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COURT QP APPEALS

20 13 SEP - 4 AM 10= 21

STAFF OF WASHING TOl

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Y - 4OUT — Y -

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

JOHN E. PETERSEN, JR. and ELLEN

PETERSEN, husband and wife,

Appellants,

V.

BASELINE ENGINEERING, INC., a

Washington corporation,

Respondent.

No. 43001 -1 -II

UNPUBLISHED OPINION

HUNT, P.J. — John E. Petersen, Jr., and Ellen Petersen appeal the superior court's grant of

summary judgment to Baseline Engineering, Inc. and dismissal of the Petersens' breach of

contract claim. The Petersens argue that there are issues of fact about whether Baseline breached

its contract to assist the Petersens in a short plat application process. We affirm. We also grant

attorney fees and costs on appeal to Baseline.

FACTS

I. BACKGROUND

John E. Petersen, Jr. and his wife, Ellen Petersen, acquired an option to purchase a .91

acre Brown'sPoint property, which they intended to subdivide and to sell to another party. The

option to purchase allowed the Petersens time to "check for environmental constraints or critical

areas located on or adjacent to the property prior to purchase." Clerk'sPapers (CP) at 95. The
No. 43001 -1 -II

Petersens contacted Baseline Engineering, Inc., a surveying, engineering, and land development

services firm.

A. Baseline Short Plat Application Contract

On October 18, 2006, Baseline sent John Petersen a letter stating its interest in "assist[ing

the Petersens] in short platting [the] property in Brown'sPoint." CP at 41. Baseline advised

Petersen that it had discussed the project with Pierce County staff "for the purpose of

determining whether additional lots could be obtained" and had concluded a two -lot short plat

would be "the most feasible and economical" approach. CP at 41. Baseline offered the

following services: (1) a "boundary and topographic survey "; (2) preparation of a "short plat

drawing and other standard application materials for submittal to Pierce County "; and (3)

consult[ing]" with Petersen " and /or representative, [or] other subconsultants ( such as

geotechnical engineer, traffic engineer, wetland biologist, etc.), and local agency staff (City,

County, [Washington State Department of Transportation], Fire Marshal, etc.)." CP at 41, 42

capitalization omitted).

The section ofthe letter addressing preparation of the short plat application stated:

SHORT PLAT APPLICATION

Prepare short plat drawing and other standard application materials for submittal

to Pierce County. This task does not include Sensitive Areas Analysis, Traffic

Impact Analysis, Geotechnical Reports, or other specialized technical studies as

may be required by Pierce County during review ofthe application.

CP at 42 (emphasis added). The letter further explained:

The above described scope to make application to Pierce County for a short plat is

generally predictable and can be defined. However, until Pierce County reviews

and comments on the application, it is not possible to determine with any degree

ofcertainty actions which will be required to obtain complete short plat approval

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No. 43001 -1 -II

from the County. After Pierce County review comments are received, we will be

able to more precisely determine "additional scope and fees" i.e. engineering

design and final plat documents.

CP at 42 (emphasis added). The letter also advised that Petersen would be "responsible for all

City, State, County or Local fees and taxes." CP at 42. Petersen signed the letter and accepted

Baseline'sproposal on November 20.

B. Sewall Wetland and Stream Analysis

Meanwhile, Petersen hired Sewall Wetland Consulting, Inc. to conduct a "[w]etland and

s]tream [ analysis" of the property; Petersen separately hired an engineering geologist to

provide a soils report. CP at 96. In a November 2, 2006 letter, wetlands ecologist Ed Sewall

advised Petersen that (1) there were conditions suggesting a wetland area, likely caused by fill

having been placed on the property; and (2) it was his "professional opinion that the site[']s soil

and vegetation conditions are a result of past disturbance and appear to not be a result of wetland

conditions." CP at 48. Sewall also cautioned Petersen that "only early growing season

monitoring would confirm ifthe area is wet or not." CP at 48.

C. Two -Lot Short Plat Application and County Response; PSA To Sell Property to Buchanan

Baseline completed the boundary and topographic survey in December, but it could not

proceed further with the short plat application until Petersen provided Baseline with a landscape

plan and title report. Petersen provided Baseline with the landscape plan and title report in July

2007, after exercising the option to purchase the Brown'sPoint property on June 25, 2007

1 Purchase and Sale Agreement.

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No. 43001- 11-

Nevertheless, Baseline planner Kevin Foley declined to perform the civil engineering site

development work at this stage because the county had not yet reviewed the initial short plat

application. Consistent with the contract, Foley told Petersen that the engineering site

development work should wait until they received the county'sinitial review of the short plat

application because the county'sfinal decision on certain issues, such as lot density and location

of any sensitive areas, would affect that engineering site work and could require major design

changes. Foley also told Petersen that he did not think Sewall's wetland and stream analysis

would meet county requirements.

Despite Foley's advice, Petersen hired engineer Brant Schweikl to do the site

development permit work in mid -July. On August 28, the Petersens entered into a PSA to sell

the property to Herman Buchanan for $485,000, with a September 29 closing date. According to

Petersen, although the PSA did not specifically state any conditions or contingencies other than a

financing contingency, "preliminary plat approval" was a requirement for the sale. CP at 108.

Also in August, Baseline submitted to the county a two -lot short plat application, which

included, at Petersen'srequest, the Sewall wetland and stream analysis about which Foley had

expressed doubts to Petersen. Petersen justified inclusion of Sewall's analysis, stating:

I wanted my expert[']s "sensitive area analysis" [i]n the hands of the county

environmental biologist. My feeling was; ifthe county wants something else they

would tell us. If they felt we had a potential environmental issue they would tell

us ifwe needed to provide any additional information.

2

The contract provided that Baseline would provide Petersen information about "`additional

scope and fees, "' including engineering design, only after the county reviewed the initial short

plat application. CP at 42.

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CP at 98 -99 (emphasis added).

On August 28, county senior planner Dierdre Wilson sent Baseline a letter stating that (1)

the two -lot short plat did not meet the county's density requirements unless there were

environmentally constrained lands" on the parcel reducing the area subject to development; and

2) "[ r]esearch in our GIS system does not result in any environmentally constrained lands on

this parcel that may reduce the developable area for net developable acreage calculations." CP at

50. The county also sent a copy ofthis letter to the Petersen.

On September 10, however, county environmental biologist Teresa Lewis sent the

Petersens a letter advising them that (1) the county had reviewed the application materials and

determined the proposed project requires Wetland Review "; (2) the project was subject to

section 18E. 030( 4) 30. A(of the county'scritical areas development regulations (CADR) , which

provides:

When the Department's maps, sources, or field investigation indicate that a

potential wetland is located within 315 feet of the project area [. .] the

Department shall require a site evaluation (field investigation) to determine

whether or not a regulated wetland is present and if so, its relative location in

relation to the proposed project area or site. The findings of the site evaluation .

shall be documented as outline in subsection 18E 30.030B., C., D., orE. [ 8] "

3CPat54.

4

Title 18E PIERCE COUNTY CODE.

5

CADR 18E 30. B) 030(provides: "General wetland review shall include the submittal of a

wetland verification report or a wetland analysis report, together with a wetland application and

fee." CP at 253. The regulation also sets out the contents of wetland verification and analysis

reports and prescribes what supporting documents should accompany each type ofreport.

6 CADR HE 30. C) 030(describes two alternative single - family- dwelling review processes.

E
No. 43001 -1 -II

CP at 54 (quoting CADR 18. 30 A)(E. 030( 4)) ( emphasis omitted); (3) the Petersens needed to

submit a wetland review fee and various documents related to this review; (4) if the county

located a wetland on the property, the Petersens would also have to submit a wetland analysis

report and an additional fee; and (5) any wetland specialist submitting a wetland analysis must be

selected from the county'slist of qualified wetland specialists, unless the person conducting the

review submitted his or her qualifications to the county for review and possible approval.o .

Lewis also sent a copy of this letter to Baseline.

Petersen claimed that he "was unaware of [Lewis's] letter for several weeks" because he

had been busy working and not reviewing his mail. CP at 102. When he finally read the letter,

he initially thought Baseline had not submitted the Sewall report with the plat application. CP at

104, 130. Angered, Petersen contacted Terrell Ferguson, Baseline's owner and a professional

surveyor.

Petersen met with Ferguson and Schweikl on October 18. According to Petersen,

Ferguson was not sure if the Sewall report had been submitted to the county with the initial twolot short plat application, but he told Petersen that the county also "needed a check for the

submittal fee ($567)." CP at 105. Relying on Wilson'sletter and Sewall's report, Ferguson

7

CADR 18E 30. D) 030(describes the agricultural activity wetland review process.

s

CADR 18E 30. E) 030(describes the forest practice wetland review process.

9

See also CP at 253.

io The record does not show whether Sewall was on the county's list of qualified wetland

specialists or whether he submitted his qualifications to the county for approval.

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No. 43001 -1 -II

recommended proceeding with a three -lot short plat because he did not think Wilson's August

2007 letter allowed any other option. Ferguson did not, however, rely on Lewis's September

2007 letter, which required a wetland review and which Baseline had received. Ferguson also

mistakenly thought that the county had not yet seen Sewall'sreport. Petersen agreed to seek a

three -lot short plat.

D. Three -Lot Short Plat Application and County Response; Buchanan Withdraws PSA

Until late January 2008, Baseline worked on various issues related to the three -lot short

plat, including a road variance required to meet county density requirements. According to

Petersen, the county did not allow them to proceed with the three -lot short plat application until

the road variance issue was resolved On April 24, Baseline submitted to the county the three -lot

short plat "design," again including Sewall's wetland and stream analysis. CP at 107.

According to Petersen, Buchanan "backed out of the [PSA] in February 2008 prior to [the

completion of] the 3 -lot design." CP at 107. Nevertheless, when the new three -lot plan was

submitted to the county, Petersen still "felt pretty good about the whole thing[, because he] had

an investor that was interested in financing [his] development of 3 -lots and [he] had several other

interested buyers." CP at 107. In May, the county sent another letter, which . according to

Petersen, was "almost the same letter as the September 10, 2007 letter from Teresa Lewis. This

time we paid the fee along with the application." CP at 107.

Petersen set up a meeting with Lewis and Sewall to review the property. Following a site

visit, review of old aerial photographs, and another meeting with Petersen, Lewis concluded that

11 The record does not show whether Lewis sent this letter to Baseline or to Petersen.

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No. 43001 -1 -II

the property contained a "N2 natural stream" and a category 4 wetland. CP at 108. Petersen

chose not to appeal Lewis's decision because it would have taken three to four months to set a

hearing and there was no guarantee the appeal would be successful.

E. Abandonment of Three -Lot and Return to Two -Lot Short Plat Application

Because Lewis had determined that there were critical areas on the property, Petersen

abandoned the three -lot short plat and returned to the two -lot short plat approach. By August

2008, the county gave "preliminary plat approval" for the two -lot plan. CP at 108.

In late 2008 and 2009, the property market declined significantly. Eventually the

Petersens' mortgage holder foreclosed on the property.

II. PROCEDURE

On October 28, 2010, the Petersens sued Baseline for breach of contract. They asserted

that Baseline had (1) failed to review and to respond to county correspondence, (2) failed to seek

input or clarification from the county, (3) provided them (the Petersens) with incorrect advice

during consultations, and (4) prepared and filed a short plat application based on "the erroneous

advice that was rejected by the county." CP at 25. Baseline moved for summary judgment,

arguing that it had performed the contracted services and met the required standards and that any

losses the Petersens suffered were caused by market changes, not breach of contract. The

superior court granted Baseline'smotion for summary judgment, dismissed the Petersens' breach

of contract action, and awarded Baseline attorney fees and costs.

The Petersens moved for reconsideration, arguing that there were remaining questions of

fact as to (1) the scope of Baseline's duties under the contract, specifically, whether the contract

required Baseline to assist the Petersens in obtaining short plat approval by "`consult[ing] with
No. 43001 -1 -II

the county regarding whether there were environmental constrained lands, including wetlands,

stream, erosion hazard areas, on the property" .'; and (2) whether Baseline breached the contract

by submitting an incomplete plat application to the county. CP at 350. Baseline responded that

the contract's plain language expressly excluded preparing or submitting any sensitive areas

materials. Apparently rejecting the motion for reconsideration, the superior court entered

judgment against the Petersens. The Petersens appeal.

ANALYSIS

The Petersens argue that there are material facts about whether Baseline breached the

contract and, therefore, the superior court erred in dismissing their action on summary

judgment. 

12 The Petersens' core argument is that if Baseline had

included the fee along with the application, or read or responded to the September

10, 20[07] letter from Teresa Lewis, the county would have received the site

investigation fee months earlier as was done properly at [the] time of [the] three

lot submittal, and subsequently identified the wetlands on the site much sooner.

With knowledge of the existing wetlands in hand, Baseline would never have

given the disastrous advice to Petersen to apply for three lots.

Br. of Appellant at 18. We disagree.

I. STANDARD OF REVIEW

We review summary judgment orders de novo, performing the same inquiry as the

superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004).

12 The Petersens also assert that there are issues of fact as to whether Baseline "breached the

applicable standard of care." Br. of Appellant at 3. A breach of a legal standard of care is a tort

claim, not a contract claim. See Owens v. Harrison, 120 Wn. App. 909, 915, 86 P.3d 1266

2004) (citing G. W. Constr. Corp. v. Prof'lServ. Indus., Inc., 70 Wn. App. 360, 364, 853 P.2d

484 (1993), review denied, 123 Wn.2d 1002 (1994)). Because the Petersen's action below was

based on a contract claim (and the Petersens withdrew their negligence claim), whether Baseline

breached any duty of care is not an issue before us on appeal.

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No. 43001 -1 -II

The superior court properly grants summary judgment when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Hisle, 151 Wn.2d at 861

citing CR 56(c)). The burden is on the moving parry to demonstrate that summary judgment is

proper. Atherton Condo. Apartment - Owners Ass'n Bd. ofDirs. v. Blume Dev. Co., 115 Wn.2d

506, 516, 799 P.2d 250 (1990). Summary judgment is appropriate only if, from all the evidence,

reasonable persons could reach but one conclusion. Wilson v. Steinbach, 98 Wn.2d 434, 437,

656 P.2d 1030 (1982), superseded by statute on other grounds as stated in Faust v. Albertson,

167 Wn.2d 531, 538, 222 P.3d 1208 (2009).

II. CONTRACT'SSCOPE; NO BREACH BY BASELINE

We first address whether the contract required Baseline (1) to submit the wetland review

fee with the initial two -lot short plat application, or (2) to respond to Lewis's September 10,

2007 letter. The plain language of the contract shows that it did not require Baseline to perform

these functions; accordingly, we hold that Baseline did not breach its contract with the Petersens.

A. Contract Interpretation

Contract interpretation is normally a question of fact for. the fact - finder.

See, e.g., Berg v. Hudesman, 115 Wn.2d 657, 663, 801 P.2d 222 ( 1990)

distinguishing contract interpretation, a question of fact, from contract

construction, a question of law); Hansen v. Transworld Wireless TV- Spokane,

Inc., 111 Wn. App. 361, 376, 44 P.3d 929 (2002) ( " Whether there was mutual

assent normally is a question of fact for the jury. ")[, review denied, 148 Wn.2d

1004 (2003)]; In re Estate ofRichardson, 11 Wn. App. 758, 761, 525 P.2d 816

1974) ( " The existence of a contractual intention is ordinarily a fact question to be

resolved by the trier of the facts. ")[, review denied, 84 Wn.2d 1013 (1974)]. But

summary judgment on an-issue of contract interpretation is proper where "the

parties' written contract, viewed in light of the parties' other objective

manifestations, has only one reasonable meaning." Hall v. Custom Craft

Fixtures, Inc., 87 Wn. App. 1; 9, 937 P.2d 1143 (1997).

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No. 43001 -1 -II

Spradlin Rock Products, Inc. v. Public Utility Dist. No. 1 of Grays Harbor County, 164 Wn.

App. 641, 654 -55, 266 P.3d 229 (2011). "A contract is ambiguous if its terms are uncertain or

they are subject to more than one meaning." Dice v. City ofMontesano, 131 Wn. App. 675, 684,

128 P.3d 1253, review denied, 158 Wn.2d 1017 (2006). But contract terms are not ambiguous

simply because parties suggest opposing meanings. Dice, 131 Wn. App. at 684. Such is the case

here.

B. Contract Not Ambiguous; No Breach of Contract

As we earlier noted, the Petersens' contract with Baseline required Baseline to prepare

only a "short plat drawing and other standard application materials for submittal to Pierce

County. " The contract expressly provided that this standard short plat application "task [did]

not include Sensitive Areas Analysis, Traffic Impact Analysis, Geotechnical Reports, or other

specialized technical studies as may be required by Pierce County during review of the

application." CP at 42 (emphasis added). The contract also expressly provided that Petersen

was responsible to pay any county fees.

The contract's language was unambiguous: It put the responsibility for any countyrequired "[s]ensitive [ a]reas [ a]nalysis" on Petersen, not Baseline, and it made Petersen

responsible for any fees. CP at 42. Thus, Petersen's argumentthat Baseline's failure to

address the wetland issue (by responding to Lewis's September 10, 2007 letter) and/or failure to

pay fees related to the wetland issue delayed the project (resulting in decrease of the property's

value) lacks support in the contract and in the record.

CP at 42.

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No. 43001 -1 -II

Nevertheless, the Petersens contend that they presented evidence creating a question of

fact about whether the county would have preliminarily approved the two -lot short plat in three

months, rather than the year it actually took, if Baseline had responded to the county's letters

including Lewis's September 10, 2007 letter), or if the planner who took over for Foley had

visited the site in person. According to the Petersens, this delay rendered them unable to resell

the property until after the market prices fell. Again, as discussed above, it was not Baseline's

responsibility to resolve any wetland issues; on the contrary, under the contract'splain language,

hiring a county- approved wetlands expert to resolve any wetland issues with the county was

Petersen'sresponsibility.

Furthermore, it was not Baseline's choice to proceed with a three -lot short plat

application that delayed discovery of critical areas on the property. Despite knowing of potential

critical areas on the property by October 2007 (when Petersen read Lewis's September 10, 2007

letter), Petersen took no steps to resolve this critical areas issue until after he received a second,

nearly identical notification in May 2008. If Petersen had acted promptly to resolve the wetland

issue after receiving Lewis's September 10, 2007 letter, the two -lot short plat could have been

completed much earlier. It was not Baseline'sresponsibility to resolve the critical areas issue;

rather, it was Petersen's responsibility. And Petersen failed to resolve this issue until after

Baseline submitted the three -lot short plat application, at Petersen'srequest; thus, any delay in

discovering the existence of the critical areas and the subsequent delay in the county's approval

was Petersen'sdoing, not Baseline's.

The Petersens next argue that Baseline breached the contract by filing an incomplete

short plat application that did not include a sensitive area analysis and related fee. Again, these

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No. 43001 -1 -II

two responsibilities were clearly outside the scope of Baseline'scontractual duties: The contract

expressly provided not only that Baseline was not responsible for any sensitive area analysis, but

also that it was not possible to determine whether the county would require any additional

documentation until after the county reviewed the short plat application. Moreover, nothing the

Petersens presented in opposition to Baseline'ssummary judgment motion established that the

county required applicants to submit a sensitive area analysis with an initial short plat

application. And because the contract required Petersen to pay the short plat application fee, it

was Petersen, if anyone, who breached the fee payment provision of the contract, not Baseline.

The Petersens also assert that (1) Baseline further breached the contract by failing to

consult with the county about various issues, including wetlands; and (2) "Mr. Petersen hired

Baseline to do a short plat of his property. At no time was he advised, instructed, requested or

otherwise asked by Baseline to do anything with regards to corresponding with the [c]ounty in

regards to the short plat." Br. of Appellant at 20. This argument lacks support in the record,

which shows that Baseline met with the county on numerous issues, such as road variances, in

developing the plat. Furthermore, the contract clearly stated that Baseline would "[p]repare short

plat drawing and other standard application materials," emphasized that this task did not include

any sensitive areas analysis or other specialized review that the county might require during its

review of the application, and provided that any fees were Petersen'sresponsibility. CP at 42.

This plain contractual language (1) establishes as a matter of law that Baseline was not

required to address the property's potential wetland issue, and (2) put Petersen on notice that he

or the specialists he hired for this purpose) was responsible for the wetlands aspect of the short

plat application. We hold, therefore, that there was no question of fact about whether Baseline

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No. 43001 -1 -II

breached its contract and, thus, the superior court did not err in granting summary judgment to

Baseline on the Petersens' claim.

III. NO DELAY OR DAMAGES CAUSATION BY BASELINE

The Petersens also raise several arguments that do not relate directly to the wetland issue,

but rather claim damages resulting from the delay in the short plat application process, which

delay they attribute to Baseline. These additional arguments fail because the Petersens fail to

establish a question of fact about proximate cause of the alleged delay and resultant damages. C

1031 Properties, Inc. v. First American Title Ins. Co., _ Wn. App. . 301 P.3d 500, 503

2013) (contract claim requires showing that breach proximately caused plaintiff'sdamage).

The Petersens first argue that Baseline failed to respond when the county returned a short

plat drawing with markups. Taking the facts in the light most favorable to the non - moving party

for summary judgment purposes, we assume, without deciding, that Baseline failed as alleged.

Such failure, however, is irrelevant because the Petersens presented no evidence showing that

such failure caused the delay or was related to any potential damages.

Second, the Petersens assert that Baseline erroneously advised them to increase the

density of the proposed plat before knowing what the county had to say about any potential

wetlands. Again, the Petersens fail to show a question of fact about whether any such erroneous

advice caused any damages. Moreover, the contract provided that Petersen, not Baseline, was

responsible for addressing the wetland issue; but Petersen did not address potential wetlands

issue with the property until May 2008 at the earliest, despite knowing of this requirement seven

months earlier when he read Lewis's September 10, 2007 letter in October 2007. IfPetersen had

addressed the wetlands issue when he first became aware of it in October 2007, it could have

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No. 43001 -1 -II

been resolved after his October meeting with Ferguson and not long after Baseline began

investigating the three -lot short plat option.

Furthermore, a significant portion of the damages the Petersens allege relate to the

engineering costs they owe Schweikl. But Petersen admitted that he had acted against

Baseline'sadvice when he chose to hire Schweikl and to proceed with the engineering portion of

the project well before the county's preliminary review of the short plat application. The record

shows that, had Petersen waited to hire Schweikl until after the county reviewed the application,

as Foley advised, and had Petersen resolved the wetland issue before hiring Schweikl, Petersen

would not have incurred Schweikl's extra engineering costs. 

14 The Petersens fail to establish a

question of fact about whether Baseline'sactions caused any of these extra engineering costs.

Because the Petersens fail to establish any questions of material fact, we hold that the

trial court did not err in granting Baseline's summary judgment motion and dismissing the

Petersens' contract action.

14 See Schewikl's deposition testimony that "most if not all of those difficulties that [he,

Schewikl] encountered doing the engineering would have been avoided if [Petersen] had waited

until he got his preliminary approval before proceeding with the development permit." CP at

310 -11.

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No. 43001 -1 -II

IV. ATTORNEY FEES AND COSTS

Baseline requests attorney fees and costs under the contract and RAP 18. a). 1(The

contract provides for an award of attorney fees and costs incurred in litigating contractual

issues. Accordingly, we grant Baseline'srequest for attorney fees and costs on appeal upon

compliance with RAP 18. d). 1(

We affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 040, 06.it is so ordered.

41

l

P.J. a

We concur: .

Pe .oyarL 

v 

Bjorge , J. 

15 The contract contains the following clause: "In case of suit, or if this account is placed in

attorney'shand for collection, CLIENT shall pay all costs of the suit and of collection, including

any and all attorney'sfees actually incurred by the Engineer to the particular attorneys involved

at such attorneys' then normal hourly rate." CP at 322.

16