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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON RADIANCE CAPITAL, LLC, a Washington limited liabilitycompany, Appellant,

CIRCLE S FOODS, INC., a foreign corporation, dba CIRCLE S. MARKET and DAILY; SUBHASH CHANDER SHARMA and "JANE DOE" SHARMA, husband and wife; JAGTAR SINGH and "JANE DOE" SINGH, husband and wife; and NAVJIT SINGH and "JANE DOE" SINGH, husband and wife, Respondents. No. 69547-9- DIVISION ONE

UNPUBLISHED OPINION FILED: March 17,2014



### Becker, J. —This appeal involves a contractdispute over$381 inforceplaced insurance premiums for a commercial fryer purchased through a financing company. The financing company, Radiance Capital LLC, appeals the trial court's decision infavor ofCircle S Foods Inc., the Oregon business that purchased the $6,000 commercial fryer for a convenience store. Finding no error, we affirm. We referto the respondents collectively as Circle S. Thejudgment in favor ofCircle S was entered after a bench trial on August 14, 2012.No. 69547-9-1/2

FACTS In November 2005, Circle S purchased a ventless fryer and financed it through Radiance Capital, a Washington equipmentfinancing company. The 

### fryer cost $5,950. Circle S agreed to pay Radiance 60 monthly payments of $148.83, for a total of$8,929.80 ($5,950.00 inprincipal and $2,979.80 in interest.) The financing agreement provided thatthe terms were fullyreflected in the writing and could not be changed except by written agreement of allthe parties. Radiance issued a checkfor the price ofthefryer and took out a UCC security interest on it. As partofthe financing agreement, Circle S was required to "maintain and 

### provide Creditorevidence satisfactoryto Creditorforthe maintenance of all risk insurance against loss of or damage to the Collateral for not less than the full replacement value." Exh. 1,1J13; Finding of Fact 5. Radiance, the creditor, was 

### to be named as a loss payee. Finding ofFact 5. The agreement required Circle S to maintain "public liability and property damage coverage insuch amounts and in such forms as creditor (Plaintiff) shall reasonably require." Finding of Fact
6. 

### Radiance provided Circle S a "Notice to Provide Insurance Authorization" form. Exh. 3. On October 7, 2005, Circle S signed the notice and faxed it to the 

### store's insurance agent, Jim Short ofFarmers Insurance inSalem, Oregon. 

### Radiance officials did not sign the notice, and that documentwas not referred toNo. 69547-9-1/3


### inthe financing agreement. Paragraph "a" ofthe notice instructed the insurance 

### agentto provide Radiance with an endorsementto Circle S's policyevidencing primary all risk insurance or its equivalent coverage for the equipment, with Radiance named as "loss payee." Finding ofFact 8. Paragraph "b" ofthe notice required the agentto provide Radiance an endorsement showing public liability 

### and property damage insurance with a single limit of not less than $500,000 per occurrence, with Radiance to be named as an additional insured. Exh. 3; Finding of Fact 9. The effective date was to be October 7, 2005, or earlier. Shortplaced insurance on the fryer and sentthe first certificate of insurance directly to Radiance. There is no dispute thatthis original proofof insurance was acceptable to Radiance in all respects. 

### Beginning inJanuary 2007, Radiance's invoices began including a new monthly charge for "insurance premiums." Finding ofFact 13; Exh. 5. Neither the exhibits northe witnesses provided any explanation for why Radiance started 

### charging Circle S forthe premiums inJanuary 2007. Circle S did not pay the 

### monthly premiums, which were $6.25 at first and then increased to $7.81. Exh. 5. Circle S made only the regular loan payments of$148.83. Circle S made its last loan payment inOctober2010. 

### On January 13, 2011, Radiance sent Circle S a letter demanding payment of$381.78 in "Insurance Fees" as well as a $150.00 "AgreementTransfer Fee." Exh. 15. The letter stated these were necessary in orderfor Circle S to purchaseNo. 69547-9-1/4 

### thefryerfrom Radiance. Exh. 15.1 Circle S tendered $150.00for the transfer fee but disputed the demand for the insurance fees. 

### On February 8, 2011, Radiance declared a default, stating that Circle S
now owed an additional $480.00 in default and collection fees, and thatthe 

### creditorwould pursue legal action if Circle S did not pay $861.78 within 10 days. Exh. 21. Circle S filed suit in Oregon requesting declaratory relief. On February 28, 2011, Radiance responded by filing suit in King County for the balance claimed to be due. Due to a choice of law provision inthe financing agreement, the Oregon action was dismissed and the dispute proceeded to a bench trial in 

### KingCounty SuperiorCourt. The only two witnesses were Michael Price, Radiance's authorized representative and chieffinancial officer, and Jagtar Singh, owner of Circle S. Price testified that Radiance force-placed the insurance on the fryer in response to Circle S's failure to provide satisfactory proofofinsurance. As 

### evidence ofbreach, Radiance offered its financing agreement and related documents, invoices showing what itpaid for force-placed insurance, and the 

### monthly invoices sentto Circle S withthe fees forthat insurance. Price testified that itwas Radiance's standard practice to send written notices ofinsurance



### 1The financingagreementdoes not mention a $150 "Agreement Transfer Fee." Exh. 1. Radiance asserts that this fee covers release of its UCC security interest. Appellant's Br. at 16.No. 69547-9-1/5 

### deficiencies and to givedebtors an opportunity to cure. But he admitted he had not seen copies of any such documents thatwere sentto Circle S. 

### Singh testified that Circle S maintained the sametype ofinsurance coverage for the entirety of the financing contract; the onlychange was to increase the amount ofliability coverage from $1 million to $2 million. As proof 

### that itsatisfied the insurance requirements, Circle S offered itsinsurance billing statement and a letter from its agentconfirmingthat Radiance was continuously listed as a loss payee and an additional insured. Exh. 18 at 7; Exh. 41. 

### OnAugust 16, 2012, the trial court gave its oral ruling, finding that Radiance had "failed to prove by a preponderance ofthe evidence thatthe Defendants have breached the contract": There is no evidence before this Court that the Defendants were ever notified thatthe insurance was not satisfactory until afterthe 

### conclusion and final payment ofthe contract amounts. And if you look at paragraph 25 ofthe parties' Financing Agreements, any notices to the parties concerning their obligations underthe Financing Agreementwere required to be in writing. The Court concludes it is insufficientto simply charge a premium without an explanation ofsome kind as to how or why the insurance thatthe Defendants continued to provide proofof on an annual basis was inadequate. On September 17, 2012, the court entered detailed findings offact and conclusions of law. Radiance filed a motion for reconsideration and/or new trial based on "newly discovered evidence" regarding whether Radiance had sent Circle S notice of an insurance deficiency. The court denied the motion.No. 69547-9-1/6 

### In October and November2012, the court awarded Circle S attorney fees and costs ofapproximately $32,700. Radiance appeals. STANDARD OF REVIEW 

### When a trial court has weighed the evidence in a bench trial, this court's 

### review is "limited to determining whether substantial evidence supports its 

### findings of fact and, ifso, whetherthe findings supportthe trialcourt's conclusions of law." Hegwine v. Longview Fibre Co., Inc., 132 Wn. App. 546, 555, 132 P.3d 789 (2006), affd, 162 Wn.2d 340, 172 P.3d 688 (2007). The substantial evidence standard is "deferential and requires the appellate courtto 

### view allevidence and inferences inthe lightmostfavorable to the prevailing party." Lewis v. Dep't ofLicensing. 157 Wn.2d 446, 468, 139 P.3d 1078 (2006). 

### This courtdefers to the trial courtfor purposes ofevaluating the persuasiveness ofthe evidence and the credibility ofwitnesses. Lodis v. Corbis Holdings, Inc., 172 Wn. App. 835, 861, 292 P.3d 779 (2013). Unchallenged findings offact are verities on appeal. Keever &Assocs., Inc. v. Randall. 129 Wn. App. 733, 741, 119 P.3d 926 (2005), review denied. 157 Wn.2d 1009 (2006). This court reviews de novo whetherthe trial court's conclusions of law flow from the supported findings of fact. Ruse v. Dep't of Labor &Indus.. 138 Wn.2d 1,5, 977 P.2d 570 (1999). CONTRACT TERMS The financing agreement required Circle S to list Radiance as a loss payee on all risk insurance covering the value ofthe fryer and to provide proofofNo. 69547-9-1/7 

### that insurance to Radiance. Thefinancing agreement also requiredCircle S to maintainliability insurance in an amount and form as required by Radiance, but 

### the financing agreementdid notspecifically require Circle S to provide proofof liabilityinsurance to Radiance. The Notice to Provide Insurance Authorization 

### directs Circle S's insurance agentto provide proof of insurance naming Radiance
as both"Loss Payee" and "Additional Insured." Radiance argues that the 

### financing agreementand the notice must be read together to impose a duty on Circle S to provide proof of both insurance coverages on a continuing basis. The trial court rejected this argument inconclusion of law 2, to which Radiance assigns error. The court concluded there "are inconsistencies between the Financing Agreement and the Notice to Provide Insurance Authorization," 

### and these inconsistencies create an ambiguity that must be construed against Radiance as the drafter. See Lamar OutdoorAdvertising v. Harwood. 162 Wn. App. 385, 395, 254 P.3d 208 (2011). As the trial court noted, "there is no 

### reference to the Notice to Provide Insurance Authorization inthe Financing Agreement," and when the financing agreement wanted to incorporate a document, it did so explicitly, as with Schedule A. Significantly, the Notice to Provide Insurance Authorization does not require Circle S to provide Radiance with annually updated proofof liability insurance but merely with proofof insurance "with an effective date as shown on the date below [October7, 2005]
or earlier." Exh. 3. And the financing agreement only requires Circle S to giveNo. 69547-9-1/8 

### Radiance 30 days' advance notice in writing ofany cancellation or change in insurance coverage. Exh. 1, U 13. We find no error in conclusion of law 2. BREACH 

### Radiance claims ithad to start charging Circle S for insurance premiums due to deficiencies in Circle S's 2009 and 2010 policies. The trial courtfound no evidence that Radiance notified Circle S in writing ofany deficiencies, as required by the financing agreement, until after Circle S. made its final payment
on the fryer. Conclusion of Law 3. The court concluded itwas insufficientfor Radiance "to simply charge Defendant Circle S for an insurance premium without


### an explanation as to how and why the insurance that Defendant Circle S continued to provide proofof on an annual basis was inadequate." Conclusion of Law 4. The court concluded that the claim for breach ofcontract failed in the 

### absence ofsuch a notice. Radiance assigns errorto these conclusions and to
some ofthe factual findings underpinning them. 

### Thefinancing agreement required Radiance to provide Circle S any notices related to the agreement in writing, and Price testified that itwas 

### standard practicefor Radiance to give written notice ofinsurance deficiencies. Radiance assigns errorto finding of fact 12, in which the court notes that Radiance failed to follow its standard practice of giving customers written notice and an opportunity to cure: 

### Plaintiff's authorized representative, Michael Price, testified that it was Plaintiff's standard practice to send its customers a written notice, with an opportunity to cure, inany instance where the
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Plaintiffbelieved thatthe customer had failed to provide Plaintiff with adequate proofofinsurance. Plaintifffailed to follow this standard practice with Defendant Circle S. At no time during the five year course ofthis contract, did any employee ofthe Plaintiff provide a written notice to the Defendants that Plaintiffrequired any additional ordifferent insurance or proofof insurance, nordid any written notice advise the Defendants to cure any shortcoming inthe proofof insurance provided. 

### The court's finding accurately reflects Price's testimony and Radiance's exhibits
at trial.Radiance contends that providing opportunities to cure was merely a 

### "courtesyto itscustomers," and "itwas notcontractually required to do so." Appellant's Reply Br. at 15. This argumentfails. Radiance did not assign error to the court's finding of fact 23: "Paragraph 25 ofthe Financing Agreement 

### states that any notices to the parties concerning their obligations underthe Financing Agreementwere required to be inwriting." Alternatively, Radiance contends that its monthly invoices withthe 

### insurance charges constituted written notice of CircleS's insurance deficiency. SeeAppellant's Reply Br. at 15 ("Radiance did in fact send Circle S 

### approximately49 written notices that itwas unsatisfiedwith Circle S's proof of insurance. These notices came inthe form ofmonthly invoices.") Radiance 

### contends, inotherwords, that receiving an unexplained invoice for an insurance 

### premium issufficient noticeas a matter of law of an insurance deficiency. Radiance cites no authority for this proposition, and we reject it. We find no error in conclusions oflaw 3 and 4.No. 69547-9-1/10

MOTION FOR RECONSIDERATION Radiance moved for reconsideration on the basis of "newly discovered evidence" and contends the court erred by denying the motion. This court reviews a trial court's denial of a CR 59(a) motion for abuse ofdiscretion. Collins
v. Clark County Fire Dist. No. 5. 155 Wn. App. 48, 81, 231 P.3d 1211 (2010). The "newly discovered evidence" was letters US Bank allegedly sentto Circle S on behalf of Radiance. An e-mail attached to the motion for reconsideration shows Radiance did not request these documents from US Bank until August 13, 2012, a day before trial: We go to trial tomorrow morning on this deal that Ispoke to you about and Iwas wondering ifwhen an insurance certificate came in to US Bank and it was insufficient was there a standard letter that was sent out? Isee in account notes that insurance cert requests were sent out. Also, ifthere is a letter used does itgo to the customerorto the insurance agent? If you have a lettercan you 

### send me a copy and also if you have a copy thatwas directly [sent] to Circle S Market and Daily [that] would be even more helpful. 

### US Bank responded seven days later, on August 20, 2012, e-mailing three letters. The first letter is to insurance agent Short, indicating that Circle S's 

### insurance was due to expire inFebruary 2006 and Radiance was requesting a renewal certificate. The second, to Circle S, is dated January 10, 2007. It 

### indicates that insurance coverage had been canceled and asks for a reinstatement or renewal certificate. And the third, also to Circle S, is dated June 20, 2007. Itnotifies Circle S that Radiance declared the lease in default inJune 

### 2007 due to failure to maintain required insurance. Radiance claims these
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documents directly undermined some ofthe findings and conclusions the trial court relied on to deny relief. But the two letters actually addressed to Circle S
are not material to the issue of notice because they were sent in January and June 2007, a period during which—according to the trial testimony ofPrice— Circle S had satisfied all insurance reguirements. See Report of Proceedings at 100. Radiance fails to show that the three letters were material, could not have been discovered with reasonable diligence and produced attrial, or would have 

### changed the result. See Go2Net, Inc. v. CI Host, Inc., 115 Wn. App. 73, 88-89, 60 P.3d 1245 (2003). Contrary to the assertion by Radiance, the record provides


### no basis for concluding that substantialjustice has not been done, as required by CR 59(a)(9). See Larson v. Georgia Pac. Corp., 11 Wn. App. 557, 562, 524 P.2d 

### 251 (1974) (noting "disagreement as to credibilityand interpretation of the evidence does not support a conclusion that substantialjustice has not been done.") ATTORNEY FEES 

### Paragraph 18 of the financingagreementprovides for attorney fees and costs in a dispute over enforcing the agreement. As the prevailing party, Circle S is awarded attorneyfees and costs on appeal. RAP 18.1; RCW4.84.330.

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Affirmed. £2 WE CONCUR:



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