, 162 P.3d 1153 (2007). The intent of the parties may be 

determined from the language of the agreement as well as “‘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.’” Scott Galvanizing, Inc. v. Nw. EnviroServices, Inc., 120 Wn.2d 573, 580-81, 

844 P.2d 428 (1993) (internal quotation marks omitted) (quoting Berg v. Hudesman, 115 

Wn.2d 657, 667, 801 P.2d 222 (1998)). Signatures of the parties are not essential to 
No. 84256-1-I/10

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the determination. Jacob’s Meadow Owners Ass’n, 139 Wn. App. at 765 (citing Urban 

Dev., Inc. v. Evergreen Bldg. Prods., LLC, 114 Wn. App. 639, 651, 59 P.3d 112 (2002)). 

Unsigned contracts may be enforced without a signature when it is clear from the 

parties’ actions that such a contract existed. Shelcon Const. Grp., LLC v. Haymond, 

187 Wn. App. 878, 895, 351 P.3d 895 (2015). “Washington follows an objective 

manifestation test for contracts, looking to the objective acts or manifestations of the 

parties rather than the unexpressed subjective intent of any party.” Wilson Ct. Ltd. 

P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 699, 952 P.2d 590 (1998).

As the moving party, Builders presented extensive evidence of objective acts or 

manifestations supporting the existence of a contract. Builders provided emails 

showing that Samir negotiated the terms directly with employees of Builders between 

June and August 2018. Emails between Samir and Builders show that he requested 

specific types of insulation in different rooms of the house and discussed the types of 

insulation to be used and what should be included in the bid with Francisco Cortez. 

Builders also provided the proposed bids for the project submitted directly to Samir in 

July and August based on conversations they had with Samir while negotiating the 

terms. These proposed bids listed Hallstrom as the contact for the project, while the job 

name was the “Rathod Res / 3-Story” and included the address for Rathod’s home on 

Mercer Island. In a declaration submitted with Builders’ motion, Hallstrom stated that he 

was not involved in the negotiations and that Samir exclusively negotiated the scope 

and price of the project. Builders provided the “final bid” submitted to Samir on August 

29, 2018. The record does not reflect that Samir objected to any terms in the bid or 

sent a counteroffer. Instead, following this submission of the final bid, Builders began 
No. 84256-1-I/11

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work days later. 

Evidence shows that Builders began and completed installation of the insulation 

in September 2018. Builders submitted to the court evidence that during installation, 

Samir communicated with Builders via text message expressing his concerns that the 

insulation did not meet the specifications outlined in the final bid. On September 28, 

2018, Samir text messaged, “Dale – we need to talk. You aren’t executing on the bid 

correctly and I have drywall being nailed Monday morning. Need to meet today or 

tomorrow and a crew needs to finish by tomorrow.” Samir also text messaged, “the 

work agreement shows fire sprinkler tenting and that was not required by the city, and 

so it was not done, but is in your bid / quote. So there’s a deduction needed for that 

regardless. We will either settle this between us / between us and your management 

team, or I’ll just see you in court.” The August 29 bid included “FIRE SPRINKLING 

TENTING.” When Builders pointed out that the insulation had passed an inspection by 

the City of Mercer Island, Samir text messaged “[i]nspection doesn’t equal doing what’s 

in the agreement.” 

Builders also submitted transcripts of Samir’s deposition taken for this case. The 

follow exchange took place when Builders’ counsel asked Samir about his interactions

with Builders.

[Samir:] The interactions were related to the proposal and the bottom line 

price of the proposal for what it is I was looking for.

From the base proposal that was provided, I wanted to look at 

options for spray foam insulation, and I wanted to look at putting 

soundproof insulation in the interior walls so that – you know, I’ve got 

children, and I don’t want noise carrying through the house.

[Builders:] Do you recall how many proposals you received from Builders’ 

Insulation?
No. 84256-1-I/12

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[Samir:] There were several iterations, and I think some came to me 

through Jeff and others came directly from a couple of the employees for 

your client.

[Builders:] And were you able to review each of those iterations?

[Samir:] At a high level I reviewed the iterations. Again, I didn’t 

understand probably half the things on the proposal.

[Builders:] Did you ask questions concerning any of the items included in 

the proposals?

[Samir:] I don’t recall.

[Builders:] Did you ask for any changes to the proposals?

