IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN CARVILLE and JANE DOE 

### ) No. 80106-6-I CARVILLE, husband and wife and the 

### ) marital community comprised thereof, 

### ) DIVISION ONE 

### ) Appellant, 

### ) UNPUBLISHED OPINION
v. 

### )

) JOHN RODIUS, an individual d/b/a 

### ) JOHN WAYNE SPECIALTY, 

### ) ) Respondent.

______________________________ 

### ) FILED: September 23, 2019 HAZELRIGG-HERNANDEZ, J.

— Jon Carville seeks reversal and vacation of a judgment for damages based on the reasonable rental value of a piece of heavy machinery. He raises several arguments in support of his appeal, but chiefly argues that the court used the improper measure of damages for a conversion claim and the award was not supported by substantial evidence. Because the
measure ofdamageswas permitted forthat cause ofaction and sufficientevidence supported the amount ofthe award, we affirm.
FACTS John Rodius brought suit against Jon CarviIle, alleging that Carville had refused to return a 2002 John Deere 200CLC tractor that Rodius owned. The complaint included claims for breach ofcontract, conversion, trespass to chattels,No. 80106-6-1/2

and tortious interference with a business contract; a request for replevin; and a requestfor“compensatory and general damages as may be proven attrial.” In his trial brief, Rodius identified his relief sought as “[j]udgment for damages related to loss of use of the 2002 John Deere 200 CLC Tractor in an amountto be proven attrial” as well as “[j]udgmentfordamages related to loss of business.” He argued in the briefthat hewas entitled to “damages associated with loss of use and/or unrealized profits[,]” and cited thefollowing passagefrom Potter
v. Washincdon State Patrol: Generally, the measure ofdamages forconversion is thefair market value ofthe property converted

. . . An owner is also entitled to loss of use damages forthe period of time during which the ownerwas wrongfully deprived of the converted property

. Finally, consequential damages may be available in some circumstances. Dennis v. Southworth, 2 Wn. App. 115, 124, 467 P.2d 330 (1970) (allowing damages forthe loss of profits or reasonable rental value ofconverted property). 165 Wn.2d 67, 85—86, 196 P.3d 691 (2008) (citations omitted). At a bench trial in April 2018, Rodius testified that he had taken a “200 size excavator” to Carville’s property to perform some work in late August 2016. The excavator remained on the property while the work was ongoing because the machine was too large to move easily. He testified that the last time he had possession ofthe excavatorwas in September or early Octoberof2016, when he
was refused entry onto Carville’s property. Rodiustestified aboutthe effectthatthe loss ofuse ofthe excavator had on his business. He explained thatthe excavatorwas “a veryversatile machine” that he used “every single day, almost, in everything I do[,]” including digging stumps, logging, stacking brush, loading containers, and building roads. He said that he

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typically used the excavator in 80 percent of hisjobs, which equated to 80 percent of his revenue. He testified that he had fivejobs lined up before he lost possession ofthe excavatorthat he was unableto perform without it. At onejob, he testified that he would have harvested 12 loads of cedar and earned $20,000. At another, he testified that he would have harvested 40 loads of logs and built a mile of road, for which he would have been compensated $50,000. He was unable to say how many jobs he had lost because he did not want to waste customers’ time by pursuing work hewould not be ableto completewithoutthe machine. Rodius also testified that he would normally ship out one container ofwood per month, which would earn him a net profit of $20,000 to $40,000, depending on the species of wood. He said that he had only been ableto do this once since losing possession of the excavator by renting another machine. He testified that he had rented machines to dojobs at least 12 times. He said that a comparable machine cost $2,600 to rentfor a weekend, or “sometimes theywill rent a 200 size machine for about $12,000 a month, plus the additional fees that come with it.” He testified that he had spent a total of$50,000 renting machines to replace the excavator. During the trial, Carville requested a two-hour continuance to attempt to locate a subpoenaed witness who had not appeared in courtto testify. The court indicated that it would allow the witness to testify after the lunch break, but said that “if [the witness] isn’t here at one o’clock, he is nottestifying.” Afterthe lunch break, Carville informed the court that the witness still had not arrived and asked for“as many minutes asthe [c]ourtwill allow meto call him repeatedly.” The court

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responded, “You had the entire lunch break. He is two and a half hours late. This is notyourfaultthat he is not here, butwe are notgoing towaitfor him any longer.” Rodius argued in closing aboutthe amount ofexpected profit he had lost in the absence of the excavator and the rental rates of substftute machines. He argued thatany lackofspecificitydid not meanthat hewas notentitled to damages and that there was no testimony that his numbers were inflated, unrealistic, or inaccurate. In an oral ruling,1 the courtfoundthat itcould not“reasonablyand accurately calculate damages based upon lost profits given the evidence presented here.” However, the court noted that “[t]he law is pretty clearthatthere is more than one way of calculating damages for loss of use of a chattel, and one of those is the rental value of a similar chattel, in this case a similar piece of equipment.” The court accepted Rodius’ testimony ofthe monthly rental cost of a similar machine and awarded damages to Rodius of$12,000 per month from September20, 2016 until the day the excavatorwas returned. Ajudgment was subsequently entered in the amount of$229,200. Carville filed a motion for reconsideration, elimination of the award of damages, and a new trial under CR 59. The court denied the motion. Carville timely appealed thejudgment and order denying motion for reconsideration.

1 Written findings offactand conclusions oflaware notof recordwith this court.
-4-No. 801 06-6-1/5 DISCUSSION Carville contends that the trial court erred in ordering damages based on the reasonable rental value of the excavator, refusing a continuance when his witness did not appear, and denying his motion for reconsideration or newtrial. Damages A. Standard of Review On appeal of bench trials, “respondents are entitled to the benefit of all evidence and reasonable inference therefrom in support of the findings of fact entered by the trial court.” Mason v. Mortq. Am., Inc., 114 Wn.2d 842, 853, 792 P.2d 142 (1990) (quoting Lidstrand v. Silvercrest Indus., 28 Wn. App. 359, 364, 623 P.2d 710 (1981)). When a trial court has weighed the evidence in a bench trial, our review is limited to determining whethersubstantial evidence supportsthe trial court’sfindings offact and, ifso, whetherthefindings supportthe conclusions of law. City of Tacoma v. State, 117 Wn.2d 348, 361, 816 P.2d 7 (1991). Substantial evidence is evidence sufficient to persuade a rational, fair-minded person ofthe truth ofthe finding. In re Estate ofJones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004). “[lIt is notthe function ofan appellate courtto substitute itsjudgment forthat of the trial court orto weigh the evidence or the credibility ofwitnesses.” Davisv. Dep’tofLaborand Indus., 94Wn.2d 119, 124, 615 P.2d 1279 (1980). We review questions of law and conclusions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).

-5-No. 80106-6-1/6 B. Notice Carvillefirstcontendsthatthetrial court’s use ofthe reasonable rental value
as a measure ofdamageswas inappropriate because he did not receive adequate notice thatthis measure would be considered. He argues that Rodius’ complaint only identified “significant business loss” asthe source ofhis damages, and Rodius did not request damages based on the reasonable rental value. Rodius responds that his complaint and trial briefwere sufficientto apprise Carville of his requestto be “made wholefortheyearand a half hewas deprived ofaccess to his property.” Carville cites two authorities in support of this argument. Civil Rule 8(a) requires pleadingsto contain “(1) a short and plain statementofthe claim showing thatthe pleader is entitled to relief and (2) a demand forjudgment forthe reliefto which the pleader deems the pleader is entitled.” He also cites Lewis v. Bell for the proposition that, “[a]lthough inexpert pleading has been allowed underthe civil rule, insufficient pleading has not. A pleading is insufficientwhen it does not give the opposing party fair notice of what the claim is and the ground upon which it rests.” 45 Wn. App. 192, 197, 724 P.2d 425 (1986). In his argument in reply, he also citesthefollowing languagefrom Kirbyv. City ofTacoma: “[a] partywho does not plead a cause ofaction ortheory of recovery cannotfinesse the issue by later inserting thetheory intotrial briefs and contending itwas in the case all along.” 124 Wn. App. 454, 472, 98 P.3d 827 (2004) (quoting Dewey v. Tacomma Sch. Dist., No. 10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999)). “Under our liberal rules of procedure, pleadings are primarily intended to give notice to the court and the opponent of the general nature of the claim

-6-No. 80106-6-117

asserted.” Lewis, 45Wn. App. at 197. Becausetheirpurpose isto allowtrial courts to properly decide cases on the merits, rather than to “erect formal and burdensome impediments to the litigation process[,]” pleadings are to be liberally construed. State v. Adams, 107 Wn.2d 611, 620, 732 P.2d 149 (1987). In Lewis, the court found that the pleadings were insufficient to provide noticetothe defendantsthatthe plaintiffswereseeking reliefforan alleged tortious assault when the only cause of action pleaded in the complaint was the tort of outrage, and all affidavits and memoranda submitted tothe courtaddressed issues involving outrage and not assault. 45 Wn. App. at 197. In Kirby, the court found thatthe necessaryelements ofa FirstAmendmentclaim could not befairly inferred from pleadings that did not contain the terms “FirstAmendment” or “free speech.” 124 Wn App. at 470-471 (citing Dewey, 95 Wn. App. at 23). In Adams, the Washington Supreme Courtfound that the pleadings provided sufficient notice of the State’s intentto seeka moneyjudgment, even though its original pleadings did not seek such relief, when its brief in support ofsummaryjudgment stated, “[alt a minimum, ajudgmentagainstthe employees forthe amountoftheiroverpayments should be entered.” 107 Wn.2d at620. Here, Rodius stated his claims and request for monetary damages in his complaint, and specified in his trial briefthat he sought damages related to loss of
use and loss of business. This specification did not constitute a new cause of action or theory of recovery. Carville cites no authority for the proposition that pleadings must provide notice ofthe measure of damages that the court will use to calculate the requested relief. “Where no authorities are cited in support of a

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proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle Post lntelliqencer, 6OWn.2d 122, 126, 372 P.2d 193 (1962). This argumentfails.
C. Election of Remedies Carville next contends that the use of the reasonable rental value as a measure of damages is barred by the election of remedies doctrine. He argues that Rodius elected to pursue lost profits rather than reasonable rental value as the measure of damages, and therefore any claim for reasonable rental value is barred.The election of remedies doctrine exists to prevent double recoveryforthe
samewrong. Bremerton Cent. Lions Club, Inc. v. Manke LumberCo., 25Wn. App. 1, 5, 604 P.2d 1325 (1979). “Itseeksto preventa partyfrom asserting inconsistent positions in orderto recovermore than thevalue ofthe harm suffered.” A party is not bound by an election of remedies unless two or more remedies exist at the time ofthe election, the remedies are repugnant and inconsistentwith each other, and the party to be bound has chosen one ofthem. Lange v. Town ofWoodway, 79 Wn.2d 45, 49, 483 P.2d 116 (1971). If a party pleads different and additional grounds for resortto the same remedy, the election of remedies doctrine does not apply. Barberv. Rochester, 52 Wn.2d 691, 694—95, 328 P.2d 711(1958) (holding thatthe trial court erred in requiring an election between two different grounds for rescission ofa contract).

-8-No. 80106-6-1/9 Here, as in Barber, the plaintiff pleaded two different grounds forthe same remedy: monetary damages. Thus, the election of remedies doctrine does not apply.
D. Substantial Evidence Carville also contends thatthe trial court’s award ofdamages based on the reasonable rental value was not supported by substantial evidence. “‘Generally the appropriate measure of damages for a given cause of action is a question of law, reviewed de novo.” Shoemake ex rel. Guardian v. Ferrer, 168 Wn.2d 193, 198, 225 P.3d 990 (2010) (quoting Womack v. Von Rardon, 133 Wn. App. 254, 263, 135 P.3d 542 (2006)). However, the amount of damages awarded under a specific measure is a discretionary determination for the trier of fact, provided it falls within the range of relevant evidence. Womack, 133 Wn. App. at 262. Generally, the appropriate measure ofdamages forconversion of personal property is the fair market value of the property at the time of the conversion. Dennis, 2Wn. App. at 124. However, in some instances, a party may be awarded consequential damages represented by lost profits orthe reasonable rental value ofthe equipment for a reasonable time in addition to the fair market value ofthe property. jçj~ at 124—25 (holding that the trial court was justified in allowing consequential damageswhere the plaintiffwas unable to obtain a replacementfor the converted tractor due to his financial circumstances and the defendant was made aware that consequential damages would commence at the time of the conversion).

-9-No. 80106-6-1/10 “The guiding principle oftort law is to make the injured party as whole as possible through pecuniary compensation” without conferring a windfall. Shoemake, 168 Wn.2d at 198 (quoting 16 David K. DeWolf & Keller W. Allen, Wash. Practice: Tort Law and Practice 

### § 5.1, at 172 (3d ed. 2006)). Although “damages must be proved with reasonable certainty[,j” this doctrine “is concerned
more with the fact of damage than with the extent or amount of damage.” Mutual of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 715, 315 P.3d 1143 (2013) (quoting Lewis River Golf, Inc. v. CM. Scott & Sons, 120 Wn.2d 712, 717, 845 P.2d 987 (1993)). Once the plaintiffestablishes the fact ofthe loss by a preponderance ofthe evidence, theywill not be required to prove an exactamount ofdamages to recover. ~ at 715. The court heard testimony that Rodius had operated his own company performing logging and woodworkforover30 years. It heard him testify aboutthe expected lifetime and maintenance of machines like the excavator. He testified that he rented machinesto replacethe excavatoron at leasttwelve occasions. He specified the cost to rent the same type of excavator as the one he owned per weekend, per hour with an operator, and per month without an operator. The record on appeal does not show that this testimony was contradicted. The court also specifically noted that it “was left with an abiding conclusion that Mr. Rodius
was being truthful when he testified today, in all respects.” Regarding the issue of damages, the court stated: Mr. Rodius testified that he determined what it would cost to rent a 200 size machine, thatwas histestimony.

. . 200 size machine, that’s whatwas unlawfully withheld from him, was a John Deere 200 size machine, and the number Mr. Rodius gave was $12,000 a month. I

-10-No. 80106-6-I/Il acceptthat. I believe him

. . . thatwould bewhatthe rental costwould be. Under Dennis, the court was permitted to order consequential damages of lost profits or reasonable rental value in addition to the return ofthe excavator as proper damages for conversion. The court did not err in using this as the appropriate measure of damages. Turning to the sufficiency ofthe evidence for the amount ofdamages, the courtexpresslyfound Rodius to be a crediblewitness regarding the rental cost ofthe same type ofexcavatorthat he owned. A rational, fair-minded person could conclude thatthis rental valuation would be the samefor Rodius’ machine, which he testified was in working order. The evidence was sufficientto supportthe amount ofdamages imposed.2
II. Motion for Continuance Carville contends that the trial court erred in denying his motion for a continuance when his subpoenaed witness did not appearto testify. He argues thatthis prevented him from having afairtrial and that Rodiuswould not have been prejudiced by the delay. Carville’s only citation to any authority in this section is the argumentthat “[a] newtrial is warranted under CR 59(a)(l) and (9).” The Rules of Appellate Procedure require appellants to provide an “argument in support ofthe issues presented for review, togetherwith citations to legal authority and references to relevant parts of the record.” RAP 1O.3(a)(6).

2 Carville also contends thatthe trial courtabused its discretion in denying his motion for reconsideration. Becausewe have found thatCarville received sufficient notice ofthe claims and remedies sought, the courtapplied a permissible measure ofdamages, and sufficientevidence supported the amountofdamages imposed, the court necessarilydid notabuse its discretion in denying the motion for reconsideration. -Il

-No. 80106-6-1/12

“The purpose of the rule and related rules ‘is to enable the court and opposing counsel efficiently and expeditiously to review the accuracy of the factual statements made in the briefs and efficiently and expeditiously to review the relevant legal authority.” Statev. Cox, 109Wn. App. 937, 943, 38 P.3d 371 (2002) (quoting Hurlbert v. Gordon, 64 Wn. App. 386, 400, 824 P.2d 1238 (1992)). Consistentwith this premise, “[w}e do not consider conclusory arguments that do not cite authority.” West v. Thurston County., 168 Wn. App. 162, 187, 275 P.3d 1200 (2012). Because Carville has failed to support his second assignment oferrorwith sufficient argument and legal authority, we decline to consider it.
Ill. Attorney Fees Rodius contendsthat he is entitled to attorney’sfees on appeal becausethe appeal is frivolous. “Under RAP 18.9(a), we can award attorneyfees forthe filing offrivolous appeals.” Stilesv. Kearney, 168Wn. App. 250, 267, 277 P.3d 9 (2012). An appeal is frivolous if it presents no debatable issues upon which reasonable minds could differ and it is so lacking in merit that there was no reasonable possibility of reversal. In re Marriacie of Foley, 84 Wn. App. 839, 847, 930 P.2d 929 (1997). Any doubts as to whetherthe appeal is frivolous should be resolved in favorofthe appellant. Pub. Emps. Mut. Ins. Co. v. Rash, 48Wn. App. 701, 706, 740 P.2d 370 (1987). Here, although Carville does not provide adequate support forsome of his arguments, his appeal as awhole is not so devoid of merit as to be frivolous. The requestforattorney’s fees under RAP 18.9(a) is denied.

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Affirmed.

WE CONCUR:

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