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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON INTEGRATED FACILITIES MANAGEMENT, LLC, a Washington limited liabilities corporation, dba SUN LIGHTING, fka PARTNER MERCHANT SERVICES, INC., Appellant,

v. CITY OF MERCER ISLAND, a municipal corporation inthe State ofWashington, Respondent. No. 73647-7- DIVISION ONE

UNPUBLISHED OPINION FILED: April 18, 2016



### Becker, J. — Integrated Facilities Management LLC (IFM)appeals the 

### summaryjudgmentdismissal of its suit againstthe city ofMercer Island, 

### contending the trial court erred in granting summaryjudgmenton the grounds of laches and equitable estoppel. We agree and reverse. 

### This case arises from the city's yearly contractfor installation of holiday 

### lights. Between 2005 and 2009, IFM—operating under the trade name Sun Lighting or Electric Elves—installed holidaylighting displays for the city. IFM 

### typically put up the lights at the end of October and removed them at the end of the following January. 

### InSeptember2010, Robert Folgedalen, one of the principals ofIFM, contacted Keith Kerner, the cityparks director, "toaffirm our existing contractforNo. 73647-7-1/2 

### the execution of this decor installation." Folgedalen and Kerner set a date of October 30, 2010, for the installation. Shortly thereafter, Jason Kintner replaced Kerner as the parks director. 

### As part ofthe city's sustainability initiative, Kintner requested IFM utilize lightemitting diode (LED) lights instead of incandescent lights, but Folgedalen declined, stating "the project was already under contract." Kintner searched city records and located copies of signed contracts on city letterhead for the 2007 and 2008 holiday seasons. Each contract terminated at the end ofthe holiday season and was signed by the city manager or his designee. He did not find a signed 2009 contract and asked Folgedalen to provide a copy. Folgedalen provided Kintner a copy of a two-page document on Sun Lighting letterhead entitled "Holiday DecorAgreement." The first page ofthe document contains an itemized description ofwork to be done, and the second page contains terms and conditions, including a clause which provided that the agreement would "automatically renew for the next period with a 10% increase for the same scope of work, unless written cancellation notice is made in writing 

### within 30 days after lightremoval or by Jan. 31st ofremoval yearwhichever is sooner." The document was dated October 2, 2009, and signed by Kerner. 

### Believing thatthe document signed by Kerner did not constitute a valid contract because itwas not on city letterhead or signed by the city manager, 

### Kintner informed Folgedalen by e-mail on October 29, 2010, thatthe city would solicit bids forthe 2010 holiday season. On November 1, 2010, Folgedalen sent 

### the following e-mail inresponse: "So the Citybelieves we are currently not under
2No. 73647-7-1/3 contract? Please elaborate." Kintner responded that "the agreement. .. which Keith Kerner signed is no longer valid" and repeated the invitation to IFM to 

### submit a bid by November 5, 2010. On November 3, 2010, Folgedalen called Kintner and "made itclear our existing contract was valid." Kintner sent Folgedalen an e-mail on November4, 2010, stating: 

### Sorry forthe delay in my response. It's been very busy, and I've been in and out ofthe office. Here is the CityAttorney's Office 

### phone number.... I've informed them thatyou may be calling for clarification. It's going to be more direct and easierfor your questions to be answered if you contactthem directly. 

### Folgedalen's attorney left two voicemail messages withthe cityattorney but did not receive a response. 

### On November 5, 2010, Folgedalen submitted a bid forthe project under the business name NWChristmas Lighting. On November 9, 2010, the city announced it would award the contract to a different vendor that submitted a 

### lowerestimate. On November 10, 2010, Folgedalen contacted Kintner by e-mail and asked the price ofthe lowest bid. Kintnerresponded, "Hollywood Lights 

### came inwith 100% LED lights and increasing the string count for a price of $20,314." Folgedalen contacted Kintner by phone "expressing disappointment and concern for a material breach ofour contract." 

### On May 12, 2014, IFM submitted a claim fordamages againstthe city, 

### and on August 12, 2014, IFM sued the cityfor breach of contract, contending that 

### the city had terminated itsautomatically renewing contractwithoutproviding 

### propernotice. In the alternative, IFM claimed, itincurred $45,000in lost revenue byrelying on Kerner's apparent assentto a valid contract. 3No. 73647-7-1/4 The city moved for summaryjudgment. The trial court dismissed IFM's 

### suit, concluding thatthe breach ofcontract claimwas barred by the doctrines of laches and equitable estoppel and thatthe equitable claim was barred by the statute oflimitations. IFMappeals. 

### We review an ordergranting summaryjudgmentde novo, performing the
same inquiry as the trial court. Owen v. Burlington N. &Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). We consider all facts and reasonable 

### inferences drawn therefrom inthe light mostfavorable to the nonmoving party. Owen, 153 Wn.2d at 787. A motion for summaryjudgmentwill be granted ifthe moving party demonstrates the lack of a genuine issue as to any material fact, and the nonmoving party fails to "setforth specific facts which sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue as to a material fact." Meyer v. Univ. ofWash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986). A party asserting an equitable remedy such as laches or estoppel has the burden to prove the requirements ofthat remedy. King County v. Taxpayers of King County. 133 Wn.2d 584, 642, 949 P.2d 1260 (1997). cert, denied. 522 U.S. 1076 (1998); Teller v. APM Terminals Pac. Ltd., 134 Wn. App. 696, 712, 142P.3d 179(2006). 

### IFM challenges only the trial court's dismissal of its breach ofcontract claim on the grounds of laches and equitable estoppel. We conclude that neither laches nor equitable estoppel applies here. The doctrine of laches bars a cause of action ifthe defendant establishes 

### that (1) the plaintiffunreasonably delayed commencing an action; and (2) the
4No. 73647-7-1/5 defendantwas materially prejudiced by the delay in bringing the action. Auto. United Trades Org, v. State, 175 Wn.2d 537, 542, 286 P.3d 377 (2012). The main component ofthe doctrine is not so much the period ofdelay in bringing the action, butthe resulting prejudice and damage to others. Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 848-49, 991 P.2d 1161 (2000). '"[S]o long as parties are inthe same condition, itmatters littlewhether one presses a 

### right promptly or slowly.'" Brostv. L.A.N.D., Inc., 37 Wn. App. 372, 376, 680 P.2d 453 (1984), guoting Crodle v. Dodge, 99 Wash. 121 131, 168 P. 986 

### (1917). Absent unusual circumstances, the doctrine oflaches should not be invoked to bar an action short ofthe applicable statute of limitation. In re 

### Marriage ofCapetillo, 85 Wn. App. 311, 316. 932 P.2d 691, review denied, 132 Wn.2d 1011 (1997). 

### Here, IFM filed its complaint less than four years afterthe alleged breach. The statute oflimitations for breach of a written contract is six years. RCW 

### 4.16.040(1). We find no unusual circumstances present here thatwould justify the application oflaches. Norcan we see howthe city's interests were 

### prejudiced. The city claims that itwas "damaged because of Sun Lighting's unreasonable delay" because it"sought bids, obtained a more favorable price 

### than offered inFolgedalen's bid, and then paid for new holiday lighting to be 

### installed." But the citycontracted with a lower bidder a mere 11 days after notifying IFM that itwould solicit bids. Whether IFM waited 4 months or 4 years to sue for breach would not have materially affected the city's position. Accordingly, laches does not apply. 5No. 73647-7-1/6 

### The principle of equitable estoppel isbased upon the reasoning that "a party should be held to a representation made or position assumed where 

### inequitable consequences would otherwise result to anotherparty who has justifiably and ingood faith relied thereon." Wilson v. Westinghouse Elec. Corp.. 

### 85 Wn.2d 78, 81, 530 P.2d 298 (1975). The elements ofequitable estoppel are: (1) an admission, statement, or act inconsistentwith a claim afterward asserted; (2) action by another inreasonable reliance on that act, statement, or admission; 

### and (3) injury to the party who relied ifthe court allowsthe first party to contradict
or repudiate the prior act, statement, or admission. Robinson v. City of Seattle, 

### 119Wn.2d34, 82, 830 P.2d 318, cert, denied, 506 U.S. 1028(1992). The citycontends that IFM failed to adequately protestthe city's decision to solicit bids, and infact submitted its own bid through a different business


### name. Itargues that this is inconsistentwith IFM's claim ofbreach. Butthe city instructed IFM it would have to submit a new bid to be considered forthe project. 

### The citycannot establish that IFM took an inconsistent position for merely doing what the city told it to do. Moreover, whether IFM had a valid contract with the 

### city is a question of law. Equitable estoppel does not apply when the representations are questions of law ratherthan questions offact. Dep't of Ecology v. Theodoratus, 135 Wn.2d 582, 599-600, 957 P.2d 1241 (1998). And,
as discussed above, reliance on IFM's actions was not the basis for the city's decision to solicit bids for the project. Instead, the city solicited bids based on its
own beliefthat itwas not contractually obligated to IFM. The city fails to show that equitable estoppel applies.
6No. 73647-7-1/7
Because the trial court dismissed IFM's suit on laches and equitable estoppel grounds, and neither ofthese doctrines bar IFM's claim, we reverse the 

### summaryjudgment order and remand for further proceedings.1


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WE CONCUR: 

# 6dX.J
.

1Consequently, we need notaddress IFM's claims regarding alleged errors in the trial court's findings offact. 7