[No. 22339-6-III. Division Three. September 21, 2004.]
BASIN PAVING COMPANY , Plaintiff , v. CONTRACTORS BONDING AND INSURANCE COMPANY , Defendant , MIKE M. JOHNSON , INC ., Respondent , THE TOWN OF LIND , Appellant .
[1] Courts - Rules of Court - Application - Review - Standard of Review. The application of a court rule to a particular set of facts is reviewed de novo.
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[2] Statutes - Application to Facts - Review - Standard of Review. The application of a statute to a particular set of facts is reviewed de novo.
[3] Pleading - Cross Claims - Nature - Relationship to Complaints. Cross claims are analogous to complaints in that both seek affirmative relief.
[4] Pleading - Amendment - Relation Back - Purpose. CR 15(c), which allows an amended pleading to relate back to the date of the original pleading, facilitates a proper decision on the merits and is intended to provide parties with adequate notice of the basis of the claims or defenses asserted against them.
[5] Pleading - Amendment - Relation Back - New Claim or Issue - Contract Claims in Original Pleading - Addition of Estoppel Theories. When an original pleading states causes of action based on contract theories, an amendment to the pleading that merely adds estoppel theories relates back to the date of the original pleading under CR 15(c).
[6] Public Contracts - Construction Contracts - Action on the Contract - Cross Claim - Offer To Settle - Limitation Period - Commencement - Amended Claim. When a cross claim in an action arising out of a public works contract is later amended, the 120-day period specified by RCW 39.04.240 (1)(b) within which to make an offer to settle the cross claim commences from the date the original cross claim was served and filed and not from the date the amended cross claim was served and filed if the amended cross claim relates back to the date of the original cross claim under CR 15(c).
[7] Appeal - Review - Issues First Raised in Reply Brief - In General. An issue raised and argued for the first time in a reply brief will not be considered by a reviewing court.Nature of Action: Action by a subcontractor on a municipal wastewater and water system project against the general contractor and the contractor's bonding company for damages arising from the tardy completion of the contract. The contractor cross-claimed against the municipality for additional compensation arising from the excavation of more subsurface rock than expected when the contract was let. The contractor subsequently amended the cross claim to add estoppel theories. The municipality then made a settlement offer, which was served on the contractor 138 days after the original cross claim and 54 days after the amended cross claim. The settlement offer provided that the municipality would seek statutory attorney fees and
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costs if an award obtained by the contractor was less than the settlement offer.
Superior Court: After entering a summary judgment in favor of the municipality on the cross claim and entering an order limiting judgment against the municipality to an amount less than the amount of the settlement offer, the Superior Court for Adams County, No. 97-2-00226-9, Richard W. Miller, J., on July 29, 2003, entered an order denying the municipality's motion for statutory attorney fees and costs, concluding that the settlement offer was untimely under the applicable statute providing for attorney fees and costs because the offer was served more than 120 days from the date of the original cross claim.
Court of Appeals: Holding that the amended cross claim related back to the date of the original cross claim and that the settlement offer was, therefore, untimely for purposes of an award of attorney fees and costs when considered from the date of the original cross claim, the court affirms the trial court's order denying the municipality's motion for attorney fees and costs.
Mark A. Wheeler , for appellant .
Terry E. Miller , for respondent .
BROWN , J . - Today, the issue is whether the trial court erred in not awarding attorney fees for an offer of settlement of construction contract claims made to Mike M. Johnson, Inc. (MMJ) by the town of Lind (Lind) under RCW 39.04.240 (1)(b). Lind's offer to settle exceeded the summary judgment award to MMJ, but the trial court held Lind's offer exceeded the time limit set in the statute when considered from MMJ's original cross claim as compared to
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MMJ's later amended cross claim. We agree with the trial court, and affirm.
FACTS
The background facts are found in Basin Paving Co. v. Mike M. Johnson, Inc ., 107 Wn. App. 61 , 27 P.3d 609 (2001), review denied , 145 Wn.2d 1018 (2002). Relevant now is Lind's July 7, 1998 $40,000 offer under RCW 39.04.240 (1) (b) to settle MMJ's cross claim in a construction dispute. The statute sets a 120-day time limit for making settlement offers.
By February 19, 1998, MMJ completed service and filing of its initial cross claim against Lind. MMJ alleged breach of express and implied warranties, breach of the covenant of good faith and fair dealing, and breach of contract. By May 14, 1998, MMJ completed service and filing of an amended cross claim, which added estoppel theories. Lind's settlement offer was served 138 days after the initial cross claim and 54 days after the amended cross claim. The settlement offer provided that Lind would seek attorney fees and costs under RCW 39.04.240 (1)(b) if an award was less than the offer.
MMJ rejected Lind's offer. Lind successfully requested summary judgment against MMJ and received an order limiting the judgment against it to $7,290.12. Lind then requested attorney fees and costs, arguing it had prevailed under its offer of settlement, which had offered $40,000 to settle. The court denied Lind's request, concluding Lind's settlement offer was untimely under RCW 39.04.240 (1)(b) because the settlement offer came more than 120 days from the initial cross claim. Lind appealed.
ANALYSIS
The issue is whether the trial court erred in denying Lind's attorney fees and costs request by concluding the timeliness of Lind's offer of settlement was to be considered
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from MMJ's initial cross claim rather than its amended cross claim.
[1, 2]Neither party briefed the standard of review. Generally, we review an award of attorney fees for abuse of discretion. Mayer v. City of Seattle , 102 Wn. App. 66 , 79, 10 P.3d 408 (2000). But, applications of court rules and statutes are reviewed de novo. State v. Carlyle , 84 Wn. App. 33 , 35-36, 925 P.2d 635 (1996) (court rule); State v. Johnson , 96 Wn. App. 813 , 816, 981 P.2d 25 (1999) (statute). Thus, our review is de novo.
[3]RCW 39.04.240 (1)(b) provides: "[T]he time period for serving offers of settlement on the adverse party shall be the period not less than thirty days and not more than one hundred twenty days after completion of the service and filing of the summons and complaint." While this statute does not specifically reference cross claims, such claims are analogous to complaints in that both seek affirmative relief. See Kuhlman Equip. Co. v. Tammermatic, Inc ., 29 Wn. App. 419 , 424, 628 P.2d 851 (1981) ("[A]ffirmative relief in the form of a cross claim is not a defense or objection."). Here, Lind filed its offer of settlement over 120 days from the original cross claim, but within the time limits if considered from the amended cross claim.
[4]Regarding amended pleadings, CR 15(c) states: "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." CR 15 " 'facilitate[s] a proper decision on the merits.' " Herron v. Tribune Publ'g Co ., 108 Wn.2d 162 , 165, 736 P.2d 249 (1987) (quoting Caruso v. Local Union No. 690 of Int'l Bhd. of Teamsters , 100 Wn.2d 343 , 349, 670 P.2d 240 (1983)). Further, the purpose is to provide parties with adequate notice of the basis of the claims or defenses asserted against them. Herron , 108 Wn.2d at 165 .
[5, 6]MMJ initially pleaded causes of action based on contract theories. When it amended its cross claim, it merely added estoppel theories. Given the similarity of
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claims in MMJ's original pleading and amended pleading, we conclude the amended pleading "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." CR 15(c). Under CR 15(c), the amended pleading relates back to the date of the original pleading, February 19, 1998. Lind's settlement offer was filed on July 7, 1998, 138 days later. Per RCW 39.04.240 (1)(b), the settlement offer was untimely.
[7]Lind argues in its reply brief that RCW 39.04.240 (1)(b) is ambiguous. First, we will not consider arguments raised for the first time in a reply brief. RAP 10.3(c); Cowiche Canyon Conservancy v. Bosley , 118 Wn.2d 801 , 809, 828 P.2d 549 (1992). Second, the term "completion" in RCW 39.04.240 (1)(b) is not ambiguous given CR 15(c).
In sum, the trial court correctly ruled the offer of settlement was untimely based upon its application of CR 15(c) and RCW 39.04.240 (1)(b). The trial court did not err.
Affirmed.
SCHULTHEIS and KURTZ , JJ ., concur .