[Samir:] Yes. As I had previously testified to, I asked for the best pricing 

possible, and I asked for us to get to a scope of a mix of foam and batts in 

the exterior walls and ceiling.

Samir admitted that he went back and forth with Builders concerning the proposal and 

explained that “[t]he scope of work, as I understood it, was whatever was in the 

proposal” and that “we agreed to a number. That was my role. Like what am I going to 

pay you and what are you going to do.” Samir stated, “at some point we got to a final 

number and at some point a final scope.” Samir recalled “the final bid being 29,400” 

and that he did not ask for changes after that. The following exchange took place when

Samir was asked during his deposition about his text message exchange with Dale from 

Builders on September 28:

[Samir:] . . . There’s a lot of reasons why an inspection can pass, and the 

contract is different from an inspection passing. There are a lot of things 

that are optional, such as interior walls being insulated, that have nothing 

to do with an inspection.

[Builders:] And when you refer to the contract, I assume you’re referring to 

that bid in the amount of $29,400?

[Samir:] I mean if that’s considered a contract legally, then yes. I’m sorry I 

used the word “contract.” Bid, proposal, whatever it was referred to in this 
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case.”

Samir confirmed during the deposition that when he was referring to the fire sprinkler 

tenting in his September 28 text message with Builders he was referring to the August 

29 bid. Samir was asked if “that [was] coming from your review of the agreed upon 

bid?” Samir answered,

Correct. At that point I was looking at the bid going did they do everything, 

did they do it right. So I don’t believe that everything that’s in that bid ever 

got completed or may not have been needed.

Through this submitted evidence, Builders’ established the parties’ actions that, 

when viewed objectively, manifested the existence of an enforceable contract between 

Builders and the Rathods.

The burden then shifted to the Rathods, the nonmoving party, to provide 

evidence showing that a genuine issue of material fact remained. The Rathods failed to 

do so. The Rathods cite two pages of Samir’s declaration without specificity to support 

their argument that this declaration submitted in opposition to summary judgment

created a genuine question of a material fact. 

When deciding a motion for summary judgment, the trial court is required to view 

all facts and reasonable inferences therefrom in the light most favorable to the 

nonmoving party. Haley, 25 Wn. App. 2d at 224 (citing Boyd, 197 Wn. App. at 142). 

The corollary is that “on summary judgment a nonmoving party’s declaration must be 

taken as true” unless inadmissible on other grounds. Id. However, “‘when a party has 

given clear answers to unambiguous [deposition] questions which negate the existence 

of any genuine issue of material fact, that party cannot thereafter create such an issue 

with an affidavit that merely contradicts, without explanation, previously given clear 
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testimony.’” Id. at 227 (alteration in original) (internal quotation marks omitted) (quoting 

Cornish Coll. of the Arts v. 1000 Virginia Ltd. P’ship, 158 Wn. App. 203, 227, 242 P.3d 1 

(2010)). For the exception to apply, the subsequent affidavit “must ‘directly contradict’ 

the affiant’s ‘unambiguous sworn testimony’ previously given.” Id. at 228 (quoting

Taylor v. Bell, 185 Wn. App. 270, 294, 340 P.3d 951 (2014)).

Samir does not dispute the contents of the text messages, emails and deposition 

testimony submitted by Builders. He challenges summary judgment arguing that there 

was a genuine issue of material fact because he presented evidence that (1) he was 

merely engaging as an interested homeowner; (2) the August 29 bid does not list the 

Rathods as a party, and (3) it was JHCI, not himself, that contracted with Builders.

First, Samir submitted copies of communications with Builders as part of his 

declaration to support his assertion that he was acting as a homeowner and not 

someone who was managing Builders. But engaging as an interested homeowner does 

not establish an absence of a contract. And a homeowner certainly can enter into a 

contract without having to manage the daily operations of the other party.

Second, the Rathods argue that they were not listed as a party on the August 29, 

2018 bid.

3 Below, the Rathods argued that the lack of Samir’s signature on the bid 

established he did not enter into a contract. He does not maintain that argument on 

appeal. Rightly so because signature of parties are not essential to the determination of 

the existence of a contract. Jacob’s Meadow Owners Ass’n, 139 Wn. App. at 765. The 

August 29 bid does not list anyone as a “party” but does identify the Rathod residence 

as the job name and location and JHCI as the contact person. This does not overcome 

 3

The Rathods describe the bid as the “August 28, 2018 bid” but cite to the August 29, 

2018 bid. 
No. 84256-1-I/15

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Builders’ undisputed evidence of Samir’s conduct and admissions to establish a 

genuine issue of material fact.

