IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

AL and PAULETTE JANSEN,

Appellants,

v.

PEOPLE’S BANK, a Washington Bank 

Corporation; and CRAIG CAMMOCK, 

an individual,

Respondents.

No. 83994-2-I 

DIVISION ONE

UNPUBLISHED OPINION

SMITH, C.J. — Al and Paulette Jansen obtained financing from Peoples 

Bank to build a home. As a condition of the loan agreement, the Jansens 

needed to obtain the Bank’s approval before making any material or substantial 

changes to the construction plans, such as changing contractors. After the 

Jansens terminated their contractor without notice to the Bank, the Bank sent the

Jansens a letter declaring them to be in default. In response, the Jansens sued 

the Bank, alleging breach of contract, breach of the duty of good faith and fair 

dealing, and violations of the Consumer Protection Act, chapter 19.86 RCW. 

They also sued the Bank’s lawyer for tortious interference with the contract. The 

trial court dismissed all the Jansens’ claims in consecutive summary judgment 

motions. The Jansens appeal, asserting that the trial court erred in concluding 

that the Bank did not breach the contract and that no issues of material fact 

existed. We disagree and affirm.
No. 83994-2-I/2

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FACTS

In October 2019, Al and Paulette Jansen obtained a $935,000 loan from 

Peoples Bank to build a home in Bow, Washington. The parties executed a 

Construction Loan Agreement and an Adjustable Rate Note. The latter 

contained an addendum allowing the Jansens the option of converting their 

construction loan into a permanent loan. Several provisions of the loan 

agreement are relevant to this appeal.

Section 3 is entitled “The Work” and provides general guidelines for the 

construction. It provides that any changes to the work must be in a written 

agreement, signed by the Jansens and their contractor, and approved by the 

Bank.

Section 4 concerns the loan and addresses disbursements, use of funds, 

and the construction loan account. It makes clear that the Bank has no 

obligation to disburse any loan proceeds during any period of default. It also 

provides that the Bank may disburse funds in a matter and at a rate that the Bank 

deems consistent with construction progress. Lastly, section 4 provides that the 

borrower, in conjunction with the contractor, is responsible for providing invoices 

and lien waivers to the Bank—the Bank has no affirmative duty to verify any of 

that information.

Section 6 covers events of default and the Bank’s available remedies. It 

defines what constitutes a default and authorizes the Bank to declare a default 

and to cancel permanent financing in the case of a default.
No. 83994-2-I/3

3

Issues began shortly after construction started. The Jansens, unhappy 

with the work being done by their contractor, asked their son Grant, himself a 

construction professional, to investigate the contractor’s performance. Grant 

reported to his parents that the Bank “had administered payments to the 

contractor in numerous improper ways” and that both the Bank and contractor 

had breached their agreements with the Jansens. 

In March 2020, the Jansens parted ways with their contractor and hired 

Grant to finish the construction. In early April, Grant sent an e-mail to the Bank 

explaining the new arrangement. Grant told the Bank: “As you know the contract 

with [the contractor] is terminated. We are completing the project ourselves 

personally so there is no new contract to give you.” Grant also told the Bank that 

it was no longer authorized to make further payments to the contractor and that 

the Jansens would “reconcile any final payment to or refund from [the contractor] 

on [their] own.”

A few days later, the Bank sent the Jansens a letter acknowledging receipt 

of Grant’s e-mail and alerting them that termination of the contractor constituted 

default because it was “a substantial and material change to conditions of the 

loan.” The Bank advised the Jansens to “promptly and adequately address this 

substantial change of circumstance in compliance with the provisions of the Loan 

Documents” and execute a termination document. The Jansens did not do so. 

Instead, in June 2020, the Jansens sued the Bank and its lawyer, Craig 

Cammock. Against the Bank, the Jansens alleged breach of contract, breach of 

the duty of good faith and fair dealing, and a Consumer Protection Act violation.
No. 83994-2-I/4

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Against Cammock, the Jansens alleged tortious interference with a contract. The 

Bank promptly moved to dismiss under CR 12(b)(6), but the court denied its 

motion. However, the court noted that it had “significant question as to some of 

the breaches alleged in the Complaint, particularly those subsequent to the 

termination of the contractor” and “invite[d] these issues to be brought back 

before the [sic] it on a motion for summary judgement [sic].” Cammock then 

individually moved for summary judgment on the tortious interference claim and 

the court granted his motion and dismissed the claim.

Once the parties completed initial discovery, the Bank moved for summary 

judgment on all remaining claims. The court granted the Bank’s motion. The 

Jansens appealed.

Shortly after the Jansens filed their notice of appeal, the Bank petitioned

the trial court for attorney fees and costs and Cammock moved for sanctions 

under CR 11. Following oral argument, the court denied Cammock’s motion for 

sanctions, but granted the Bank’s petition for fees and awarded it $92,142.50.

ANALYSIS

We are presented with three issues on appeal. First, whether the court 

erred in granting summary judgment for the Bank on the Jansens’ seven breach 

of contract claims. We conclude that it did not. On each of the seven breach 

claims, the Jansens fail to demonstrate either the existence or breach of a 

contractual duty. Second, whether the court erred in granting summary judgment 

for the Bank on the Jansens’ breach of duty of good faith and fair dealing claim. 

Because the duty of good faith and fair dealing must be connected to a valid 
No. 83994-2-I/5

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breach of contract claim—which the Jansens do not have—we affirm this 

dismissal. Third, whether the court erred in granting summary judgment for the 

Bank on the Jansens’ Consumer Protection Act (CPA) claim. We affirm the 

court’s dismissal of the CPA claim because the Jansens do not identify any unfair 

or deceptive practice by the Bank.

Finally, both parties request fees on appeal. Because the Jansens do not 

provide a legal basis for fees, we deny their request. And because the Bank 

does provide a legal and contractual basis for fees, we award them fees.

Standard of Review

We review de novo an order granting summary judgment and engage in 

the same inquiry as the trial court. Assoc. General Contractors of Wash. v. 

State, 200 Wn.2d 396, 403, 518 P.3d 639 (2022). “Summary judgment is 

appropriate when there are no genuine issues of material fact and the moving 

party is entitled to judgment as a matter of law.” Lakehaven Water & Sewer Dist. 

v. City of Federal Way, 195 Wn.2d 742, 752, 466 P.3d 213 (2020) (citing 

CR 56(c)). We consider the evidence and reasonable inferences from it in the 

light most favorable to the nonmoving party. Kim v. Lakeside Adult Family 

Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016). If reasonable minds could 

differ on facts controlling the outcome of the litigation, then there is a genuine 

issue of material fact and summary judgment is inappropriate. Ranger Ins. Co. v. 

Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).
No. 83994-2-I/6

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Breach of Contract Claims

The Jansens assert that the Bank breached the contract in seven different 

ways. The Bank counters that it was contractually permitted to take the actions it 

did. We agree with the Bank.

To prevail on a breach of contract claim, a plaintiff must prove that a valid 

contract exists between the parties, that the contract imposes a duty, that the 

defendant breached that duty, and that the breach proximately caused damage 

to the plaintiff. P.E.L. v. Premera Blue Cross, 24 Wn. App. 487, 496, 520 P.3d 

486 (2022). Whether a party had a contractual duty to take an action at a 

particular time is a question of law. Badgett v. Sec. State Bank, 116 Wn.2d 563, 

568, 807 P.2d 356 (1991). Whether a party breached a contractual duty is a 

question of fact. Frank Coluccio Constr. Co. v. King County, 136 Wn. App. 751, 

762, 150 P.3d 1147 (2007).

When interpreting a contract, “we attempt to determine the parties’ intent 

by focusing on the objective manifestations of the agreement, rather than on the 

unexpressed subjective intent of the parties.” Hearst Comm’ns, Inc. v. Seattle 

Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). Words in a contract are 

given their ordinary, usual, and popular meaning unless a contrary intent is 

shown. Condon v. Condon, 177 Wn.2d 150, 163, 298 P.3d 86 (2013). “Courts 

will not revise a clear and unambiguous agreement or contract for parties or 

impose obligations that the parties did not assume for themselves.” Condon, 177 

Wn.2d at 163.
No. 83994-2-I/7

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1. Breach 1: Section 4(f)(iv)

The Jansens first assert that “[t]he Bank had a duty to verify that invoices 

were properly submitted for work performed before issuing disbursements” and 

that they “were entitled to rely on [section 4(f)(iv)] to ensure that the Bank was 

verifying that work was actually being performed prior to disbursement of the loan 

proceeds.” The Jansens also contend that section 7(m) is ambiguous and may 

give rise to a broader duty of the Bank to review draw requests. And as yet 

another alternative argument, the Jansens contend that the Bank failed to 

provide the requisite notice before waiving its obligations under this section. But 

neither section 4(f)(iv) nor section 7(m) creates any such duty or obligation on the 

part of the Bank.

Section 4(f)(iv) provides, in relevant part:

Contractor will deliver to Lender (i) a Request for Draw/Advance, 

properly completed, and acknowledged by you and Contractor, 

(ii) the invoices for the Work . . . and (iv) all other required 

information described in the Request for Draw/Advance. Lender 

may rely on your statements and Contractor’s statements in the 

Request for Draw/Advance and on the invoices and lien waivers 

submitted by Contractor. Lender has no obligation to verify any of 

that information.

Section 4(f)(iv) specifically states that the Bank “may rely on . . . the 

invoices and lien waivers submitted by Contractor” but that the Bank “has no 

obligation to verify any of that information” before disbursing funds. (Emphasis 

added.) The Jansens’ argument that this section creates a duty on the part of 

the bank is undermined by the plain language of the contract. Nothing in 

section 4(f) affirmatively requires the Bank to refuse to make advances if the 
No. 83994-2-I/8

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conditions were not satisfied. Rather, a plain reading of the section indicates that 

the contractor has a duty to provide invoices to the Bank.

The Jansens disagree, pointing to another section of the contract, 

section 7(m), entitled “No Third Party Beneficiary,” which states:

The Loan Agreement is for the sole benefit of Lender and you, and 

is not for the benefit of anyone else. All conditions to Lender’s 

obligation to make any Advance [sic] are solely for Lender’s benefit. 

No other person or entity will have standing to require satisfaction 

of those conditions or be deemed to be the beneficiary of those 

conditions.

The Jansens assert that section 7(m) is ambiguous and should be construed 

against the Bank. They claim that the contract’s conditions should not benefit 

only the Bank. But they do not elaborate on how section 7(m) creates a duty 

enforceable against the Bank. Section 7(m) by plain, unambiguous language 

merely disclaims the contracts creation of rights in a third-party beneficiary. Their 

argument is unavailing; with or without consideration of section 7(m), the plain 

language of the contract does not create a duty for the Bank to verify invoices 

under the contract.

Finally, without an underlying duty, there is no obligation for the Bank to 

waive. We therefore need not address the Jansens’ argument that the Bank 

failed to properly give notice that it was waiving an obligation to independently 

verify draw/advance request information. This claim for breach fails as a result. 

2. Breach 2: Section 3(c)

The Jansens argue that the Bank violated section 3(c) when it issued 

payments to the contractor even though the contractor’s work deviated from the 
No. 83994-2-I/9

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plans and despite no written change orders being submitted as required by 

section 3(c). Because the Bank had no independent obligation to ensure the 

contractor was abiding by the plans, we reject this argument.

Section 3(c) requires any change orders to be in writing. It states: “Any 

change in the Contract Price, the Work or the Work and Payment Schedule must 

be in a written agreement, signed by you and the Contractor, and approved by 

Lender.” The Jansens point to this language in an attempt to create an obligation 

on the part of the Bank to independently verify that the work was proceeding as 

planned.

But as another subpart of the same section, 3(h), makes clear the Bank 

had no such obligation. It provides: “You understand and agree that you have 

full and sole responsibility to make sure that the Work is fully completed and 

complies with the Plans and Specifications.” Section 3(h) also provides that 

“[n]othing Lender does (including inspecting the Work or making an advance) will 

be a representation or warranty by Lender that the Work complies with . . . this 

Loan Agreement.” Section 3 therefore placed the onus entirely on the Jansens 

to ensure change orders were properly submitted and to certify that all work 

complied with the plans. 

Because the Bank did not have a duty to ensure the contractor performed

in accordance with the plans, this breach of contract claim fails.
No. 83994-2-I/10

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3. Breach 3: Section 4(e)

The Jansens contend that the Bank “made disbursements for unfinished 

or defective work that were not based on progress” as required by section 4(e). 

We disagree.

Section 4(e) gives the Bank wide latitude over when and how to make 

disbursements. It provides that “Lender may disburse funds from the 

Construction Loan Account in such manner and at such rate of completion as 

Lender in its sole discretion deems consistent with construction progress” and 

that “[a]ll disbursements made by Lender for the Work will be based on progress 

only.” 

The Jansens focus their argument on the requirement that disbursements 

be based on progress. But doing so ignores the first half of the section: the 

Bank—not the Jansens—determines what constitutes construction progress. In

signing the loan agreement, the Jansens agreed to accept the Bank’s 

determination of progress. The contract language is clear and the Jansens

cannot now argue for new terms. This breach of contract claim fails.

4. Breach 4: Adjustable Rate Note

The Jansens contend that the Bank breached the terms of the Adjustable 

Rate Note by refusing to convert the loan into a permanent loan. We disagree. 

The undisputed facts demonstrate that the Jansens failed to fulfil their contractual 
No. 83994-2-I/11

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obligations, constituting a default, and as a result, the Bank was no longer 

required to convert the loan. 

Absent a default, the Bank does indeed have a contractual duty to convert 

the loan into a permanent loan.1 However, in the event that the Jansens

defaulted, section 6 allows the Bank to “declare the Loan Agreement, the Note, 

the Security Instrument, or all of them, in default and exercise any remedies 

provided under any of them.” The Bank may also, “without liability, cancel any 

commitment for permanent financing relating to the Property.” Failure to fulfill

any obligation in the loan agreement constitutes an event of default. 

The relevant contractual obligations the Jansens breached are located in 

sections 1(e), 3(a), 4(c), and 7(c). Section 1(e) defines the contractor as “the 

person or entity that will perform the Work” and specifies that “the name of the 

Contractor is set forth on the COVER PAGE to [the] Loan Agreement.” Moceri 

Construction, Inc. is listed as the contractor on the cover page. Section 3(a) 

requires the Jansens “have no other agreements for the Work” other than the 

originally agreed upon contractor. Section 4(c) instructs that “[u]nless Lender 

agrees in writing first, you [the Jansens] may not change the Plans or 

Construction Contract.” Section 7(c), entitled “Cooperation,” requires the 

Jansens to, “at [their] own cost and expense, sign any other instruments or 

documents, and supply any information and data that Lender considers 

necessary to accomplish the purposes of [the] Loan Agreement.” Section 7(c) 

 

1 This requirement is included in the Construction Addendum, which is not 

before this court. However, neither party disputes that the loan was to be 

converted.
No. 83994-2-I/12

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also requires the Jansens to “willingly execute an appropriate modification to 

[the] Loan Agreement” “[i]f, in Lender’s opinion, a material modification of the 

terms of th[e] Loan Agreement is required, or occurs.”

Here, contrary to the Jansens’ contentions, the underlying facts are 

undisputed and the trial court properly decided on summary judgment that the 

Jansens had defaulted. The Jansens do not dispute that they parted ways with 

their original contractor and did so without the Bank’s approval. This was a 

violation of their agreement to not make any changes to the plans or construction 

contract without first obtaining the Bank’s approval. They also do not dispute that 

on April 6, 2020, Grant sent the Bank an e-mail informing its representatives: 

“We are completing the project ourselves personally so there is no new contract 

to give you.” This was a violation of their agreement to “have no other 

agreements for the Work” and their agreement to “sign any other instruments or 

documents . . . that Lender consider[ed] necessary to accomplish” construction. 

Though the Jansens claim they “provided the Bank with all requested 

documents, including a new budget, schedule, and insurance,” this assertion is 

unsupported by the record and does not create an issue of material fact.2

 

2 To support this claim, the Jansens cite generally to their opposition to 

Cammock’s motion for summary judgment. But in that opposition, they do not 

argue that they provided all necessary documents. Instead, they wholly rely on a 

letter from Grant to the Bank in which they say proves they “were not in default 

because [they] made all payments, plan[ned] to finish the work on time, [had] not 

failed to comply with any agreement under the loan agreement and made no 

false statements.” The letter itself makes no mention of documents provided to 

the Bank.
No. 83994-2-I/13

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Because the undisputed facts demonstrate the Jansens defaulted, the 

Bank was allowed to “exercise any remedies” and “without liability, cancel any 

commitment for permanent financing relating to the Property.” This claim for 

breach fails.3

5. Breach 5: Change of Loan Terms

The Jansens assert that the Bank attempted to coerce them into signing a 

Change in Terms Agreement by overcharging interest until they signed the new 

agreement. The Bank does not address this argument in its response. However, 

because the Jansens do not provide adequate support from the record, we 

conclude that this breach claim fails as well.

To defeat summary judgment, the nonmoving party must set forth specific 

facts demonstrating a genuine issue of material fact. Newton Ins. Agency & 

Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 157, 52 P.3d 30 

(2002). “Mere allegations or conclusory statements of fact unsupported by 

evidence are not sufficient to establish a genuine issue of material fact.” Egan v. 

City of Seattle, 14 Wn. App. 2d 594, 608, 471 P.3d 899 (2020). If the nonmoving 

party “fails to make a showing sufficient to establish the existence of an element

essential to [their] case,” then summary judgment is warranted. Atherton Condo. 

Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 

799 P.2d 250 (1990).

 

3 We note, too, that the Bank did eventually convert the loan into a 

permanent loan, despite the Jansens’ default.
No. 83994-2-I/14

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Questions of fact may be determined as a matter of law at summary 

judgment “ ‘when reasonable minds could reach but one conclusion.’ ” Owen v. 

Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005)

(quoting Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985)).

The Jansens argue that the Bank started assessing interest as if $935,000 

had been advanced when in fact only $629,000 had been paid out. Albeit a bit 

unclear, they seem to argue that they were only responsible for any funds 

disbursed before the Bank’s alleged breaches terminated their contractual 

obligations—i.e., $629,000. They further claim that Grant discovered this 

overcharge and asked that it be corrected, but that the Bank refused. They also 

maintain that in their next loan statement, the Bank “silently changed the 

allocation of payments in an apparent attempt to cover up this mistake, by 

reducing the January interest charges and increasing the Jansens’ payment on 

the principal.” But none of these assertions is accompanied by supporting record 

citations. And the Jansens fail to produce any documentation that the Bank 

agreed to only charge interest on the amount of the loan that had been paid up to 

that point or identify which contract term the Bank breached through this alleged 

action.

The Jansens advanced the same argument before the trial court, also 

without supporting documentation. At summary judgment, they claimed the Bank 

had demanded “$3,116.67 in interest charges for the month of January 2021—

even though it had only advanced approximately $629,000 (and therefore less 

than $3,000 in interest had actually accrued).” But the Jansens did not provide 
No. 83994-2-I/15

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the January statement or any of their correspondence with the bank; rather, they 

relied solely on a declaration from Al Jansen in which he recited the same facts. 

The allegations contained in Al’s declaration are insufficient to create an issue of 

material fact because they lack sufficient detail regarding how the Jansens were 

overcharged. Al claims the Bank’s calculations were wrong, but he does not 

dispute that he agreed to the loan terms or explain why the calculations were 

wrong. Moreover, he does not allege that the Bank agreed to alter the terms of 

the loan or provide any documentation supporting such an assertion. Even when 

viewing the evidence in the light most favorable to the Jansens, Al’s declaration 

falls short of creating an issue of material fact. The declaration and the Jansens’ 

briefing are insufficient to show that a duty existed or was breached. This breach 

claim fails.

6. Breach 6: Section 4(b)

The Jansens allege that the Bank failed the essential purpose of the 

contract by failing to fund the loan agreement after they defaulted. The Bank 

contends that it did not need to continue funding the loan after the Jansens 

defaulted. We agree with the Bank. 

Section 4(b) provides that “Lender will have no obligation to disburse any 

Loan Proceeds during any period of time when any default or Event of Default is 

outstanding under th[e] Agreement or any of the other Loan Documents.” The 

Bank’s decision to stop disbursing funds was therefore sanctioned under the 

contract and no breach occurred. 
No. 83994-2-I/16

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7. Breach 7: Attorney Fees

Lastly, the Jansens argue that the Bank “wrongfully assessed attorneys’ 

fees against the Jansens, and attempted to use these attorneys’ fees to coerce 

the Jansens into signing a new agreement.” The Bank counters that section 6(b) 

permits it to assess attorney fees incurred in exercising its rights. We agree that 

section 6(b) permits the Bank to recoup its fees.

Section 6(b)(vi) requires the borrower to “agree to promptly pay to Lender 

all attorney’s fees, costs, and other expenses paid or incurred by Lender in 

enforcing or exercising Lender’s Rights and Remedies under th[e] Loan 

Agreement.”

Though the Jansens claim the Bank’s assessment of “unjustified 

attorneys’ fees was in breach of the [loan agreement],” they do not state which 

provision the Bank allegedly breached and do not argue with specificity why the 

fees assessed were “unjustified.” The Bank had the right to recoup its fees under 

section 6(b); its actions do not constitute a breach.

Duty of Good Faith and Fair Dealing

The Jansens contend the Bank breached its duty of good faith and fair 

dealing by failing to “faithfully cooperate to obtain the principal objective of the 

[loan agreement].” They allege the Bank “purposefully interfered with the 

purpose of the [loan agreement] . . . in an attempt to protect its lien priority status 

against Moceri [the original contractor], who had superior lien rights.” The Bank 

maintains that a standalone claim for breach of good faith and fair dealing does 
No. 83994-2-I/17

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not exist in Washington and that the Jansens’ claim fails as a matter of law. We 

agree with the Bank and affirm the court’s dismissal of this claim. 

In every contract, there is “an implied duty of good faith and fair dealing” 

that “obligates the parties to cooperate with each other so that each may obtain 

the full benefit of performance.” Badgett, 116 Wn.2d at 569. But this duty does 

not impose a “free-floating” obligation of good faith on the parties. Rekhter v. 

Dep’t of Soc. & Health Servs., 180 Wn.2d 102, 112-13, 323 P.3d 1036 (2014). 

Instead, the duty of good faith and fair dealing arises “only in connection with

terms agreed to by the parties.” Badgett, 116 Wn.2d at 569. “ ‘It requires only 

that the parties perform in good faith the obligations imposed by their 

agreement.’ ” Pierce v. Bill & Melinda Gates Foundation, 15 Wn. App. 2d 419, 

433, 475 P.3d 1011 (2020) (quoting Badgett, 116 Wn.2d at 569). Therefore, 

“there cannot be a breach of the duty of good faith when a party simply stands on 

its rights to require performance of a contract according to its terms.” Badgett, 

116 Wn.2d at 570. Thus, here, where the Bank did not breach the contract, it did 

not breach its duty of good faith and fair dealing.

The Jansens claim that the present case is analogous to Silverdale Hotel 

Associates v. Lomas & Nettleton Company. 36 Wn. App. 762, 677 P.2d 773 

(1984). But in Silverdale, the court determined that the lender breached specific 

terms of the contract as well as the duty of good faith and fair dealing. 36 Wn. 

App. at 767. It is therefore not analogous here. The Bank did not violate its duty 

of good faith and fair dealing by standing on its rights and requiring the Jansens 

perform the contract according to its terms.
No. 83994-2-I/18

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Consumer Protection Act

The Jansens contend that issues of material fact exist as to whether the 

Bank violated Washington’s Consumer Protection Act. We conclude that the 

Jansens fail to show an unfair or deceptive act under the CPA and affirm the trial 

court’s dismissal of this claim.

Washington’s Consumer Protection Act makes “[u]nfair methods of 

competition and unfair or deceptive acts or practices in the conduct of any trade 

or commerce” unlawful. RCW 19.86.020. To establish a private claim under the 

CPA, “a plaintiff must establish five distinct elements: (1) unfair or deceptive act 

or practice; (2) occurring in trade or commerce; (3) public interest impact; 

(4) injury to plaintiff in his or her business or property; [and] (5) causation.” 

Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 

780, 719 P.2d 531 (1986). All five elements must be established for a CPA claim 

to succeed. Keodalah v. Allstate Ins. Co., 194 Wn.2d 339, 349-50, 449 P.3d 

1040 (2019). The Jansens fail to establish the first: the existence of an unfair or 

deceptive act.

Whether an act is unfair or deceptive is a question of law. Panag v. 

Farmers Ins. Co. of Wash., 166 Wn.2d 27, 47, 204 P.3d 885 (2009). This 

element can be established in one of three ways: “(i) per se unfair or deceptive 

conduct, (ii) an act that has the capacity to deceive a substantial portion of the 

public, or (iii) an unfair or deceptive act or practice not regulated by statute but in 

violation of the public interest.” State v. Mandatory Poster Agency, Inc., 199 Wn. 

App. 506, 518, 398 P.3d 1271 (2017) (footnotes omitted). A plaintiff does not 
No. 83994-2-I/19

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need to show intent to deceive, only that the act “ ‘had the capacity to deceive a 

substantial portion of the public.’ ” State v. Comcast Cable Commc’ns. Mgmt., 

LLC, 16 Wn. App. 2d 664, 693, 482 P.3d 925 (2021) (quoting Panag, 166 Wn.2d 

at 47). “ ‘[W]hether a deceptive act has the capacity to deceive a substantial 

portion of the public is a question of fact.’ ” Mandatory Poster Agency, 199 Wn. 

App. at 521 (quoting Behnke v. Ahrens, 172 Wn. App. 281, 292, 294 P.3d 729 

(2012)).

Here, the Jansens’ conclusory statements are inadequate to establish the 

Bank acted deceptively. The Jansens allege the Bank’s conduct was “manifestly 

unfair and deceptive” as evidenced by the Bank’s failure to “ensure that the 

fundamental safeguards were followed by the contractor,” “disburse the loan 

funds pursuant to the contract,” and “convert the loan to a permanent loan.” 

They also assert that the Bank “misrepresented that the Jansens were in breach 

of the contract.” But aside from these blanket assertions, the Jansens provide no 

specificity about how they were deceived or how the Bank’s actions had the 

capacity to deceive a substantial portion of the public. And, as discussed above, 

the actions the Jansens dub deceptive are all permissible under the contract. 

In the alternative, the Jansens maintain that the “capacity to deceive a 

substantial portion of the public” inquiry is a question of fact precluding summary 

judgment. But for that to hold true, the Jansens needed to have alleged facts 

sufficient to create a question of fact. They did not. Speculative or conclusory 

allegations do not create a material issue of fact; the Jansens failed to carry their 

burden on summary judgment. Elcon Const., Inc. v. E. Wash. Univ., 174 Wn.2d 
No. 83994-2-I/20

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157, 169, 273 P.3d 965 (2012) (“Conclusory statements and speculation will not 

preclude a grant of summary judgment.”). We affirm the court’s dismissal of the 

CPA claim for failure to meet this first element.

Attorney Fees at Trial Court

Although the Jansens do not assign error to the court’s award of fees to 

the Bank, they contend the award should be reversed. The Jansens maintain 

that if they prevail on appeal, the Bank’s award of fees should be reversed. But 

because the Bank prevails on appeal, we affirm the fee award.

Attorney Fees on Appeal

Both the Jansens and the Bank request fees on appeal. The Bank 

requests fees per the terms of the contract and RCW 4.84.330. Under 

RCW 4.84.330, a unilateral fee provision in a contract is read bilaterally to permit 

the prevailing party in any contract action to recoup its attorney fees and costs. 

Thus, as the prevailing party on appeal, the Bank is entitled to fees.

The Jansens claim they are entitled to attorneys’ fees and costs pursuant 

to RCW chapter 39.08, RCW chapter 60.28, and Olympic Steamship Company, 

Inc. v. Centennial Insurance Company, 117 Wn.2d 37, 811 P.2d 673 (1991). 

None of these sources of authority supports their claim to fees. RCW 

60.28.030 concerns lien foreclosures and provides that in “any action brought to 

enforce the lien, the claimant, if he or she prevails, is entitled to recover . . . 

attorney fees in such sum as the court finds reasonable.” Because the Jansens 

do not allege that any kind of lien is involved here, RCW 60.28.030 is

inapplicable. RCW 39.08.030 applies to public contracts and allows a party, in 
No. 83994-2-I/21

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an action on bond, to recover attorney fees. Here, the Jansens are not a public 

party and cannot recover fees under this chapter. Lastly, in Olympic Steamship, 

our state Supreme Court held that an “insured who is compelled to assume the 

burden of legal action to obtain the benefit of its insurance contract is entitled to 

attorney fees.” 117 Wn.2d at 54. The Jansens are not an insured party in the 

present case and do not cogently explain why Olympic Steamship’s fee rule 

applies to them.

Because the Jansens do not demonstrate entitlement to fees, and 

because the Bank does, we deny their request. 

Affirm.

WE CONCUR: