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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

No. 66453-1-I/2

KIMACO, LLC, a Washington limited 
liability company,                                )         No. 66453-1-I
                                                  )
                      Plaintiff,                  )          DIVISION ONE
                                                  )
              v.                                  )         UNPUBLISHED OPINION
                                                  )
WRIGHT DEVELOPMENT WEST COAST,                    )
LLC, an Oregon limited liability company,         )
                                                  )
                      Appellant,                  )
                                                  )
MUKILTEO HOTEL, LLC, a Washington                 )
limited liability company,                        )
                                                  )
                      Respondent,                 )
                                                  )
WESTCHESTER FIRE INSURANCE                        )
COMPANY, Bond No. KO8367309, a New                )
York corporation; OLD REPUBLIC                    )
CONSTRUCTION INSURANCE AGENCY,                    )
INC., Bond No. YL1264708, a Washington            )
corporation; WELLS FARGO BANK                     )
NATIONAL ASSOCIATION, a national                  )
banking institution; SALO STEEL, INC., a          )
Washington corporation; JABEZ                     )
HOLDINGS, INC., a Washington                      )
corporation; MONCRIEFF                            )
CONSTRUCTION, INC., a Washington                  )         FILED: February 21, 2012
corporation;                                      )
                                                  )


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No. 66453-1-I/3

SONOMA PACIFIC CONSTRUCTION,                     )
LTD., a Washington corporation;                  )
TRADESMAN, LLC, a Washington limited             )
liability company; KVN CONSTRUCTION,             )
INC., a Washington corporation; PAPÉ             )
MACHINERY, INC., a Washington                    )
corporation; J&R EXTERIORS, LLC, a               )
Washington limited liability company;            )
PACIFIC LUMBER SUPPLY, INC., a                   )
Washington corporation; RIVERSIDE                )
SAND AND GRAVEL, INC., a Washington              )
corporation; DON'S A1 GLASS, LLC, a              )
Washington limited liability company; HRM        )
NORTHWEST, LLC, a Washington limited             )
liability company; RESIDENTIAL FIRE              )
SPRINKLERS, INC., A Washington                   )
corporation; NORTWEST CUSTOM                     )
GUTTERS, LLC, a Washington limited               )
liability company; NORTHSHORE                    )
PAVING, INC., a Washington corporation;          )
FASTRACK CONTRACTING, LLC, a                     )
Washington limited liability company; and        )
DOE individuals and ROE corporations I-X,        )
                                                 )
                                                 )
                      Defendants.                )
 

       Appelwick,  J.  --  When a dispute arose between Wright and Mukilteo 

Hotel, Wright brought a motion to compel arbitration.  The trial court denied that 

motion, finding Mukilteo Hotel did not agree to arbitration.  Wright appeals the 

trial court's order, arguing that the contract should not be read to impose a 

unilateral arbitration obligation on Wright, while giving Mukilteo Hotel the option 

to choose arbitration.  Because the contract's terms plainly reflect the arbitration 

requirement was solely applicable to Wright and not reciprocal, we affirm.

                                        FACTS

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No. 66453-1-I/4

       Mukilteo Hotel LLC hired Wright Development West Coast LLC to provide 
general contractor services in building a hotel in Mukilteo, Washington.1           The 

parties entered into a fixed sum construction contract containing terms and 

conditions, one of which was titled "CLAIMS AND DISPUTE RESOLUTION."                   It 

stated in part: "Contractor agrees to resolve any dispute arising from the 

Agreement by binding arbitration."  Wright was identified as the contractor.  

       In April 2010, Kimaco LLC filed a lawsuit naming Mukilteo Hotel and 

Wright as defendants.  Wright filed a claim of lien against property owned by 

Mukilteo Hotel in May 2010 and amended that claim of lien the following month.  

Mukilteo Hotel responded by filing a motion for summary judgment in November 

2010, seeking to invalidate the lien.  Wright filed a motion to compel arbitration 

in December 2010, contending this dispute was subject to the arbitration clause 

in the terms and conditions of their contract.  Mukilteo Hotel responded with its 

own motion arguing it never agreed to arbitrate disputes.  The trial court denied 

Wright's motion and granted Mukilteo Hotel's, finding that the contract does not 

contain Mukilteo Hotel's assent to arbitration, and therefore Mukilteo Hotel is not 

bound by any enforceable arbitration agreement.           Wright timely appealed the 

trial court's order.  

                                    DISCUSSION

   I.  The Arbitration Provision

       RCW 7.04A.070 governs motions to compel or stay arbitration.  Mukilteo 

1 Wright Development West Coast LLC has since ceased to exist following a 
merger.  The surviving entity and successor in interest is Wright Hotel 
Development Inc.  They are hereafter referred to collectively as "Wright."
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No. 66453-1-I/5

Hotel responded to Wright's motion to compel arbitration in accordance with 

RCW    7.04A.070(2), arguing that there was no enforceable agreement to 

arbitrate.  RCW 7.04A.070(2) provides:

       On motion of a person alleging that an arbitration proceeding has 
       been initiated or threatened but that there is no agreement to 
       arbitrate, the court shall proceed summarily to decide the issue.  If 
       the court finds that there is an enforceable agreement to arbitrate, 
       it shall order the parties to arbitrate.  If the court finds that there is 
       no enforceable agreement, it may not order the parties to arbitrate.

Arbitrability is a question of law we review de novo.  McKee v. AT&T Corp., 164 

Wn.2d 372, 383, 191 P.3d 845 (2008).  The burden of proof is on the party 

seeking to avoid arbitration.  Id.  Washington has a strong public policy favoring 

arbitration.  Heights at Issaquah Ridge Owners Ass'n v. Burton Landscape Grp., 

Inc., 148 Wn. App. 400, 403-04, 200 P.3d 254 (2009).  But despite this public 

policy, "'arbitration is a matter of contract and a party cannot be required to 

submit to arbitration any dispute which he has not agreed so to submit.'"  

Woodall v. Avalon Care Ctr.-Fed. Way, LLC, 155 Wn. App. 919, 923, 231 P.3d 

1252 (2010) (quoting Satomi Owners Ass'n v. Satomi, LLC, 167 Wn.2d 781, 810, 

225 P.3d 213 (2009)).  When the validity of an agreement to arbitrate is 

challenged, courts apply ordinary state contract law.  McKee, 164 Wn.2d at 383; 

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 131 

L. Ed. 2d 985 (1995).

       Washington follows the objective manifestation test for contracts.  

Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 177, 94 P.3d 945 

(2004).  For a contract to form, the parties must objectively manifest their mutual 

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No. 66453-1-I/6

assent, and the terms assented to must be sufficiently definite.  Id. at 177-78.  

       The relevant term of the contract between Mukilteo Hotel and Wright 

provides: 

       In the event a dispute arises between [Mukilteo Hotel] and 
       Contractor, Contractor shall continue to perform the Work without 
       interruption or delay, provided that [Mukilteo Hotel] pays all 
       undisputed amounts due Contractor.  Contractor agrees to resolve 
       any disputes arising from the Agreement by binding arbitration to 
       be held in King County, Washington, in accordance with the rules 
       of the American Arbitration Association then in effect. 

Wright is the contractor.  This term establishes Wright's assent to arbitration, but 

it does not contain a reciprocal provision reflecting the same agreement by 

Mukilteo Hotel.  Wright nevertheless argues that Mukilteo Hotel is required to 

arbitrate the dispute, and that the trial court erred by finding the term created a 

unilateral or one-sided obligation to arbitrate.

       Wright concedes that unilateral arbitration provisions are enforceable in 

Washington, provided they are not unconscionable.  Satomi, 167 Wn.2d at 815.  

But, Wright contends that the contract cannot be read to create such a one-

sided obligation and option, because the contract fails to do so affirmatively or 

explicitly.  Wright relies on Satomi for this proposition, where the Washington 

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No. 66453-1-I/7

       Supreme Court considered an arbitration clause that similarly created a 

one-sided option.  Id. at 815-16.  The clause stated, in relevant part: 

       7.  Seller's Right to Arbitration.  At the option of the Seller, Seller 
       may require that any claim asserted by Purchaser or by the 
       Association under this Warranty or any other claimed warranty 
       relating to the Unit or Common Elements must be decided by 
       arbitration.

Id. at 790 n.4.  Wright suggests this provision in Satomi created a valid and 

enforceable agreement with a one-sided arbitration option, only by virtue of its 

explicit mention of the "option."  Wright then contrasts this provision with the one 

in the contract at issue here, where the word "option" is not used, and asserts 

that the language in the clause cannot be read to create an unwritten option.  

But, Satomi does not stand for the proposition that an arbitration option or a 

unilateral arbitration clause may only be created by the express inclusion of 

precise words such as "option."  This argument is unsupported by authority, and 

we reject it.  

       Under the objective manifestation test of contract law, courts look to the 

plain terms of the contract, whether they are sufficiently definite, and whether the 

parties objectively manifested mutual assent to those terms.  Keystone, 152 

Wn.2d at 177-78.  The plain language of the arbitration term reflects that Wright 

will be bound by a requirement to arbitrate, without imposing the same obligation 

on Mukilteo Hotel.  Where a party has not agreed to arbitrate, it cannot be forced 

to do so.  Satomi, 167 Wn.2d at 810.  And, it is undisputed that the parties 

mutually assented to the contract's terms and conditions, by signing them.  

Wright concedes it negotiated and signed the contract freely.  Indeed, both 

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No. 66453-1-I/8

parties had the assistance of an attorney during the negotiation and drafting of 

the contract, and Wright's attorney made multiple edits, redlines and markups to 

the contract.  Nevertheless, Wright left the dispute resolution provision 

unchanged.  

       In its reply brief, Wright argues that even if the plain language in the 

contract establishes that Mukilteo Hotel did not agree to arbitrate, such a mutual 

agreement must be implied.  It cites to Reeker v. Remour, where the Supreme 

Court observed: 

       "It very frequently happens that contracts on their face and by their 
       express terms appear to be obligatory on one party only; but in 
       such cases, if it be manifest that it was the intention of the parties, 
       and the consideration upon which one party assumed an express 
       obligation, that there should be a corresponding and correlative 
       obligation on the other party, such corresponding and correlative 
       obligation will be implied."  

40 Wn.2d 519, 523, 244 P.2d 270 (1952) (quoting Nat. Refining Co. v. Cox, 227 

Mo. App. 778, 781, 57 S.W. 2d 778 (1933)).          But Reeker does not change the 

conclusion here, because there is no evidence that the parties intended such 

mutuality.  In fact, as Mukilteo Hotel points out, the evidence on record 

demonstrates Wright knew the difference between a one-sided arbitration 

provision and a mutually binding one, and nevertheless failed to negotiate for 

the latter.  Wright has entered into arbitration agreements with subcontractors 

that were binding on both parties.  For example, one such subcontract provided 

that  "[a]ny controversy, dispute or claim arising out of or related to this 

Agreement or any other agreement concerning the Project shall be settled by 

final and binding arbitration."   Wright's arbitration provision in the contract with 

                                           8 

No. 66453-1-I/9

Mukilteo Hotel could easily have been similarly two-sided, but instead it is 

drafted to apply solely to Wright.

       Wright next relies on Washington's public policy in favor of arbitration, 

whereby courts "indulge every presumption in favor of arbitration."   Rimov v. 

Schultz, 162 Wn. App. 274, 285, 253 P.3d 462, review denied, ___ Wn.2d ___, 

___ P.3d ___ (2011).      It argues that the trial court erred by reading an option 

into the arbitration term, because doing so failed to construe an ambiguity in 

favor of arbitration.  But, no ambiguity existed and the court did not read an 

option into the contract.   Again, "'arbitration is a matter of contract and a party 

cannot be required to submit to arbitration any dispute which he [or she] has not 

agreed so to submit.'"  Woodall, 155 Wn. App. at 925 (alteration in original) 

(quoting Satomi, 167 Wn.2d at 810).  Where the contract does not contain an 

agreement by Mukilteo Hotel to arbitrate, Wright's public policy argument is 

inapplicable.  We hold that Mukilteo Hotel did not agree to submit to arbitration

and affirm.

   II. Attorney Fees

       Mukilteo Hotel seeks an award of reasonable attorney fees on appeal 

under the contract and RAP 18.1.  The contract provides:

       [I]n the event an action is instituted to enforce any of the terms of 
       this Agreement, the prevailing party shall be entitled to recover 
       from the other party such sum as the court or arbitrator may 
       adjudge reasonable as attorneys' fees in arbitration, at trial, and on 
       appeal of such action, in addition to all other sums provided by law.

We hold that Mukilteo Hotel is the prevailing party on appeal, entitled to its 

reasonable attorney fees.

                                           9 

No. 66453-1-I/10

       Wright argues that even if it loses this appeal, Mukilteo Hotel should not 

be deemed the prevailing party under RCW 4.84.330, because the two parties 

remain involved in an ongoing construction lien dispute.  Under that statute, the 

prevailing party is "the party in whose favor final judgment is rendered."         RCW 

4.84.330.  Wright suggests that Mukilteo Hotel would not have a final judgment 

in its favor until that separate dispute is resolved.  We reject that argument.  The 

ongoing lien dispute is beyond the scope of this appeal and has no bearing on 

an award of fees here, where such an award is limited to the costs and fees 

associated with the matter of arbitrability.  Mukilteo Hotel is the prevailing party 

on this appeal, regardless of any other ongoing litigation between the parties on 

other matters, and is entitled to its reasonable fees.

       We affirm.

       WE CONCUR:

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No. 66453-1-I/11

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