Lastly, the Rathods appear to contend that because they allege that JHCI 

entered into a contract with Builders it raises a genuine issue of material fact as to 

whether the Rathods entered into a contract with Builders. The Rathods argue that 

because Builders first initiated their action by suing JHCI, it demonstrated that Builders 

believed it had a contract with JHCI and not the Rathods. Samir asserted in his 

declaration two key statements supporting this argument. Samir declared, “[u]pon 

information or belief, JHCI negotiated the final dollar amount, revised the scope, and 

agreed to proceed with the work.” Samir also asserted “[a]t no time did I contract with 

Builders directly. JHCI contracted with Builders.” 

 Because there may be multiple parties on one side of a contract, White v. 

Dvorak, 78 Wn. App. 105, 112, 896 P.2d 85 (1995), whether genuine issues of material 

fact remain as to whether Builders and JHCI entered into a contract is of no matter as to 

whether the Rathods presented evidence that a genuine issue of material fact remains 

as to whether the Rathods entered into a contract with Builders. The court that heard 

the summary judgment motion did not find that the existence of a contract between the 

Rathods and Builders existed because no contract existed between JHCI and Builders.

More importantly, Samir’s assertion that he, at no time, contracted with Builders 

directly is a legal statement and not a statement of fact. Moreover, his claim that JHCI 

negotiated the final dollar amount is a direct contradiction of Samir’s own unambiguous 

sworn testimony previously given during his deposition. Samir testified that he 

communicated with Builders directly regarding the changes he wanted to the proposed 
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bids, that he asked for changes to the initial proposals, and that he went back and forth 

with them before arriving at a “bottom line price” that Samir was looking for. Samir 

recalled the final bid being “29,400.” He confirmed in his text message exchange with 

Builders that he was referring to the August 29, 2018 bid to determine if Builders had 

done everything they had agreed to do. The August 29, 2018 bid totaled $29,400. 

Samir further explained that “the contract is different from an inspection passing” and 

that his use of the word “contract” was in reference to the $29,400 bid. Samir said, “if 

that’s considered a contract legally, then yes. I’m sorry I used the word ‘contract.’ Bid, 

proposal, whatever it was referred to in this case.” 

The Rathods cannot create a genuine issue of material fact simply by offering 

Samir’s declaration that merely contradicts, without explanation, his own earlier 

unambiguous, clearly given deposition.

We conclude that undisputed evidence of objective acts or manifestations of the 

parties submitted for the summary judgment hearing established the existence of an 

enforceable contract between the Rathods and Builders, and that Samir’s response did 

not establish a remaining genuine issue of material fact as to this issue. We affirm the 

summary judgment ruling.4

Attorney Fees

The Rathods next challenge the trial court’s award of attorney fees to Builders, 

asserting that it was not a reasonable award of attorney fees. 

 4 Because we affirm the summary judgment ruling, we need not address Builders’ 

alternative argument that any error at summary judgment did not prejudice the Rathods 

because they continued to litigate the existence of the contract at trial and the trial court also 

found the existence of a contract.
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The standard of review for an award of costs and attorney fees is a two-step 

process. Estep v. Hamilton, 148 Wn. App. 246, 259, 201 P.3d 331 (2008). We first 

review a trial court’s legal basis for awarding attorney fees de novo. Cook v. Brateng, 

180 Wn. App. 368, 375, 321 P.3d 1255 (2014). Trial courts may award a party attorney 

fees and costs when authorized by a contract, statute, or a recognized ground in equity. 

Berryman v. Metcalf, 177 Wn. App. 644, 656, 312 P.3d 745 (2013). If there is authority 

to award costs and fees, we then review the decision to award those fees and costs 

under an abuse of discretion standard. Cook, 180 Wn. App. at 375.

The final bid, which the trial court found to be the contract between the Rathods

and Builders, states “Builders’ Insulation shall have the right to recover reasonable 

attorney’s fees and expenses associated with the collection of invoices not paid in full 

within [30 days from the date of the invoice].” The Rathods do not challenge that the 

trial court had authority to award attorney fees.

Washington State calculates the quantity of fees and costs a party is entitled to 

using the “lodestar” method. Mahler v. Szucs, 135 Wn.2d 398, 433, 957 P.2d 632 

(1998). Under this methodology, the party seeking fees bears the burden of 

demonstrating the fees’ reasonableness and must provide contemporaneous records 

documenting hours worked, describing the work performed, and noting the experience 

of the attorney who performed it. Mahler, 135 Wn.2d at 433-34. “The court must limit 

the lodestar to hours reasonably expended, and should therefore discount hours spent 

on unsuccessful claims, duplicated effort, or otherwise unproductive time.” Bowers v. 

Transamerica Title Ins., 100 Wn.2d 581, 597, 675 P.2d 193 (1983). 
No. 84256-1-I/18

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To support an award of reasonable attorney fees, the trial court is required to 

create a record adequate to support review, which entails making findings of fact and 

conclusions of law on the lodestar elements. Mahler v. Szucs, 135 Wn.2d at 433. 

Though the trial court doesn’t require a detailed, “hour-by-hour analysis of each lawyer’s 

time sheets,” it generally must provide insight into its exercise of discretion. Taliesen 

Corp. v. Razore Land Co., 135 Wn. App. 106, 146-47, 144 P.3d 1185 (2006); Steele v. 

Lundgren, 96 Wn. App. 773, 779-82, 982 P.2d 619 (1999). Failure to make an 

adequate record will result in remand. Mahler, 135 Wn.2d at 435.

While a “vital” consideration in the lodestar method is the “size of the amount in 

dispute in relation to the fees requested,” this court “will not overturn a large attorney fee 

award in civil litigation merely because the amount at stake in the case is small.” 

Berryman v. Metcalf, 177 Wn. App. 644, 660, 312 P.3d 745 (2013) (citing Mahler, 135 

Wn.2d at 433). The court may award fees in excess of the damages if it is warranted by 

the facts of the case. Pub. Utils. Dist. 1 of Grays Harbor County v. Crea, 88 Wn. App. 

390, P.2d 722 (1997).

Among other arguments made, the Rathods challenged the reasonableness of 

Builders sending two attorneys to attend a five-week trial when they only presented 

evidence one day. The trial court initially awarded Builders’ attorney fees as requested 

without any explanation other than incorporating “the reasons stated in Builders’ briefs 

in support thereof.” The trial court later, in denying the Rathods’ motion for 

reconsideration, supplemented its reasoning in awarding attorney fees and made 

findings including that “Builders appeared to try to limit its costs nonetheless, including 

by having only one attorney attend trial at a time.” The Rathods challenge this finding. 
No. 84256-1-I/19

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Trial was held from March 28, 2022 to May 3, 2022. Builders’ attorneys’ billing 

records indicate that both attorneys Thomas Larkin and David Guild II attended every 

trial day, except for on April 3 when just Larkin attended, and April 14, when just Guild 

attended. They did not always bill the same number of hours and Guild routinely billed 

for trial-related work on the same day. Because Guild’s hours are not further 

segregated it is unknown how much time was actually spent attending trial. On appeal, 

Builders do not assert that only one attorney attended trial, and instead explain that “the 

entries for the days indicated include time spent doing related trial preparation work.” 

The total amount billed for both attorneys on the days they both attended trial is 

$77,976. While the record suggests that total amount is not reflective of just trial 

attendance, it is not an insignificant amount and the trial court based its award of 

attorney fees, at least, in part on a fact not supported in the record. The trial court 

abused its discretion in awarding attorney fees for this reason. Because we reverse the 

award of attorney fees and remand for reconsideration, we need not address the 

Rathods’ other arguments. 

Attorney Fees on Appeal

Builders requests fees on appeal under RAP 18.1 and the contract with the 

Rathods. A party is entitled to an award of attorney fees on appeal if a contract, statute, 

or recognized ground of equity permits recovery of attorney fees at trial and the party is 

the substantially prevailing party on appeal. Hwang v. McMahill, 103 Wn. App. 945, 

954, 15 P.3d 172 (2000). Because we reverse the award of attorney fees and remand, 

we deny Builders’ request for attorney fees on appeal.
No. 84256-1-I/20

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We affirm the trial court’s grant of summary judgment, but reverse the award of 

attorney fees and remand for reconsideration.

WE CONCUR: