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

. 

### IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON SCARSELLA BROTHERS, INC., a Washington Corporation, Appellant/ Cross

- Respondent ,
v. FLATIRON CONSTRUCTORS, INC., a Delaware Corporation; WASHINGTON STATE DEPARTMENT OF TRA NSPORTATION; LIBERTY MUTUAL INSURANCE COMPANY (Bond No. 015035206) ; TRAVELERS CASUAL TY AND SURETY COMPANY OF AMERICA (Bond No. 105688202); FIDELITY AND DEPOSIT COMPANY OF MARYLAND/ZURICH AMERICAN INSURANCE COMPANY (Bond No. 9070286) ; FEDERAL I NSURANCE COMPANY (Bond No. 82292503), THE CONTINENTAL INSURAN CE COMPANY (Bond No. 929539824) , and XL SPECIALTY INSURANCE COMPANY (Bond No. SUR7401972 ) , Respondent / Cross

- Appellant

. No. 78543

- 5

- I DIVISION ONE UNPUBLISHED OPINION

L EACH , J.

— The Wa shington State Department of Transportation (WSDOT)
contracted w ith Flatiron Constructors, Inc. (Flatiron) to be the prime contractor on aNo. 7854 3

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2 “design

- build project ” known as the I

- 405 Bellevue to Lynnwood Project. Flatiron
subcontracted with Scarsella Brothe rs, Inc. ( Scarsella) for earthwork

. Flatiron and Scarsella both appeal the trial court’s decision made after a lengthy bench trial.
Scarsella challenges the trial court decision s that the prime contract notice and claim provisions applied to its claims, the den ial of its claims that Flatiron waived enforcement and is estopped from enforcing the notice and claim provisions, and the den ial of its
claim s for quantum meruit recovery, foreclos ure of its retainage lien , attorney fees and
costs , and for prejudgm ent interest. Flatiron challenges the trial court’s decision that it
breached the Scarsella sub contract and awarded judgment against its payment bond.
We affirm

. FACTS
The Project and Parties
On January 1 1 , 2012, WSDOT contract ed with Flatiron to serve as the prime
contractor on a design

- build project to widen and add express toll lanes to a segment of
I

- 405 from Bellevue to Lyn n wood. On July 21, 2012, Flatiron subcontract ed with
Scarsella to perform earthwork, retaining wall installation , and drainage co nstruction

. T he value of the sub contract was $14,865,476.68

. The subcontract identifies three categories of work: (1) b id item work; (2) e xtra work; and (3) f orce account work.
Sureties on Flatiron’s “ C ontract Bond and Retainage Bond” include Liberty
Mut ual Insurance Company , Travelers Casualty and Surety Company of America , Fidelity and Deposit Company of Maryland/Zurich American Insurance Company , Federal Insurance Company , Th e Continental Insurance Company, and XL SpecialtyNo. 7854 3

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3 Insurance Company

. Liberty Mutual Insurance Company is the surety on Scarsella’s “Performance and Payment Bonds.” Payment Procedures Flatiron required Scarsella to submit month ly “pay application s ” with supporting documentation showing the work it performed for the month. From Augu st 2012 , to January 2015 , Flatiro n reviewed each pay application, met with Scarsella to discuss discrepancies , negotiate d payment for quantities and extra work using force account
worksheets , and would issue a determination about Scarsella’s work and payme nt. During that time, Flatiron’s engineer s reviewed the pay estimates and verified
Scarsella ’s work

. Flatiron used Scarsella’s pay applications to prepare its own monthly pay applications to WSDOT. After WSDOT paid Flatiron , Flatiron paid Scarsella a “p rogress payment.” Payment Dispute
In November 2014, Flatiron exercised its subcontract right to withhold Scarsella’s payment. Flatiron claim ed Scarsella did not document its work, follow required procedures, maintain documentation, substantiate force acco unt billings, and substantiate pay applications as the subcontract req uired

. Flatiron also claimed Scarsella caused project delays in breach of the subcontract

. Before withholding payments , Flatiron raised the se issue s with Scarsella. Scarsella gave Fla tiron some of the required documentation but not all. Flatiron told Scarsella it intended to pursue damages and intended to withhold payments because Scarsella did not provide full
documentation

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4 For Scarsella’s work on the project , Flatiron approved a to tal value of $17,788,284.60. Flatiron withheld $ 1,849,196.55 for b id item work ; $194,150.01 for

n on - force account extra work , and $ 709,362.35 for f orce account work

. Procedural History On August 14, 2015 , Scarsella delivered a “Notice of Claim Lien” to WS DOT, Flatiron, and the sureties

. Scarsella claimed $5,680,598.94 plus fees and costs

. On December 11, 2015, Scarsella sued Flatiron and the sureties . Scarsella
claimed breach of contract, recovery against the payment bond, foreclosure o n the lien against retainage , estoppel and waiver of prime contract provisions, breach of a covenant of good faith and fair dealing, and violation of RCW 39.76.011

. Scarsella sought $12,135,173 plus prejudgm ent interest, attorney fees , and costs

. Flatiron
counterclaim ed a rguing Scarsella significantly delayed the completion of the project

. Trial occurred from July 5, 2017 to September 26, 2017. During trial, Flatiron acknowledged it withheld $2,731,437.97 in earned payments from S carsella

. Type of Work Amount Wit h held F orce account work $709,362.35 Non

- force account extra work $194,150 .01 Bid item work $1,849,196.55 Minus back charges $(21,270.94) Total $2,731,437.97
On November 2, 2017, the trial court determined that subcontract section 2.6
authorized Flatiron to withhold payments , and Flatiron acted in good faith when it did so.
The trial court de cided Scarsella could not recover additional compensation for force
account work and extra work because of its noncompliance with section 1

- 04.5(1) of theNo. 7854 3

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5 P rime C ontract

. T he trial court ordered Flatiron to pay Scarsella $2,731,437.97 for its
work

. It denied Scarsella’s claims that Flatiron waived compliance with and was estopped from enforcing the prime contract notice and claim provisions

. I t denied
Scarsella’s claim s against the retainage as prematur e

. The t rial court also found
Scarsella ’s document at ion inconsistent and unreliable, and that Scarsella did not
substantiate its work and claims

. The trial court denied Flatiron’s claim that Scarsella
caused substantial project delays

. On January 19, 2018, Scarsel l a and Flatiron independently filed requests for entry of judgment, attorney fees and costs , and prejudgment interest. O n May 14 , 2018, the trial court partially granted Scarsella ’s and Flatiron’s requests

. Sca rsella appeals and Flatiron cross

- appeal s

. STANDARD OF REVIEW
We review a trial court’s decision in a bench trial for whether substantial evidence supports the trial court’s findings of fact and whether those findings support the court’s
conclusions of law

. 1 Substantial evidence is evidence sufficient to persuade a fair

minded person of its truth. 2 We review questions of law and statutory interpretation de

1 Standing Rock Homeowners Ass’n v. Misich , 106 Wn. App. 231, 2 43, 23 P.3d 520 (2001) ; Hegwine v. Longview Fibre Co., Inc. , 132 Wn . App. 546, 555

- 56, 132 P.3d 789 (2006). 2 Hegwine , 132 Wn. App. at 555

- 56

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6 novo. 3 So , we review a trial court’s conclusions of law about contract interpretation de

novo. 4 ANA LYSIS
P rime C ontract N otice and C laim Provisions
Scarsella argues the prime contract notice and claim provisions do not apply to
its claim s for extra work. We disagree.
“I f the parties to a contract clearly and unequivocally incorporate by reference
into their contract some other document, that document becomes part of their
contract.” 5 A prime contract incorporated by reference in a subcontract is binding on the
subcontract or. 6
The subcontract between Scarsella and Flatiron provides , “ Subcontractor

assum es toward Contractor all obligations that Contractor assumes toward Owner, insofar as applicable to the Work to be performed under this Subcontract. ” 7 As the subcontractor, Scarsella assumed toward Flatiron all obligations applicable to its work
that Flat iron assumed under the prime contract toward WSDOT for Scarsella’s work

.

3 In re Estate of Jones , 152 Wn.2d 1, 8

- 9 , 93 P.3d 147 (2004); Sunnyside Valley Irr. Dist. v. Dickie , 149 Wn.2d 873, 880, 73 P.3d 36 9 (2003)

. 4 Viking Bank v. Firgrove Commons 3, LLC , 183 Wn. App. 706, 712, 334 P.3d 116 (2014); Panorama Vil l age Homeowners Ass’n v. Golden Rule Roofing, Inc. , 102 Wn. App . 422, 425, 10 P.3d 417 (2000). 5 Satomi Owners Ass’n v. Satomi, LLC , 167 Wn.2d 781, 801, 225 P.3d 213 (2009). 6 Washington State Major League Baseball Stadium Public Faci lities Dist. v. Huber, Hunt & Ni chols

- Kiewit Const. Co. , 176 Wn.2d 502, 518, 296 P.3 d 821 (2013). 7 Subcontract Attachment B, Art. 1, § 1.6.No. 7854 3

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7 The prime contract also provides procedures for Flatiron to submit notices, claims, and protests to WSDOT : If in disagreement with anything required in a Change Order, or any other written order from the WSDOT Engineer, including any direction, instruction, inter pretation, or determination by WSDOT, the Design

- Builder shall:
1. Immediately give a signed written notice of protest to WSDOT before doing the Work; 2. Supplement the wr itten protest within 30 Calendar Days with a written sta tement and supporting documents [.

. .] ; and 3. If the protest is continuing, the information required above shall be supplemented monthly until the protest is resolved.
Because Scarsella assumed thes e same obligations toward Flatiron , Scarsella was required to comply with the prime contract ’s notice, claim, and protest provisions

. Next, Scarsella argues it did not waive certain claims when it did not follow the prime contract notice and claim provisio ns. We disagree.
Section 1

- 04.5 of the prime contract states, “ By not protesting as this section provides, the Design

- Builder also waives any additional entitlement and accepts from WSDOT any written order (including directions, instructions, interp retati ons, and determinations).”
In NOVA Contracting, Inc. v. City of Olympia , the Washington State Supreme Court upheld an identical protest provision

. 8 It determined the phrase “waives any
additional entitlement ” applies to “‘ all ’ claims related to the ‘prote sted [w] ork’ ” including damages

. 9

8 191 Wn.2d 854, 865, 426 P.3d 685 (2018) (citing Mike M. Johnson, Inc. v. County of Spokane , 150 Wn.2d 375, 391 , 78 P.3d 161 (2003)). 9 NOVA Contracting, Inc. , 191 Wn.2d at 86 6

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8 B ecause the subcontract incorporated the prime contract , Scarsella assumed
toward Flatiron the same procedural obligations Flatiron owed WSDOT . So, under
section 1

- 04.5 of the prime contract, Scarsella waived its right to protest if it did not comply with the prime contract’s protest provisions

. Scarsella also argues the plain language of the sub contract replaces the prime
contract notice and claim provisions because the sub contract provides a specific
mechanism for calc ulating payment s including payment for extra work. The subcontract provides: Extra work without a Bid Item that is directed by Flatiron will be marked up cost plus 10%. Extra work directed by WSDOT will be marked up according to the Contract Documents. Ex tra work shall be authorized by Flatiron personnel and quantities shall be mutually agre ed to prior to performing work.
But , this provision does not provide procedures for submitting notices, claims, and protests or describe the consequences of not followi ng those procedures . It does not replace or supersede section 1

- 04.5 of the prime contract. Scarsella also argues that Flatiron’s breach of the sub contract bars it from enforcing its compliance with the prime con tract provisions and that Flatiron prevent ed it
from comply ing with the prime contract provisions. Scarsella’s briefs do not cite to the
record or otherwise demonstrate t hat it raised these issues

. Because Scarsella did not
raise them below , we do not consider them on appeal

. 10

10 RAP 2.5(a).No. 7854 3

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9 Waiver and Estoppe l Scarsella argues that Flatiron waived th e prime contract provisions and is estopped from enforc ing those provisions

. We disagree. Flatiron did not waive the prime contract provisions and Scarsella did not establish the elements of estoppel

. Waiver

“ A p arty to a contract may waive a contract provision, which is meant for its benefit, and may imply waiver through its conduct. ” 11 Waiver by conduct “requires unequivocal acts of conduct evidencing an intent to waive.” 12 We enforce procedural contract require ments unless the benefiting party waives the contract provision or the parties agreed to modify the contract. 13 Here, the trial court determined : 55. Under Attachment B, ¶ 2.6 of the Subcontract, Flatiron had the right to deduct from payment due to Scarsel la any amounts owe d by Scarsella to Flatiron, and Flatiron was entitled to withhold payment from Scarsella in an amount sufficient to protect Flatiron from any actual or anticipated loss due to Scarsella ’s alleged breach of the Subcontract.
56. Scarsella has not proved by a preponderance of the evidence that Flatiron expressly waived the rights and powers specified above to deduct amounts paid to which Scarsella was not entitled under the Subcontract. Scarsella argues that Flatiron waived compliance when i t “(1) directed, demanded, acknowledged, and approved Scarsella [ ’s ] work, both before and after

11 Mike M. Johnson , Inc. , 150 Wn.2d at 386 ( citing Reynolds Metals Co. v. Elec tric Smith Const. & Equipment Co. , 4 Wn. App. 695, 700, 483 P.2d 880 (1971 ) ). 12 150 Wn.2d at 386 ( citing Absher Const . Co. v. Kent School Dist. No. 415 , 77 Wn. App. 137, 143, 890 P.2d 1071 (1995) ). 13 150 Wn.2d at 386

- 87 (citing Am erican Sheet Metal Works, Inc. v. Haynes , 67 Wn.2d 153, 157, 407 P.2d 429 (1965 ) )

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10 ceasing payment to Scarsella, and (2) continued negotiating and agreeing to bid item quantities with Scarsella.”
S ubcontract section 2.6 permits Flatiron to wit hhold payment s , and p rime
contract section 1

- 04.5(1) requires Flatiron and Scarsella to protest changes using the
notice and claim procedures

. T he payment and notice and claim provisions are distinct contract provisions

. H ere, Flatiron’s continued direct ion s to Scarsella did not waive the prime contract provisions.
We affirm the trial court’s finding that Flatiron did not waive the prime contract notice and claim provisions. Estoppel Scarsella argues that promissory estoppel prevents Flatiron from enforci ng the prime contract provisions. 14 We disagree.
P romissory estoppel has five elements : (1) a promise, (2) that promisor should reasonably expect to cause the promisee to change his position, and (3) actually causes the promisee to change position, (4) ju stifiably relying on the promise, (5) in such a manner that injustice can be avoided only by enforcement of the promise

. [ 15 ]

14 Scarsella also argues the trial court improperly shifted the bu rden of proof from Flatiron to Scarsella to show that Flatiron was estopped from withholding payment. Scarsella cites to Conclusion of Law number 56 and s ubcontract section 2.6 but does no t cite to any legal authority. We decline to address this issue. Palmer v. Jensen , 81 Wn. App. 148, 153, 913 P.2d 413 (1996)

. 15 McCormick v. Lake Washington Sch ool Dist. , 99 Wn. App 107, 117, 992 P.2d 511 (1999).No. 7854 3

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11 “ A promise is ‘ a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in un derstanding that a commitment has
been made. ’ ” 16
The subcontract provides that “[n]o progress payment to Subcontractor shall operate as an approval or acceptance of Work done,” and “Contractor may deduct from any amounts due to Subcontractor

... any sum or sums owed by Subcontractor to
Co ntractor under this Subcontract.” The contract also provides, “ the parties shall not be bound by, or be liable for, any statements, representations, promises, or agreements not specifically set forth in this Subcontract.”
The t rial court determined that “Scarsella could not reasonably rely on Flatiron’s prior progress payments as a promise not to deduct payment from future progress payments if it discovered that amounts paid were not actually due to Scarsella.” And,

“ Scarsella could not justifiably rely on Flatiron ’ s direction to perform extra work as a promise not to enforce [the notice and claim] and independent provisions.” T he plain wording of the subcontract defeats Scarsella ’s claim that it reasonably
rel ied on Flatiron’ s prior payments or direction to perform extra work as promise s not to deduct payment and not to enforce the contract provisions

. Because Flatiron made no promise, Scarsella’ s estoppel claim fails. W e affirm the trial court’s determination that
Scarsella could not reasonably rely on Flatiron’s prior progress payments as a promise

16 Havens v. C & D Plastics, Inc. , 124 Wn.2d 158, 172 , 876 P.2d 435 (1994) (citing Restatement (Second) of Co ntracts § 2(1) ).No. 7854 3

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12 not to deduct future progress payments and Flatiron was not estopped from deducting payments.
Br e ach of Subcontract Flatiron argues the trial court should not have found that it breached the
Scarsella subcontract and imposed liability against its payment bond because the trial
court found that Flatiron withheld the payment from Scarsella in good faith

. 17 Flatiron
asserts the trial court improperly conflated the issues of (1) who w as at fault for delaying the project and (2) Flatiron’s right to withhold Scarsella’s payments. We disagree.

“ To prevail on a breach of contract claim, the plaintiff must show an agreement between the parties, a parties ’ duty under the agreement, and a br each of that duty. ” 18 First, Flatiron argues substantial evidence does not support the trial court’s finding that Flatiron breached the subcontract when it caused substantial project delays. Flatiron also argues it did not have a duty not to delay the pr oject and instead had unilateral power to alter the project schedule.
Subcontract article 3, section 3.1 provides , “ Contractor may at any time by
written order of Contractor’ s authorized representative, and without notice to
Subcontractor’ s sureties, make changes in, additions to and deletions from the Work, and Subcontractor shall promptly proceed with the Work so changed.” And, section 3.2

17 Flatiron also agues that even absent the subcontract’s express withholding clause, it could withhold payments under the common law of contracts

. Because Flatiron’s withholding is separate from the issue of breach of contract, we decline to address it. 18 Fid elity and Deposit Co. of Maryland v. Dally , 148 Wn

. App

. 739 , 745 , 201 P

. 3d 1040 ( 2009 )

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13 states that Scarsella waives its rights to assert claims against Flatiron for changes it makes when it provides Scar sella with five days notice. Under these subcontract provisions, Flatiron could breach the subcontract even if Scarsella waived its right to
assert a claim for the breach

. The trial court found: Based on the evidence presented by both parties, the court finds that, to the extent there were delays, such delays more probably t han not were caused by Flatiron’ s failure to prepare timely and accurate construction plans, and its failure to properly plan, supervise and direct the sequence of work on t he Project, including Scarsella’s work. In its order granting in part Flatiron’s request for fees and costs, the trial court clarified, “i f it is not clear from the court’s earlier findings and conclusions, the court now
finds and concludes that Flatiron breached the parties’ contract by causing the substantial project delays that were the factual basis of Flatiron’s counterclaim against
Sca rsella.” Failure to timely and accurately prepare construction plans, supervise, and direct the project, are not delays permitted under subcontract article 3, section 3.1. So, we affirm the trial court’s finding that Flatiron breached the subcontract. Second, Flatiron argues it did not have a duty to pay Scarsella $2,731,437.97

. So , its withholding of that amount was not a contrac t breach. Flatiron conce ded that it

ow ed Scarsella $2,731,437.97 and the trial court found that Flatiron withheld that payment in good faith. But , t he trial court did not rely on Flatiron’s withholding to support its finding that Flatiron breached the su bcontract . It relied on Flatiron’s failure to prove at trial the factual basis for the withholding to support its decision that ScarsellaNo. 7854 3

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14 was entitled to recover the withheld amount

. It relied on other conduct described above to support its finding that Flatiron breached the subcontract. Scarsella’s claims based
on th ese breach es failed because it did not comply with procedural requirements for asserting these claims

. Third, Flatiron asserts that “[e]ven if the subcontract authorized F latiron to
withhold payment only in the event of Scarsella’s actual breach, Flatiron’s wi thholding
would not constitute breach because Scarsella was in actual breach” when it did not fulfill its scheduling and documentation obligations. But, the trial court found Flatiron d id not meet its burden of proving Scarsella caused the delays. So, this claim is without
merit. Substantial evidence supports the trial court’s finding that Flatiron breached the
subcontract. Q uantum M eruit R ecovery Scarsella argues the trial court incor rectly den ied its claim for quantum meruit
recovery because (1) Flatiron used Scarsella to perform work outside the scope of the subcontract; (2) the work was not within the method and manner contemplated by the parties ; (3) t he trial court incorrectly app lied t he force majeure standard ; and (4) t he trial
court incorrectly determined the prime contract notice and claim provisions barred quantum meruit recovery. We disagree. “Quantum meruit is an appropriate basis for recovery when substantial changes

occur which are not covered by the contract and are not within the contemplation of the parties, and the effect of such changes is to require extra work or to cause substantialNo. 7854 3

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15 lo ss to the contractor. ” 19 Quantum meruit is a mixed question of fact and law: D oes the
contract indicate the parties contemplated the changed conditions? 20 If the “ contract unambiguously contemplates the changed conditions , ” the complaining party is not
entitled to any quantum meruit recovery

. 21 If the contract is ambiguous , “ issues of f act would exist, and resolution of the question would be for the trier of fact. ” 22 Recovery is

ava ilable when neither party could have reasonably anticipated the changed condition

. 23
In General Construction Company v. Public Utility District No. 2 of Grant County ,
we determined f or w ork within the scope of a contract , a party must comply with the
terms of the contract unless there is evidence the complaining party waived compliance with the contract’s notice and claim requirements

. 24 Notice and claim provisi ons are valid unless there is “unequivocal evidence of an intent to waive” the protection. 25 “ F or work outside of the contract, and changed work within the scope of the contract where [ the party ] satisfied the contractual notice and claim provisions, quant um meruit applies

. ” 26 First, Scarsella argues it is entitled to quantum meruit recovery because Flatiron
directed it to perform work outside the scope of the subcontract

. Flatiron argues

19 Hensel Phelps Const . Co. v. King County , 57 Wn. App. 170, 174, 787 P.2d 58 (1990). 20 Hensel , 57 Wn. App. at 17 5

- 76. 21 Hensel , 57 Wn. App. at 176. 22 Hensel , 57 Wn. App. at 176. 23 Basin Paving Co. v. Mike M. Johnson, Inc. , 107 Wn. App. 61, 65, 27 P.3d 609 (2001), rev iew denied , 145 Wn.2d 1018 (2002). 24 195 Wn. App. 698, 700, 709

- 10, 380 P.3d 636 (2016). 25 Gen eral Construction Co mpany , 195 Wn. App. at 709 (citing Mike M. Johnson, Inc. v. C ounty of Spokane , 150 Wn.2d 375, 391

- 92, 78 P.3d 161 (2003))

. 26 195 Wn. App. at 709

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16 Scarsella cannot recover quantum meruit because the subcontract expre ssly included provisions for directing, authorizing, and compensating extra work

. 27 The trial court determined the subcontract contemplated “extra work outside the scope of the bid items” and “specifies the measurement of payment for all such work.” The s ub contract states, “ For work outside previously agreed upon the Subcontractor shall notify Contractor and agree upon quantities an d scope before performing work.” The price for
extra work is marked up cost plus 10 percent

. Because the contract unambiguou sly contemplates additional work , we affirm the trial court’s decision not to award quantum
meruit recovery

. Second, Scarsella argues it is entitled to recovery because the work did not proceed in the method and manner contemplated by the parties

. T he tri al court
determined Scarsella did not pr o ve there were substantial changes that neither party could reasonably anticipate

. Article 3 of the subcontract discusses changes and delays. In order to recover for defects in specifications, differing conditions, and delays, Scarsella was required to provide Flatiron with a written claim or else it would waive recovery. Because the contract reasonably contemplated changes, we agree with the
trial court that Scarsella did not prove it could not reasonably anticipa te the delays that
affected the method and manner of the work

. Third , Scarsella asserts the trial court improperly applied the force majeure
standard rather t h an the quantum meruit standard

. The trial court stated, “ I think

27 Flatiron argues this court rejected an analogous argument in Hensel Phelps Const . Co. v. King County , 57 Wn. App. 170, 174, 787 P.2d 58 (1990).No. 7854 3

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17 quantum meruit might be applica ble had we, for example, had a giant earthquake that
created crevices a nd cracks and chasms across the freeway, or if there had been some totally unforeseen disaster that nobody had planned for.” But , the trial court did not actually apply a force majeure standard. T he trial court continued to explain the

“ extraordinary amount of delay” and “huge number of change orders ” were not substantial change s not contemplated by the subcontract

. Because the trial court properly applied the quantum meruit standard , Scarsella’s argument fails

. Fourth, Scarsella asserts the trial court incorrectly determin ed the prime contract notice and claim provisions barred quantum meruit recovery

. Flatiron asserts the trial court correctly determined that Scarsella’s non

- complia nce with the subcontract’s provisions bars it from quantum meriut recovery. The trial court denied Scarsella’s request for quantum meruit recovery for work it performed but did not invoice before January 20, 2015. The trial court determined that when Sca rsella did not comply with
the provisions , it waived its rights to bring a claim. And, b ecause it waived its rights, the
trial court determined that Scarsella could not bring a claim for quantum meruit
recovery. We agree and affirm the trial court’s dete rmination that Scarsella was not
entitled to quantum meruit recovery.
L ien on Retainage
Scarsella argues the trial court should have allowed its claim under RCW 60.28
for recover y against the contract retainage held by WSDOT. We disagree.
RCW 60.28.030 pr ovides that after a party files a claim against the reserve fund , it has four months to bring an action to foreclose a lien on retainage

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18 RCW 60.28.011 (1)(a) provides that contract retainage may not exceed five percent

. Here, the subcontract’s retainage provision “provides that Flatiron may withhold
5 percent of all progress payments to Scarsella as retainage.” RCW 60.28.011( 3 )(a) (b)
and t he prime contract provide that within 60 days of the project’s final completion , the public body WSDOT m ust release t he retainage . The subcontract provides that retainage is due “upon acceptance of the work by WSDOT,” which occurs after the project’s final completion. “[P]arties may contractually select as the date of completion of the work either
the date of substantia l completion or the date of final completion .” 28 “ U nless otherwise defined by the contract to mean ‘ final completion[,] ’ the date on which the work is
100 [percent] complete ‘ completion ’ ordinar ily is understood to mean ‘ substantial completion ’

- the date on which all material elements of the work are sufficiently complete in conformance with the contract so that the owner can use the work for its intended purpose. ” 29 The trial court found the pro ject was substantially complete d by October 31,
2015 , but the cont r act date of comp l etion had not arrived by the time of trial. It
determined that “ [b] ased on the evidence presented at trial, it [wa] s not possible for the
court to reach a conclusion as to whether or when the reta inage will be due to
Scarsella.” It explained,
I’ m assuming that the retainage will be paid when the time comes, but I don ’ t have enough evidence, and the project had not been completed by

28 State Construction, Inc. v. City of Sammamish , 11 Wn. App . 2d 892, 911, 457 P.3d 1194 (2020). 29 State Construction , 11 Wn. App . 2d at 911.No. 7854 3

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19 the time of trial, at least not so far as I was told. So it would have been premature to rule on the retainage claim.
It determined be cause the date of completion had not arrived by the time of trial, Scarsella’s claim for foreclosure of the lien on retainage was premature

. We agree

. Because Scarsella prematurely asserted its claim, we affirm the trial

c ourt’s denial of this claim

. 30 Prevailing P arty Scarsella and Flatiron request attorney fees and costs under various statutes

. 31 Their competing claims require determining whether either party is the prevailing party.
None of the statutes relied on define “ prevailing party

. ” So , we must consider “ case law governing the determination of a prevailing party with respect to other statutes governing attorney fees and costs

. ” 32 “In Washington, the prevailing party is the one who receives judgment in that party ’ s f avor.” 33 “ A party need not recover its entire claim in order to be considered the prevailing party. ” 34 “ However

. . . where both parties prevail on major issues, neither is

30 Flatiron argues the absence of a finding on the issue of retainage is a presumptive negative f inding on that issue under Taplett v. Khela , 60 Wn. App. 751, 759, 807 P.2d 885 (1991). Because the issue was premature, we do not reach Flatiron’s claim. 31 RCW 60.28.030, RCW 39.08.030, RCW 39. 04.250, RCW 39.76.040, RCW 39.76.011. 32 In re Marriage of Nel son , 62 Wn. App. 515, 51 8

- 1 9, 814 P.2d 1208, 1211 (1991). 33 Sardam v. Morford , 51 Wn. App. 908, 911, 756 P.2d 174 (1988) (quoting Blair v. Washington State Univ ersity , 108 Wn .2d 558, 571, 740 P.2d 1379 (1987) ). 34 Silverdale Hotel Associates v. Lomas & Nett leton Co. , 36 Wn. App. 762, 774, 677 P.2d 773 (1984).No. 7854 3

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20 entitled to attorney fees. ” 35 And, u nder RCW 4.84.330, where each party prevails on a major issue , “ there is no ‘prevailing party.’ ” 36 In re Marriage of Nelson provides that because one party properly received an award of back child support under RCW 26.18.160 , that party prevailed over the other party

. 37 In Sardam v. Morford , the trial co urt concluded that because neither party was the prevailing party, it would not award attorney fees under a landlord

- tenant statute. 38
Division III of this court affirmed the trial court’s conclusion because it “would be inequitable to award substantial fe es” where both parties successfully defended against each other’s major claims. 39
I n Crest Inc. v. Costco Wholesale Corp. , we explained that under a contractual provision, rather than a statutory provision , [I] f neither party wholly prevails,

. . . then the party who substantially prevails is the prevailing party.

. . When there are several conflicting claims at issue, a defendant is awarded attorney fees for those claims it successfully defends, and plaintiff is awarded attorney fees for those claims upon w hich it prevails, and the awards should be the offset. [ 40 ] Here, the trial court determined that “Scarsella and Flatiron each prevailed on major issues, ” but “[n]either party prevailed.

. . on its own respective claims.” So, neither was the “prevailing par ty. ”

35 Sardam , 51 Wn. App. at 911

. 36 Tallman v. Durussel , 44 Wn. App. 181, 990, 721 P.2d 985 (1986); Row e v. Floyd , 29 Wn. App. 532, 535

- 36, 629 P.2d 925 (1981). 37 62 Wn. App. at 51 8

- 1 9. 38 51 Wn. App. at 91 0 (citing RCW 59.18.290, RCW 4.84.330). 39 Sardam , 51 Wn. App. at 911. 40 128 Wn. App. 760, 772, 115 P.3d 349 (2005).No. 7854 3

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21 Scarsell a argues the trial court incorrectly relied on Sardam in find ing it was not the prevailing party

. 41 Flatiron and the sureties argue the trial court properly referenced
Sardam to explain how it would avoid inequitable results by denying attorne y fees where neither party was the prevailing party. Using the approach where each party prevails on a major issue, “ there is no ‘prevailing party,’ ” 42 neither Scarsella nor Flatiron is the prevailing party. The trial court
determined that Scarsella failed on its claims for breach of contract, additional compensation , quantum meruit, retainage, waiver and estoppel , breach of good faith
and fair de a ling, and violation of payment statutes

. It determined Scarsella was entitled to labor and material payment bo nds totaling $2,731,437.97 because of Flatiron’s
concession

. It also determined Flatiron failed on its claims for d amages for breach of
contract and performance bond s

. Scarsella argues the $2,731,437.97 award against Flatiron’s labor and material payment bonds make it the “ prevailing party.” The trial court disagreed , Even though Flatiron conceded at trial that Scarsella had earned $2,731.437.97 more than Flatiron had paid Scarsella, Flatiron’s concession does not allow Scarsella to request an award of a ttorneys’ fees incurred in recovering that amount pursuant to RCW 39.04.250 or RCW 39.76.040, because Flatiron withheld that su m from Scarsella in good faith. Based upon the trial court record, the court finds and concludes that neither Scarsella nor Flat iron is the “p revailing party.”

41 51 Wn. App. 908, 911, 756 P.2d 174 (1988). 42 Tallman v. Durussel , 44 Wn. App. 181, 990, 721 P.2d 985 (1986); Row e v. Floyd , 29 Wn. App. 53 2, 535

- 36, 629 P.2d 925 (1981).No. 7854 3

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22 We agree with the trial court . B ecause the labor and material payment bonds issue was
not a “major issue” in the case, Scarsella was not the “prevailing party.” Scarsella also
failed on eight out of nine of its claims, and Flatiron failed on both of its claims . So, the trial court correctly determined neither was the prevailing party.
A ttorney Fees and C osts at Trial Scarsella argues the trial court should have consider ed whether to award fees
under RCW 60.28.030, RCW 39.0 8.030, and Olympic S.S. Co., Inc. v. Centenniel Ins.
Co

. 43 Flatiron and the sureties argue this court should affirm the trial court’s order denying Scarsella’s request for attorney fees and costs. Flatiron also argues it is entitled to reasonable attorney fees and costs it incurred defending itself because it prevailed under RCW 39.04.250. We disagree. N either Scarsella nor Flatiron is
entitled to trial fees and costs.

“ We apply a two

- part standard of review to a trial court’ s awa rd or denial of attorney fees: ‘ (1) we review de novo whether there is a legal basis for awarding attorney fees by statute, under contract, or in equity and (2) we review a discretionary decision to award or deny attorney fees and the reasonableness of any attorney fee
award for an abuse of discretion. ’ ” 44 First, Scarsella argues the trial court incorrectly denied recovery of attorney fees
under the Prompt Payment Act, RCW 39.04.250 , RCW 39.76.040 , and in determining the Prompt Payment Act was an exclusive remedy.

43 117 Wn.2d 37, 811 P.2d 673 (1991)

. 44 In re Washington Builders Ben

. Tr ust , 173 Wn. App. 34, 83, 293 P.3d 1206 (2013).No. 7854 3

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23 RCW 39.04.250 pro vides, “ In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to costs o f suit and reasonable attorneys’
fees. ” RCW 39.76.040 provides, “ In any action brought to collect interest due under this chapter, the prevailing party is entitled to an award of reasonable attorney fees. ” Here, t he trial court explained: It bears repeating that, although Flatiron conceded at trial that it withheld $2,731,437.97 from Scarsella as an offset against the $8,940,962 counterc laim that Flatiron was pursuing against Scarsella, Flatiron’s concession does not expose Flatiron to a claim for attorneys’ fees and costs or interest pursuant to RCW 39.04.250 or RCW 39.76.040, because Flatiron withheld that sum from Scarsella in goo d fai th

. B ecause Scarsella was not the prevailing party , it wa s not entitled to recover fees
under RCW 39.04.250 , and RCW 39.76.040

. The trial court found Flatiron withheld payment in “good faith,” so Flatiron’s withholding did not meet the “wrongfully withhel d” requirement of RCW 39.04.250. And, b ecause Scarsella’s claim for prejudgment
interest fail s, it is not entitled to an award under RCW 39.76.040.
Second , Scarsella argues the trial court should have awarded it recovery against
the contract reta i nage and attorney fees under RCW 60.28.030. In its trial complaint , Scarsella assert ed a claim for “t he retained percentage fund the principal amount of $6,564,370.73, plus pre

- judgment interest, costs and attorney’s fees , pursuant to RCW 60.28.” RCW 60.28.030 p rovides , “ In any action brought to enforce the lien, the claimant, if he or she prevails, is entitled to recover, in addition to all other costs, attorney fees in such sum as the court finds reasonable .” Because the trial courtNo. 7854 3

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24 properly denied Scarsella’s claim for recovery against the contract retainage , Scarsella did not prevail . So, we deny its claim for recovery under RCW 60.28.030. Third, Scarsella argues the trial court should not have denied it attorney fees and
costs under RCW 39.08.030(1)(b). RC W 39.08.030(1)(b) provides , “ in any suit or action brought against such surety or sureties by any such person or corporation to recover for any of the items specified in this section, the claimant is entitled to recover in additio n to all other costs, atto rneys’ fees in such sum as the court adjudges reasonable. ”

“ RCW 39

. 08

. 030 authorizes attorney fees in an action brought against a performance bond where the surety contests a right to recover, denies the allegations in a complaint,
and seeks dismissal of an action. ” 45 “ A surety contests a right to recover when it denies the allegations in a complaint and seeks dismissal of an action

. ” 46 The trial court denied Scarsella’s claim for attorney fees and costs under RCW 39.08.030(1)(b) because it
determined Scar sella did not have a statutory basis for attorney fees and that Scarsella was not the prevailing party.
Because S carsella’s bond claim fails, its claim for attorney fees and costs under
RCW 39.08.030(1)(b) also fails. Fourth, Scarsella argues the trial cou rt should not have denied it attorney fees
and costs under Olympic Steamship because it was the prevailing party , and to obtain the benefit of the surety , it had to litigate

. In Olympic Steamship , the Washington State

45 Campbell Crane & Rigging Services, Inc. v. Dynamic Intern. AK, Inc. , 145 Wn. App. 718, 727, 186 P.3d 1193 (2008 ) (citing Diamaco, Inc. v. Mettler , 135 Wn

. App. 572, 578, 145 P.3d 399 (2006) ). 46 Diamaco , 135 Wn

. App. at 578.No. 7854 3

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25 Supreme Court explained, “ an award of fees is required in any legal action where the insurer compels the insured to assume the burden of legal action, to obtain the full benefit of his insurance contract, regardless of whether the insurer ’ s duty to defend is at
issue. ” 47 “ An award of attorney fees under Olympic Steamship is restricted to disputes where the insurer forces the insured to litigate coverage and then loses. ” 48 B ecause we determined Scarsella is not the prevail ing party , it is not en titled to recover y under Olympic Steamship

. Fifth, Scarsella argues it is entitled to full attorney fees and costs without segregation. Flatiron asserts the trial court did not decide the issue of segregation
because Scarsella’s claims were unsuccessful. We review a trial court’s determination
of whethe r segregation is possible for abuse of discretion. 49 “ [W] here the ‘ plaintiff’s
claims for relief.

. . involve a common core of facts or [are] based on related legal theories, ’ a lawsuit cannot be ‘ viewed as a series of discrete claims ’ and, thus, the
claim s should not be segregated in determining an award of fees. ” 50 “ A trial court need not segregate attorney fees if it determines that ‘ the claims are so related that no
reasonable segregation can be made. ’ ” 51 Here, Scarsella ’s claims relied on the same

47 117 Wn.2d , 52, 811 P.2d 673 (1991). 48 King County v. Vin ci Construction Grands Pr oje ts/Parsons RCI /Frontier

Kemper, JV , 188 Wn.2d 618, 630, 398 P.3d 1093 (2017). 49 Vinici Construction Grands Projects , 188 Wn.2d at 632 (citing Ma yer v. Sto Industries, Inc. , 156 Wn.2d 677, 693, 132 P.3d 115 (2006)). 50 Fiore v. PPG Industries , Inc. , 169 Wn. App. 325, 351

- 52, 279 P.3d 972 (quoting Brand v. Dep ar t ment of Labor and Indust ries of State of Wash. , 139 W n .2d 659, 672

- 73, 989 P.2d 1111 (1999) )

. 51 Everett Hangar, LLC v. Kilo 6 Owners Association , No. 76949

- 9

- I , 7 Wn. App. 2d 1029 ( unpublished ).No. 7854 3

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26 “com mon core of facts.” Scarsella lost its primary claim s and was not entitled to fees

. Because Scarsella was not entitled to fees , segregation was not approp riate

. Flatiron asserts the trial court incorrectly denied its claim for attorney fees under
RCW 39. 76.040 and RCW 39.04.250 (3) because it prevailed against Scarsella’s
RCW 39.04.250 and 39.76.011 claims

. Because neither party is the prevailing party,

we deny Flatiron’s claim.
P rejudgment In terest Scarsella argues the tr ial court abused its discretion w hen determining the amount awarded was unliquidated , and that the trial court should have award ed prejudgment interest totaling $949,626.03. We disagree. We review prejudgment interest decisions for abuse of discretion. 52 A court may award prejudgment in terest (1) for liquidated damages 53 or (2) “w hen the amount of an ‘unliquidated’ claim is for an amount due upon a specific contract for the payment of money and the amount due is determinable by computation with reference to a fixed
standard contained in t he contract, without rel iance on opinion or discretion.” 54 “ Where, however, the demand is for something which requires evidence to establish the quantity
or amount of the thing furnished, or the value of the services rendered, interest will not
be allowed prior to the judgment. ” 55

52 Scoccolo Const., Inc. ex rel. Curb One, Inc. v. Ci ty of Renton , 158 Wn.2d 506, 519, 145 P.3d 371 (2006). 53 Scoccolo Const

. , 158 Wn.2d at 519. 54 Prier v. Refrigeration Engineering Co. , 74 Wn.2d 25, 32 , 442 P.2d 621 (1968). 55 Wright v. City of Tacoma , 87 Wn. 334, 353

- 54, 151 P. 837 (1915).No. 7854 3

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27 A claim is liquidated “where the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness , without reliance on opinion or
discretion. ” 56 A claim is “ ‘unliquidated’ where the exact amount o f the sum to be allowed cannot be definitely fixed from the facts proved,

. . . but must in the last analysis depend upon the opinion or discretion of the judge or jury as to whether a larger or a

s maller amount should be allowed.” 57
I n Prier , the Washingto n State Supreme Court explained, “ the existence of a dispute over part or all of a claim does not change the claim from a liquidated to an

un liquidated one

. I t is the character of the claim and not of the defense that determines the question. ” 58 There, th e c ourt determined the re was data available to compute the
exact costs of repair s , so the plaintiff’s claims were for a liquidated sum on which
interest would be allowed. 59 Here, the trial court determined, “ Scarsella’s request for an award of prejudgment
i nterest cannot be granted because Scarsella is not a prevailing party against Flatiron, and because the principal judgment amount is n ot based upon a liquidated sum.” The
trial court compare d this case to Wright v. City of Tacoma where the c ourt per mit ted prejudgment interest on a sum that was not in dispute but denied prejudgment interest
where “ the items which made up this amount were in dispute. ” 60 In Wright , the c ourt explained, “ It being necessary to establish by evidence the amount of the services

56 Prier , 74 Wn.2 d at 32. 57 Prier , 74 Wn.2d at 33. 58 Prier , 74 Wn.2d at 35. 59 Prier , 74 Wn.2d at 34

- 35. 60 87 Wash. at 354.No. 7854 3

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28 fu rnished, or the quantity of material supplied, and not being able to establish these either by computation or by reference to a known standard, interest prior to the date of the judgment was improperly allowed. ” 61
Here , Flatiron calculated it owed Scarsella approximately $2,731,437.97

. But,
t he trial court determined the amount Flatiron owed Scarsella was not , and could not be , calculated “ with an y certainty from the evidence , and thus it is not possible to compute prejudgment interest on that sum. ” We agre e the amount of Scarsella’s recovery is an unliquidated sum that is not

“ determinable by computation with reference to a fixed standard contained in the
contract

. ” For this reason , the trial court did not abuse its discretion in denying prejudgment intere st

. Scarsella also argues it is entitled to prejudgment interest because
RCW 39.04.250 and RCW 39.76.011 did not supersede common law rules for prejudgment

. 62 “ Where

. . . the provisions of a later statute are so inconsistent with and repugnant to the prior common law that both cannot simultaneously be in force, the
statute will be dee med to abrogate the common law.” 63
RCW 39.04.250(3) provides a party may recover interest where a party wrongfully withheld the sum

. Scarsella cannot recover under RCW 39.04.25 0(3)

61 87 Wash. at 354. 62 Scarsella also argues the trial court improperly determined RCW 39.04.250 and RCW 39.76.0 11 to be the exclusive remedy. This cla im is without merit because the trial court did not state that RCW 39.04.250 and RCW 39.76.011 were exclusive remedies. 63 S tate ex rel. Madden v. Public Utility Dist. No. 1 of Douglas County

. , 83 Wn.2d 219, 222, 517 P.2d 585 (1973).No. 7854 3

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29 because Flatiron withheld payment in good faith . Because it cannot recover under
RCW 39.04.250(3) , Scarsella is not entitled to interest under that statute. The good faith safe harbor provided by the parties’ contract and RCW 39.04.250(3)’s requirem ent that a withholding be wrongful abrogate any previous inconsistent common law right of
recovery. And, b ecause the date of completion had not arrived by the time of trial, the retainage issue was premature and Scarsella is not entitled to interest on the retained

sum under RCW 39.76.011

. The trial court did not abuse its discretion in denying prejudgment interest

. So , we affirm. Attorney Fees on Appeal Both Scarsella and Flatiron request attorney fees and costs on appeal. But, neither is the prevailing party on appeal. Each has prevailed on one or more major issues. So we deny both requests.

CONCLUSION
We a ffirm. T he prime contract notice and claim provisions apply to Scarsella’s claim for extra work because the subcontract broadly incorporated the p rime contract , Flatiron did not waive the prime contract provisions , and Scarsella’s claim for estoppel
fails. B ecause Scarsella did not comply with the notice and claims requirements, it waived its right to recovery and quantum meruit is unavailable. Sc arsella’s claim for foreclosure of the lien on retainage was premature because the prime contract date of completion had not arrived by the time of trial

. N either Scarsella nor Flatiron is theNo. 7854 3

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30 prevailing party , and neither party is entitled to trial fees and costs. Scarsella did not prevail on a liquidated claim, and the trial court did not abuse its discretion in denying prejudgment interest. Flatiron breached the sub contract “ by causing the substantial project delays.” We deny Scarsella and Flatiron’s requests for attorney fees and costs on appeal.

WE CONCUR: