### FILED JAN 16,2014 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE KEITH MILLER, a married individual, ) No. 31445-6-111 

### ) Appellant, ) 

### ) 

## v. ) ) PAUL M. WOLFF CO., a foreign ) PUBLISHED OPINION corporation; and CURTIS BEESLEY, an ) individual, ) 

### ) Respondents. ) BROWN, 

### J.

- Paul M. Wolff Company (PMW) appeals thetrial court'sjudgment granted to Keith Miller following Mr. Miller's trial de novo following mandatory arbitration. Mr. Millerworked for PMW as a commissioned sales representative. After he resigned and unsuccessfully offered to complete unfinished jobs, he sued PMWand its president, Curtis Beesley (collectively PMW) for unpaid commissions. An arbitrator sided with Mr. Miller and awarded him wage damages, but denied attorney fees for unpaid wages. Unsatisfied, Mr. Miller pursued a trial de novowhere he was awarded slightly lesswage damages, but received his requested attorneyfees. PMW contends the court erred in finding Mr. Millerwas entitled to commissions underthe procuring cause doctrine, in concluding Mr. Miller improved his position attrial, and in awarding attorneyfees under RCW49.48.030. Wefind no error, and affirm.No. 31445-6-111 Millerv. PaulM. WolffCo.
FACTS Thefacts are drawn largely from the trial court's unchallenged findings offact. PMW is a subcontractor, specializing in concrete finishing services. It employsfield sales representatives who are responsible forfacilitating and overseeing projects within theirterritories. Ifthe project is awarded to PMW, the field sales representative is responsible for managing the company's performance underthe contract through completion. Managing PMW's performancethrough completion ofthe project is considered thefinal step in the sales representative's performance. PMW has historically paid its sales representatives a 15 percent commission on projectsthat meet
a 35 percent gross profit threshold. Field sales representatives are paid commissions after PMW completes its work and receives payment. PMW employed Mr. Miller as a field sales representative for several years until January 9, 2009. Then, Mr. Miller resigned to operate his own concrete company, Final Concrete, LLC. PMW claims the purpose of Final Concrete wasto compete with PMW; however, PMW's unlawful competition claims were dismissed in summaryjudgment and the one issue appealed was rejected by Division Two ofthis court in an unpublished opinion. See Miller v. PaulM. WolffCo., noted at 165Wn. App. 1020,2011 WL 6916485, at *1. When he resigned, Mr. Miller unsuccessfully offered to complete his unfinished projects for PMW. The parties' employment contract does not address whether, and to what extent, post-termination commissions would be paid. On January 12, 2009, Mr.



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### No. 31445-6-111 Millerv. PaulM. 

### WolffCo.
Miller sought commissions on at least 

### 14 at-issue projects listed in the court's findings of fact. PMW assigned other employees to finish these projects, which took several months to complete after Mr. Miller's resignation. The 

### 35 percent gross profit threshold was met in 

### 10 ofthe unfinished projects. PMW paid 

### $25,862.87 to anotherfield sales representative in commissions on eight ofthese projects. Mr. Miller had unsuccessfully requested 

### $27,036.21 for these projects when he sued PMW, pal11y requesting equitable relief underthe procuring cause doctrine. The parties proceeded to mandatory arbitration. The arbitrator concluded Mr. Millerwas entitled to recovery underthe procuring cause doctrine and awarded him 

### $22,802.84, but denied his request for attorney fees and costs under RCW

### 49.48.030. The arbitrator concluded the award flowed from an equitable remedy and was not for wages and salary owed. Mr. Miller requested atrial de novo. Aftertrial, the court awarded Mr. Miller 

### $21,628.97 for his procuring cause doctrine claim, 

### $897.95 in costs, and 

### $74,662.00 in attorney fees. The court concluded Mr. Miller improved his position on trial de novo because he was awarded attorney fees attrial, but the court noted "even if

### only the fees incurred through arbitration, but not those incurred thereafter, are used in making the comparison

...the difference between the two actual damage awards is so small (Le., 

### $1,173.87)." Clerk's Papers (CP) at

### 494. PMW appealed.



### 3No. 31445-6-111 Millerv. PaulM. WolffCo.
ANALYSIS A. Procuring Cause The issue iswhetherthe trial court erred in concluding Mr. Millerwas entitled to damages underthe procuring cause doctrine. PMW contends Mr. Miller'sfailure to
oversee the completion ofthe projects in question and his unclean hands preclude a recovery in equity. Whether a sales person's activities were the procuring cause ofthe sale is fact specific. Zelensky

### v. Viking Equip. Co., 70 Wn.2d 78,91,422 P.2d 293 (1966). We review a conclusion of law based on findings offact to determine whetherthe trial court's 'findings are supported by substantial evidence, and ifso, whetherthose findings support the conclusions of law. Cantu 

### v. Dep't ofLabor

### & Indus., 168 Wn. App. 14,21, 277 P.3d 685 (2012). Substantial evidence is evidence ofsufficient quantityto persuade a fair-minded, rational person ofthe truth ofthe declared premise. Bering

### v. SHARE, 106Wn.2d 212, 220, 721 P.2d 918 (1986). "The procuring cause rule states thatwhen a party is employed to procure a purchaser

...to whom a sale is eventually made, he is entitled to a commission

.. '. if he was the procuring cause ofthe sale." Willis v. Champlain Cable Corp., 109 Wn.2d 747,754,748 P.2d 621 (1998). A broker is the procuring cause oragentwhen he or she sets in motion the series ofevents culminating in a sale. RogerCrane 

### &Assoc., Inc. v. Felice, 74 Wn. App. 769, 776, 875 P.2d 705 (1994) (citing Bonanza RealEstate, Inc. v. CrOUCh, 10Wn. App. 380, 385, 517 P.2d 1371 (1974». When an employment



### 4No. 31445-6-111 Millerv. PaulM. WolffCo. relationship ends, the employer "cannotterminate an agent's right to compensation if he
or she caused the sale." Syputa v. DruckInc., 90 Wn. App. 638, 645,954 P.2d 279 (1998). The procuring cause doctrine "is essentially an equitable doctrine." Id. at 649. It is based .Ilupon the equitable maxim that the principalshallnotbepennitted to enrich himselfat the expense ofthe agentorbroker, whose services have inured to his benefit.'" Feeley v. Mullikin, 44 Wn.2d 680, 687, 269 P.2d 828 (1954) (quoting Grace RealtyCo. v. Peytavin Planting Co., 156 La. 93, 100 So. 62 (1924». Trial courts have broad discretion to fashion an equitable remecty, reviewable for abuse ofdiscretion. Ehsani v. McCullough Family P'ship, 160 Wn.2d 586, 589,159 P.3d 407 (2007). Ifa written contract expressly provides "how commissions will be awarded when
an employee or agent is terminated," the procuring cause rule is inapplicable. Willis, 109Wn.2d at755. In the absence ofa contractual provision specifying otherwise, the procuring cause doctrine acts as a gap filler. Indus. Representatives, Inc. v. CP Clare Corp.,74 F.3d 128 (7th Cir. 1996). Here, in finding offact 3, which is unchallenged and therefore a verity on appeal, 1 the court found thatthe parties' contract does not specify whether commissions would be paid for projects thatwere still in progress when employmerit ended. Thus, the procuring cause doctrine applies. PMW argues to prove procuring cause in this situation, Mr. Miller must show he completed five steps that begins with securing the contract and ends with final payment.

1 Jensen V. Lake Jane Estates, 165Wn. App. 100, 105,267 P.3d 435 (2011). 5No. 31445-6-111 Millerv. PaulM. WolffCo. But, "[t]he standard forthe procuring cause doctrine is activitythat sets in motion the chain ofevents or negotiations culminating in a sale." Syputa, 90 Wn. App. at 646. "Thus, an agent receives commissions on sales when the sales 'resulted from the agent's efforts.'" Id. (quoting Willis, 109Wn.2d at 754). In Syputa, a former sales agent sued an aerospacefirm to recover posttermination commissions. 90 Wn. App. at 638. The trial court dismissed the claim in summaryjudgment. Id. Division One ofthis court reversed and remanded, holding issues of material fact existed as to whetherthe sales agentwasthe procuring cause ofthe company's contracts with an airplane manufacturer. Id. at 649-50. Here, based on the unchallenged findings offact, Mr. Miller "located the at-issue jobs, submitted bids thereon, and secured binding contracts with the customers." CP at 443 (finding offact 10). Ten ofthe 14 at-issuejobs metthe 35 percent gross profit threshold. Commissions on these 10jobstotaled approximately $27,000. Thetrial court discounted the total commissions by 20 percent when making its award to Mr. Miller. PMWargues the procuring cause doctrine does not apply when an employee resigns. While Washington courts have not specifically addressed this issue, courts in Illinois and Florida have allowed damages underthe procuring cause doctrine for employees who have resigned from their sales positions. See Scheduling Corp. of Am.


### v. MasseI/o, 456 N.E.2d 298, 305 (III. 1983); UnitedFarm AgencyofFla., Inc. 

### v. DKLS, Inc., 560 SO.2d 1212, 1213 (Fla. 1990). Because Washington courts have not



### 6No. 31445-6-111 

### Millerv. PaulM. WolffCo. expressly required an employee to be terminated to be eligible for relief underthe procuring cause doctrine and because the Illinois and Florida cases are persuasive, we hold that resignation is not a precluding factorfor recovery underthe procuring cause doctrine in Washington. PMW next argues recovery is precluded because Mr. Miller has unclean hands. It is well settled that a partywith unclean hands cannot recover in equity. J.L. 

### Cooper& 

### Co. v. AnchorSec. Co., 9 Wn.2d 45,73,113 P.2d 845 (1941). PMW complains Mr. Miller'S conduct in forming another concrete company was unjust and in bad faith, but PMW'swrongful competition claims were summarily dismissed and the one issue appealed was rejected by Division Two ofthis court. 

### See Miller, 2011 WL 6916485, at *1. In sum, based on the 

### Syputa and 

### Willis standard, Mr. Millerwas the procuring
cause ofthe at-issue PMW contracts. Thus, the trial court had tenable grounds to apply the procuring cause doctrine in fashioning an equitable remedy. Therefore, we conclude the trial court did notabuse its discretion. B. Attorney Fees The issue is whetherthe trial court erred in denying PMW's request for attorney fees, but granting Mr. Miller's request aftertrial. PMW contends fees were unwarranted because Mr. Miller did not improve his position on trial de novo. PMW argues RCW 49.48.030 does not provide a basis for Mr. Miller's recovery.



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We review the trial court's application ofcourt rules and statutes authorizing attorney fee awards de novo as a question of law. 

### Niccum v. Enquist, 175Wn.2d 441, 446,286 P.3d 966 (2012). In Washington, a party may recover attorney fees solely when authorized by statute, a recognized ground ofequity, or party agreement. 

### Id. RCW 7.06.060(1) and SUPERIOR COURT MANDATORYARBITRATION RULES (MAR) 7.3 direct courts to assess costs and reasonable attorney fees "against a party who appeals the [arbitrator's] award and fails to improve" the party's position atthe trial de
novo. RCW 7.06.060(1) provides, "The superior court shall assess costs and reasonable attorneys' fees against a partywho appeals the award and fails to improve his or her position on the trial de novo." Likewise, MAR 7.3 states, "The court shall
assess costs and reasonable attorneyfees against a party who appeals the award and fails to improve the party's position on the trial de novo." "RCW 7.06.060(1) and MAR 7.3's purposes are to ease court congestion, encourage settlement, and discourage meritless appeals." 

### Huntington v. Mueller, 175 Wn. App. 77, 81.302 P.3d 530 (2013) (citing 

### Niccum. 175Wn.2d at451). Here, the trial court's award ofwage damages was less than the arbitrator's award, butthe court awarded Mr. Miller attorney fees and costs for a total award substantially morethan the arbitration award. PMW contends attorney fees cannot be considered in assessing an improvement in position. We disagree. In 

### Mei Tran v. Yu Han Yu, 118Wn. App. 607, 612, 75 P.3d 970 (2003). the court considered whether a party appealing an arbitration award failed to improve her position



### 8No. 31445-6-111 Miller v. PaulM. WolffCo.
at a trial de novo when the compensatory damages awarded at trial were less than those awarded at arbitration, but thejudgmentwas higher because ofthe court's award ofstatutory costs and CR 37 sanctions. The court held that a court should "compare cornparables" to determinewhether a partyfailed to improve its position. Mei Tran, 118 Wn. App. at612. Accordingly, a court would compare the compensatory damages awarded by the arbitrator with the compensatory damages awarded attrial. Id. The courtwould not include awards for statutory costs and sanctions becausethose costs
were not before the arbitrator and were not "comparable"to the compensatory damages awarded bythe arbitrator. Id. at 615-16. Indeed, the court noted, a party would invariably improve his or her position ifcosts such as "attomey fees" and interestwere taken into account. Id. at 612. In Haley v. Highland, 142 Wn.2d 135, 154,12 P.3d 119 (2000), our Supreme Court stated, "We generallyagree with the Court ofAppeals' viewthat only comparables are to be compared," butthe courtfound it unnecessary in Haleyto adopt
a bright-line rule that "attorney fee awards have no place in making an MAR 7.3 determination." Id. (emphasis added). Later, in Niccum, 175 Wn.2d at448, our Supreme Court clarified, "[T]his court has not adopted the doctrine ofcomparing comparables." In Niccum, the issue was whether costs could be considered in comparing ajury award (which included costs) with an offer ofcompromise (which did not). The courtfound itwould be unfairto



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# \No. 31445-6-111 Millerv. Paul M. WolffCo.
compare the two because a party is not entitled to costs in connection with an offerof compromise under RCW 7.06.060(1). 

### Id. at 449. Ifwe were to compare solely the compensatory damages in this case, Mr. Miller did not improve his position on trial de novo. But, Mr. Millerwas awarded attorneyfees
on trial de novo afterthe arbitrator denied attorney fees based on the exact argument thatwas successful attrial. The situation may be different ifattorney fees were not requested at arbitration. Indeed, to truly compare the comparables, the success of

. aggregate claims asserted should be considered in deciding 

### if Mr. Miller "improve[d]

...

[his] position." MAR 7.3; RCW 7.06.060(1). Given ourdiscussion so far, we conclude the trial court properly concluded Mr. Miller improved his position and deny PMW's requestfor attorney fees. Next, PMW argues RCW49.48.030 applies to wages not damages in equity. As previously disclJssed, we review a trial court's basis for awarding attorney fees de novo. Niccum, 175 Wn.2d at446. RCW49.48.030 provides when "any person is successful in recovering judgment forwages orsalary owed to him or her, reasonable attorney's fees

... shall be assessed against said employer orformer employer." RCW49.48.030 is a remedial statute we must liberally construe in favor ofthe employee. Int'lAss'n ofFire Fighters, Local

### 46 v. CityofEverett, 146Wn.2d 29, 34,42 P.3d 1265 (2002). While RCW 49.48.030 uses the term "wages," Division One ofthis court has held that wages include

10No. 31445-6-111 Millerv. PaulM. WolffCo.
commissions. Oautel

### v. Heritage Home Ctr., Inc., 89Wn. App. 148, 153,948 P.2d 397 (1997).Equitable wage recoveries do not preclude an award ofattorney fees under RCW 49.48.030, contrary to PMW's arguments. The legislature did not place that limit in RCW 49.48.030. Our primary goal on review is to determine and give effect to the legislature's intent and purpose in creating the statute. Woods 

### v. Kittitas County, 162 Wn.2d 597, 607,174 P.3d 25 (2007). Ifthe statute's meaning is plain on its face, then
we must give effectto that plain meaning as an expression of legislative intent. Id. We give meaning to everyword and interpret the statute aswritten. Enter. Leasing, Inc. v. Cityof Tacoma Fin. Oep't, 139Wn.2d 546, 552, 988 P.2d 961 (1999). RCW49.48.030 plainly states ifan employee recovers a judgmentforwages owing then attorneyfees shall be assessed againstthe employer. Interpreting the statute as written, the trial court did not err in awarding attorneyfees to Mr. Miller. Lastly, PMW requests attorney fees on appeal under MAR 7.3 and RCW 7.06.060(1). Both the rule and statute allow recovery on appeal 

### iffees werejustified below. Yoon v. Keeling, 91 Wn. App. 302, 306, 956 P.2d 1116 (1998). Here, however,
no basis exists for an attorney fee award to PMW below and, thus, no basis exists on appeal. Mr. Miller requests fees for this appeal under RCW49.48.030. In McGinnity v. AutoNation, Inc., 149 Wn. App. 277,286,202 P.3d 1009 (2009), this court held, "a party that is awarded fees in arbitration under RCW 49.48.030 may also recover fees for all

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### No. 31445-6-111 Millerv. PaulM. WolffCo. 

# I I superior court and appellate court proceedings in the same matter." Mr. Miller is entitled to his fees upon compliance with RAP 

### 18.1. As the prevailing party, he is also entitled to costs under RAP 

### 14.2, subjectto compliance with RAP 

### 14.4. Affirmed.

Brown, 

### J. WE CONCUR:



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