COX, J.
At issue is whether Huard Septic Design and Monitoring LLC is entitled to an award of reasonable attorney fees based on a contract with Prestige Custom Builders Inc. Because there is no contract between them that supports such an award, we affirm the trial court's denial of reasonable attorney fees.
In April 2006, Prestige and Huard entered into a Master Subcontractor Agreement ("Master Agreement"), as "Contractor" and "Subcontractor," respectively.
This five-page contract, drafted by Prestige, provided for the terms and conditions that would apply to Huard "furnishing any materials and/or performing any work on" construction projects that Prestige would undertake in the future. It further provided that an individual construction project would be described in "a separate addendum agreement called a Project Subcontract." And it specified what constituted a "Project Subcontract."
Another document in the record before us is dated April 10, 2006.
In 2012, Michael and Lois Anne Keith commenced this action, suing their general contractor, Prestige, alleging substandard work and numerous defects in the construction of their home. Subsequently, Prestige impleaded four subcontractors, including Huard, claiming they were liable for the alleged defects.
Huard did not move to compel arbitration, notwithstanding that Article XVI of the Master Agreement provides for arbitration of disputes. Rather, it moved for summary judgment, pursuant to CR 56. The trial court granted this motion and dismissed with prejudice Prestige's claims against Huard.
Huard then moved for an award of attorney fees incurred in defending against Prestige's claims. The trial court denied this motion.
Huard appeals.
Huard first argues that it is entitled to attorney fees based on an attorney fee provision in what it characterizes as the "Project Subcontract." In response, Prestige contends that this provision in the Project Subcontract does not apply. Thus, a threshold issue is whether the terms of the Master Agreement control over the terms in the Project Subcontract. We hold that the terms and conditions of the Master Agreement control, not those of any other document in this record.
"The `touchstone of contract interpretation is the parties' intent.'"
This court may affirm a trial court's decision on any basis supported by the record.
Article I of the Master Agreement provides as follows:
The emphasized language in the first three paragraphs of the above excerpt shows that the parties intended for the Master Agreement to control the parties' "rights and privileges" that "arise[s] out of [Huard] furnishing any materials and/or performing any work on" Prestige's construction projects. Moreover, the terms and conditions of the Master Agreement apply to the projects "regardless of whether these terms and conditions are referenced" in subsequent documents. This provision is explicit that "
The objective manifestation of intent of this provision is clear — the terms and conditions of the Master Agreement control for any projects for which Huard provided materials and/or work, and there are no exceptions. Further, this is true even "[i]f any terms and conditions on any preprinted form from [Prestige] conflicts with this Master Agreement . . . ."
In short, the terms and conditions of the Master Agreement control, and the terms and conditions of subsequent agreements between these parties do not. Thus, to the extent that Huard relies on provisions of what it claims is the "Project Subcontract" defined in the Master Agreement, those provisions are not applicable.
Notwithstanding the clear wording of the Master Agreement that we just discussed, Huard argues that the terms and conditions of what it characterizes as the "Project Subcontract" apply regarding the award of attorney fees. Specifically, it contends that the paragraph titled "DISPUTES" in the preprinted portion of the April 10, 2006 document that it drafted and sent to Prestige is applicable. Huard is mistaken.
First, we doubt that the April 10, 2006 document constitutes a "Project Subcontract," as defined in the Master Agreement. The Master Agreement specifies that such a subcontract is:
The April 10, 2006 document that contains what appears to be Huard's bid specifying details regarding work to be done at the Keiths' home is not signed by Huard. Thus, it does not qualify as a Project Subcontract under the plain terms of the Master Agreement between Prestige and Huard.
We also note that the April 10, 2006 document that Huard drafted appears to primarily define the terms and conditions between "Owner" and Huard over the work to be done on the Keiths' property. For example, the word "Owner" appears throughout the preprinted terms.
At oral argument, Huard noted that the signature of someone named Terry appears on the face page of this document. But that does not change our view of the document's effect. This signature appears to be next to initials showing the correction of the design fee from $2,000 to $1,850.
Even if Huard could persuasively argue why we should ignore its inability to overcome these threshold obstacles, Huard's arguments based on this document are wholly unpersuasive.
Huard asserts that the Master Agreement incorporates what it characterizes as the Project Subcontract. But there are no terms or conditions in the Master Agreement, in our view, that support Huard's argument that these terms and conditions of the April 10, 2006 document are incorporated into the Master Agreement. Thus, Huard's arguments based on incorporation are unpersuasive. Further, the terms of the Master Agreement characterize a project subcontract as an addendum agreement to the Master Agreement. This does not advance Huard's argument. Even if the April 10, 2006 document is an addendum to the Master Agreement, the plain language of the Master Agreement states that the controlling terms are those contained in the Master Agreement. The terms in the April 10, 2006 document simply do not control.
Huard argues that Article I of the Master Agreement does not address the relationship between the Master Agreement and other documents. Huard contends that Article I only controls conflicts between terms in the Master Agreement and terms in Prestige's own preprinted forms. Huard is incorrect.
Huard relies solely on the following emphasized language from Article I:
While Huard is correct that this emphasized language addresses conflicts between the Master Agreement and terms on any preprinted written form from Prestige, Huard's reading of Article I is too narrow. Looking to Article I as a whole, it is clear that it addresses the relationship between the Master Agreement and other documents. Specifically, the parties intended for the terms of the Master Agreement to control, regardless of the existence of terms in other documents. This is especially apparent from the sentence that immediately precedes the one emphasized by Huard. That sentence states, "The intent is that if any services are procured and agreed by both parties during the term of this Agreement,
Next, Huard argues that there is no conflict between the Master Agreement and what it characterizes as the Project Subcontract. In response, Prestige argues that the trial court properly found that provisions in these contracts conflict and that the Master Agreement controls. But, neither party explains why the issue of whether the provisions conflict is material. As just discussed, Article I indicates that the terms of the Master Agreement apply without limitation or condition. Huard does not identify any conditional language in the Master Agreement that requires there to be a conflict in order for the terms of the Master Agreement to control. Thus, this argument does not change our conclusion.
We next consider whether reasonable attorney fees are awardable under any of the terms and conditions of the Master Agreement. We conclude, as the trial court concluded, that this agreement does not support such an award.
"Washington follows the American rule `that attorney fees are not recoverable by the prevailing party as costs of litigation unless the recovery of such fees is permitted by contract, statute, or some recognized ground in equity.'"
"Whether a contract or statute authorizes an award of attorney fees is a question of law reviewed de novo."
Huard argues that it is entitled to attorney fees under Article XVI of the Master Agreement, the "Disputes & Arbitration" provision. The trial court rejected this argument. So do we.
In its order denying fees, the trial court concluded that Huard took no action to compel arbitration. It also concluded that the Master Agreement "unambiguously allowed attorney's fees only for the prevailing party in an arbitration proceeding."
A plain reading of the Disputes & Arbitration provision supports the trial court's conclusion. This provision states:
This emphasized language expressly indicates that attorney fees are available for the prevailing party in an arbitration proceeding. Nothing in this provision indicates that attorney fees are available for the prevailing party in any other type of proceeding. As the trial court properly concluded, the Master Agreement is silent as to whether a party who prevails at trial is entitled to an award of attorney fees. Accordingly, because this case did not involve an arbitration proceeding, this provision does not provide a basis for a fee award to Huard.
Huard makes several arguments that it is entitled to fees under this provision. None are persuasive.
First, Huard argues that an "arbitration proceeding" is "contractually defined as including a suit filed in a court of competent jurisdiction and determined according to the Mandatory Rules of Arbitration."
This provision does not contractually define "arbitration proceeding" in the manner suggested by Huard. And when this provision is reasonably read as a whole, it is clear that the parties intended for an "arbitration proceeding" to involve an arbitrator. Notably, the provision consistently refers to the "arbitrator" when it discusses the parties' contractual modifications of the Mandatory Arbitration Rules. Nothing about this provision suggests that an "arbitration proceeding" is defined merely as filing suit in a court of competent jurisdiction that includes mandatory arbitration proceedings as an option to resolve disputes.
Moreover, it is without serious dispute that this case was never "decided according to the Mandatory Arbitration Rules." Huard failed to move to compel arbitration. Rather, it moved for summary judgment pursuant to CR 56. This case, as this record amply demonstrates, was decided under Rule 56 of the Civil Rules for Superior Court, not the Mandatory Arbitration Rules.
Huard relies on MAR 1.3 to support its argument. That rule provides that a case filed in the superior court remains under the jurisdiction of the superior court in all stages of the proceeding, including arbitration.
Second, Huard points out that the provision recognizes a right to fees when "the dispute is resolved through either `settlement
Third, Huard argues that the phrase "in all cases" in the last sentence of this provision supports the conclusion that it is entitled to fees.
Fourth, Huard argues that Prestige's construction of this provision "leads to absurd consequences."
Finally, Huard argues that, at the very least, this provision is ambiguous and, consequently, it must be interpreted in Huard's favor since it was drafted by Prestige. But, as already discussed, the language of this provision is plain and unambiguous. Thus, this argument is also unpersuasive.
Huard argues that it is entitled to fees under Article XIX of the Master Agreement, the "Indemnification" provision. Specifically, Huard argues that under RCW 4.84.330, this provision is bilateral. Because Huard failed to properly preserve this argument below, we decline to consider it.
Under RAP 2.5(a), the appellate court may refuse to review any claim of error that was not raised in the trial court. Generally, it does not review "an issue, theory, argument, or claim of error not presented at the trial court level."
In its motion for award of attorney fees, Huard cited generally to the Master Agreement and the Project Subcontract.
In Huard's reply in support of its motion, it again focused on the Project Subcontract and on the language of Article XVI, the Disputes & Arbitration provision of the Master Agreement.
But this citation in the footnote does not properly preserve Huard's argument. First, this citation, in the reply brief, was too late to raise properly the argument before the trial court. Second, Huard did not make any argument. It neither provided the language of this provision, nor did it argue why this provision entitled Huard to fees. Third, Huard did not cite to this provision in the footnote to make an independent argument that it was entitled to fees under this section. Rather, it cited to this provision to support its argument that these provisions "underscore[] Prestige's intent that attorneys' fees be recoverable in any dispute."
Huard argues that "RCW 4.84.330 was clearly raised below by Huard."
For these reasons, we decline to consider this argument any further.
Huard finally argues that it is entitled to an award of attorney fees for this appeal, citing the principle that "`[a] contract providing for an award of attorney fees at trial also supports such an award on appeal.'"
We affirm the decision of the trial court denying reasonable attorney fees and deny Huard's request for reasonable attorney fees on appeal.
MICHAEL J. TRICKEY and ANN SCHINDLER, JJ., concurs.