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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

TIM McCLINCY, an individual, and              )         No. 66375-5-I
McCLINCY BROTHERS FLOOR                       )
COVERING, INC., a Washington                  )         DIVISION ONE
corporation, dba McCLINCY'S HOME              )
DECORATING,                                   )
                                              )
                      Respondents,            )
                                              )
              v.                              )
                                              )
MILLER ROOFING ENTERPRISES,                   )         UNPUBLISHED
INC.,                                         )
                                              )         FILED: May 7, 2012
                      Appellant.              )
                                              )
                                              )

       Cox, J.  --  Miller Roofing Enterprises, Inc. (Miller Roofing) appeals the 

decisions of the trial court following a bench trial.  The trial court concluded that 

Miller Roofing breached one written and two oral contracts with Tim McClincy 

and McClincy Brothers Floor Covering, Inc. (McClincy Brothers). Based on 

these conclusions, the court entered judgment for substantial damages against 

Miller Roofing.  

       We hold that there is insufficient evidence to support the finding that 

Miller Roofing warranted the manufacture of either the torch down roof for 12 

years or the metal roofs for 50 years. Accordingly, we reverse the judgment to 

the extent of the breach of the written contract claim.   

No. 66375-5-I/2

       We also hold that, on this record, it is unclear whether the oral contract 

claims are barred by the statute of limitations.   It is unclear whether Miller 

Roofing waived the affirmative defense of untimely service of process.  And it is 

also unclear when plaintiffs had notice of the defects underlying their claim for 

breach of the two oral contracts. Thus, liability is unclear.  

       We also note that the damages on which the breach of written contract 

claim is based are not segregated from the damages awarded for the breach of 

the oral contracts claims.  Accordingly, on this record, any judgment for damages 

on the oral contract claims cannot stand.

       For these reasons, we also reverse the judgment on the two breach of 

oral contract claims and remand for further proceedings.

       Miller Roofing entered into a written contract with McClincy on June 16, 

1997, for the construction and replacement of three roofs at the McClincy 

Brothers' commercial location.  The building is owned by McClincy.  

       As part of the agreement, Miller Roofing agreed to re-roof all of the low

pitched and flat roofs with rubber torch down roofing materials and all of the 

pitched roofs with Champion Snap-Lock metal roofing.  The following provision 

of the agreement, which only Miller Roofing signed, follows 10 numbered 

contractual terms and states: "Roof guaranteed 5 years labor and 12 year 
manufacture on Torch down and 50 year manufacture waranty [sic] on metal."1  

Miller Roofing completed the roofing project in May 1998.

       1 Clerk's Papers at 50.

                                               2 

No. 66375-5-I/3

       In January 2006, Miller Roofing orally agreed to fix some water leaks in 

the roofing.  Miller Roofing returned on June 3, 2006, and performed additional 

repairs on the lower torch down roof.

       During November and December 2007, severe weather caused 

substantial water intrusion and extensive damage to the building.  In January 

2008, a third party informed McClincy and McClincy Brothers that a cause of the 

damage was defective construction of the torch down roof by Miller Roofing.  

       On February 5, 2009, McClincy and McClincy Brothers commenced this 

action against Miller Roofing for breach of contract, negligence, violations of the 

Washington Product Liability Act (WPLA), fraudulent concealment, and breach 

of express and implied warranties. Miller Roofing never asserted that McClincy 

Brothers was not a proper party to this action and had no claim.  

       Miller Roofing moved for summary judgment.  It argued that the breach of 

contract claim based on the June 1997 written contract was barred by the six-

year statute of repose.  It also claimed that the two 2006 oral agreements for 

repair work were barred by the three-year statute of limitations. The trial court 

denied the motion.

       The case proceeded to a bench trial.  After the close of the case's liability 

phase by McClincy and McClincy Brothers, Miller Roofing moved for dismissal of 

the claim related to the written contract.  The trial court granted the motion, 

deciding that the "roof(s) installed by Miller Roofing Enterprises, Inc. were 

completed in 1998 and under the statute of repose (six years) any breach of 

                                               3 

No. 66375-5-I/4

contract claim expired in 2004."2 But the court further ruled on the written 

contract claim as follows:

              Under [sic] Plaintiff's theory that the Defendant stepped into 
       the role of manufacturer for the Torch down roof may be 
       reconsidered by this court upon a showing within the record 
       presented to the court in trial; otherwise, the claim[] for breach of 
       [the written] contract [is] hereby DISMISSED.[3]

       At the trial's conclusion, the court entered findings of fact and conclusions 

of law.  The court concluded that Miller Roofing warranted the manufacture of 

the torch down roof for a period of twelve years.  It also concluded that Miller 

Roofing breached the written contract with McClincy and the two subsequent 

2006 oral agreements. The court entered judgments for damages for all of these 

alleged breaches exceeding $1,387,000.

       Miller Roofing appeals.

                        BREACH OF CONTRACT CLAIMS

                                   Written Contract

       Miller Roofing argues that the trial court erred in finding at the conclusion 

of trial that it warranted the torch down roof as a manufacturer under the parties 

June 1997 written contract.  We agree.

       A contract is actionable when it imposes a duty, that duty is breached, 
and the breach proximately causes damage to the one owed the duty.4 Failure 

       2 Id. at 359.

       3 Id.

       4 NW Indep. Forest Mfrs. v. Dep't of Labor & Indus., 78 Wn. App. 707, 712, 
899 P.2d 6 (1995).

                                               4 

No. 66375-5-I/5

to 

                                               5 

No. 66375-5-I/6

perform a contractual duty constitutes a breach.5  

       The touchstone of contract interpretation is the parties' intent.6 Under the 

objective manifestation theory of contract interpretation, a court must attempt to 

ascertain the intent of the parties by focusing on the objective manifestations of 
the agreement, rather than the unexpressed subjective intent of the parties.7  

Intent may be imputed based on the ordinary meaning of the words within the 
contract.8 Words in a contract are given their ordinary, usual, and popular 

meaning unless the entirety of the agreement clearly demonstrates a contrary 
intent.9  Extrinsic evidence may also be used to determine the parties' intent.10  

       We review de novo the trial court's interpretation of a contract.11 A trial 

court's findings of fact are reviewed for substantial evidence.12  Substantial 

evidence is evidence sufficient to persuade a fair-minded, rational person of the 

       5 Restatement (Second) of Contracts § 235(2) (1981).

       6 Tanner Elec. Co-op. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 
674, 911 P.2d 1301 (1996).

       7 Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 
262 (2005).

       8 Id.

       9 Id. at 504 (citing Universal/Land Constr. Co. v. City of Spokane, 49 Wn. 
App. 634, 637, 745 P.2d 53 (1987)).

       10 Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990).

       11 Knipschield v. C-J Recreation, Inc., 74 Wn. App. 212, 215, 872 P.2d 1102 
(1994).

       12 Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 
(2003).

                                               6 

No. 66375-5-I/7

finding's truth.13 Unchallenged findings of fact are verities on appeal.14 This 

court reviews de novo the trial court's conclusions of law to determine if they are 
supported by the findings of fact.15

       Here, the June 1997 written contract required, among other things, the 
installation of torch down roofing.16 The contract stated "Roof guaranteed 5 

years labor and 12 year manufacture on Torch down and 50 year manufacture
waranty [sic] on metal."17  

       The parties do not appear to dispute that Miller Roofing guaranteed its

labor on the roof for a period of 5 years.  But a plain reading of the above

language does not support the theory that Miller Roofing was to provide a 

warranty for manufacture of either the torch down roofing for 12 years or the 

metal roofing for 50 years.  

       We reach this conclusion by considering the definition of the word 

"manufacture."  Under the objective theory of contract interpretation, we first

ascertain the parties' intent based on the ordinary meaning of the word 
"manufacture."18 According to the American Heritage Dictionary, it means:

       13 Id.

       14 In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).

       15 Bingham v. Lechner, 111 Wn. App. 118, 127, 45 P.3d 562 (2002) (citing 
City of Seattle v. Megrey, 93 Wn. App. 391, 393, 968 P.2d 900 (1998)).

       16 Ex. 1.

       17 Id. (emphasis added).

       18 See Hearst Commc'ns, 154 Wn.2d at 503.

                                               7 

No. 66375-5-I/8

              1.a. To make or process (a raw material) into a finished 
       product, especially by means of a large-scale industrial operation.  
       b. To make or process (a product), especially with the use of 
       industrial machines.  2. To create, produce, or turn out in a 
       mechanical manner . . . .  3. To concoct or invent; fabricate . . . .  
       To make or process goods, especially in large quantities and by 
       means of industrial machines.[19]

       Based on this definition of "manufacture," Miller Roofing did not 

manufacture either the torch down roof or the metal roof.  Rather, it only

provided labor to install the roofs.  Thus, it did not warrant the materials that 

were manufactured for either roof, the theory that served as the basis for the 

breach of the written contract claim.

       Our view of the ordinary meaning of "manufacture" in this agreement is 

consistent with common law distinctions between manufacturers and those who 

construct improvements on real estate.  In 1519-1525 Lakeview Boulevard 
Condominium Ass'n v. Apartment Sales Corp.,20 the supreme court considered 

this distinction in the context of former RCW 4.16.310, the statute of repose.  

The court summarized the differences as follows:

              This court has previously recognized that rational 
       distinctions exist between manufacturers and people who construct 
       improvements upon real estate. Recognized rational distinctions 
       between these two classes include the following:

              (1) Manufacturers have liability under products liability law, 
       an independent area of law separate from basic negligence or 
       breach of contract, and this area of law has its own statutes of 
       limitation, which are keyed to the useful life of the product. 

              (2) Manufacturers produce standardized goods from 

       19 The American Heritage Dictionary 1096 (3d ed. 1992).

       20 144 Wn.2d 570, 29 P.3d 1249 (2001).

                                               8 

No. 66375-5-I/9

       pretested designs and in large quantities whereas contractors 
       make a unique product designed to deal with the distinct needs of 
       a particular piece of real estate. 

              (3) Manufacturers produce their goods in a controlled 
       environment whereas contractors build improvements upon real 
       estate in an ever-changing environment. 

              (4) Manufacturers do not contribute to the structural aspects 
       of real estate improvements; nor do they engage in any of the 
       construction activities enumerated in RCW 4.16.310.[21]

       For these same reasons, the written contract does not impose any duty on 

Miller Roofing to warrant the manufacture of the torch down or metal roofs.

       The trial court's ruling dismissing the breach of contract claim, subject to a 

further showing, is consistent with our view of the case.  The court stated:

              Under [sic] Plaintiff's theory that the Defendant stepped into 
       the role of manufacturer for the Torch down roof may be 
       reconsidered by this court upon a showing within the record 
       presented to the court in trial; otherwise, the claim[] for breach of 
       [the written] contract [is] hereby DISMISSED.[22]

Thus, the court dismissed the breach of written contract claim, subject to 

reconsideration upon a showing that Miller Roofing "stepped into the role of 

manufacturer for the Torch down roof."  There is no such showing in this record.

       First, there is no evidence in this record of any contemporaneous 

conversations between the parties when the written contract was executed 

showing that Miller Roofing stepped into the role of manufacturer of either roof.  

       On direct examination regarding the formation of the contract, McClincy 

       21 Id. at 578-79 (internal citations omitted).

       22 Clerk's Papers at 359. 

                                               9 

No. 66375-5-I/10

testified as follows:

              Q       Can you recall sitting here today any specific 
       discussions about any of the ten items that appear in the proposal?  
       Think [for] a moment if [you] would.  Just read through it again.

              A       I believe we discussed sky lights and that I wanted 
       metal on this portion of the building in that section.
              . . . .

              Q       All right.  What else?

              A       And then the torch down roofing and all of the coping 
       on the parapets.

              Q       Anything else you can recall?

              A       No.

              Q       Now, there's a statement made at the bottom of the 
       proposal, 108th -- part of paragraph 10 or underneath paragraph 
       10.  It's [sic] says, "roof guaranteed five years labor and 12 year 
       manufacture on torch down and 50 year manufacture warranty on 
       metal." Do you see that?

              A       Yes.

              Q       Do you recall there being any discussion between 
       you and Mr. Miller at or a time he presented you with this contract 
       proposal about warranties?

              A       Other than what's on my contract?

              Q       Were you shown any other materials by -- material is 
       probably a poor choice of words.  Any other document by Mr. Miller 
       referencing Champion metal roofing and whatever warranty they 
       may have given you?

              A       No.

              Q       Were you shown anything by Mr. Miller having to do 
       with warranties that may have been in existence with respect to the 
       composition material that was to be used as part of the torch 
       down?

                                              10 

No. 66375-5-I/11

              A       No.

              Q       So would it be fair to say that in hiring Mr. Miller and 
       his company to do this project, you were relying solely on the 
       warranties that appear -- that were given in the proposal?
              A       Yes.[23]

Nothing in this testimony indicates an intention by either party that Miller Roofing 

would be held liable as the manufacturer of the torch down roof. 

        On cross examination, McClincy testified as follows:

              Q.      Do you recall any discussions with Rick Miller ater 
       [sic] you received his proposal about his proposal?

              A.      I don't recollect right now.

              Q.      Do you recall getting a contract with him after 
       receiving this proposal, or did you just hand this off to your 
       [contractor]?

              A.      Me and Rick Miller had conversations at different time 
       intervals.

              Q.      But do you recall any of the specifics of them?
              A.      Not right now.[24]

       This testimony falls short of showing that Miller Roofing "stepped into the 

role of manufacturer for the Torch down roof."

       Second, there is nothing in the record that indicates that the trial court 

considered whether McClincy and McClincy Brothers proved that Miller Roofing 

"manufactured" the torch down roof after the court dismissed the breach of 

       23 Report of Proceedings (Oct. 12, 2010) at 27-29.

       24 Report of Proceedings (Oct. 13, 2010) at 82.

                                              11 

No. 66375-5-I/12

contract claim.  We also note there was evidence that the actual manufacturer of 

the metal roofing material, not Miller Roofing, provided warranty coverage after 

the making of the written contract. This evidence further undercuts the claim 

that Miller Roofing stepped into the role of manufacturer of either roof.

       Notwithstanding the absence of any evidence to show that Miller Roofing 

"stepped into the role of manufacturer for the Torch down roof," the trial court

entered the following mixed findings and conclusions:

              2.      There was a valid binding contract between the 
       parties entered into on June 16, 1997.  Miller Roofing 
       manufactured the torch down roof and warranted the torch 
       down roof against manufacturing defects for a period of 12 
       years and the metal roofs, together with the metal coping over the 
       parapet walls, for 50 years.

              3.      Miller Roofing breached the original contract with 
       McClincy Brothers entered into June 16, 1997 and the subsequent 
       oral agreements entered into in January and June, 2006.[25]

There simply is no support for either of the findings or the conclusions in the 

above portions of the court's decision.  Accordingly, we reverse the judgment

based on these unsupported findings and conclusions.

       McClincy and McClincy Brothers argue that there is no evidence that 

Miller Roofing intended that he look elsewhere for warranty protection.  This 

argument falls well short of his duty to provide affirmative evidence that the 

parties intended Miller Roofing to step into the shoes of the manufacturer.  

Therefore, it is not persuasive.

       McClincy and McClincy Brothers also argue that Rick Miller's testimony 

       25 Clerk's Papers at 411 (emphasis added).

                                              12 

No. 66375-5-I/13

regarding the process used to install the torch down roof is evidence that Miller 

Roofing was solely responsible for manufacturing the roof.  This argument is 

unpersuasive.  Nothing in Miller's testimony evidences that, at the time of 

contracting in 1997, Miller Roofing "stepped into the role of manufacturer for the 

Torch down roof."  His description of the labor performed to install the roof is not 

such evidence.

       McClincy and McClincy Brothers attempt to distinguish this case from the 

definition of a manufacturer in the WPLA, the Uniform Commercial Code, and 
cases applying the statute of repose.26 Because liability in this case was based 

on breach of contract, nothing else, none of these definitions is relevant.  The 

contract should be interpreted based on the ordinary definition of manufacture 
as that is the parties' objective manifestation of mutual intent.27  

       Finally, none of the findings state that there was a defect in any of the 

roofing materials.  Thus, even if Miller Roofing was a manufacturer, there is no 

basis in this record for imposing liability on it for a breach of any manufacturer 

warranty.  This lack of evidence further undermines the breach of contract claim.  

       As the trial court properly determined, the six-year statute of repose bars 

any other claims that could arise from this written contract.  Thus, the question of 

other claims on the written contract need not be revisited on remand.

       26 Respondents' Answering Brief at 23-25.  Washington Pattern Jury 
Instruction 110.04 defines "Manufacturer" as "a product seller who designs, 
produces, makes, fabricates, constructs, or remanufactures the relevant product or 
component part of a product before its sale to a user or consumer."

       27 Hearst Commc'ns, 154 Wn.2d at 503.

                                              13 

No. 66375-5-I/14

       For these reasons, we reverse the judgment based on the alleged breach 

of the terms of the June 1997 written agreement of the parties.

                                    Oral Contracts

       Miller Roofing also argues that the trial court erred in concluding that it

breached the two 2006 oral contracts for repair work because those claims were 

time barred.  We are unable to resolve this claim on this record.

       The statute of limitations requires that actions for the breach of an oral 
contract be commenced within three years.28 A civil action is commenced by the 

service of a copy of a summons together with a copy of a complaint.29 But an 

action is not commenced for the purpose of tolling the statute of limitations 
except as provided for in RCW 4.16.170.30 This statute states, in relevant part:

              For the purpose of tolling any statute of limitations an action 
       shall be deemed commenced when the complaint is filed or 
       summons is served whichever occurs first.  If service has not 
       been had on the defendant prior to the filing of the complaint, 
       the plaintiff shall cause one or more of the defendants to be 
       served personally, or commence service by publication within 
       ninety days from the date of filing the complaint. . . .[31]

       28 RCW 4.16.080(3).

       29 CR 3(a). 

       30 Id.

       31 RCW 4.16.170 (emphasis added).

                                              14 

No. 66375-5-I/15

Untimely service of process is necessarily insufficient to commence a lawsuit.32

       The defense of insufficient service of process can be waived if its 
assertion is inconsistent with the defendant's prior behavior.33  "The doctrine of 

waiver in this context is 'designed to prevent a defendant from ambushing a 

plaintiff during litigation either through delay in asserting a defense or 
misdirecting the plaintiff away from a defense for tactical advantage.'"34

        Here, Miller Roofing performed repair work based on oral agreements 

with McClincy in January 2006 and June 2006, respectively.  McClincy and 

McClincy Brothers filed a summons and complaint alleging breach of these oral 

contracts on February 5, 2009.  Under RCW 4.16.170, personal service on Miller 

Roofing or commencement of service by publication was required within 90 days 

of this date.  McClincy and McClincy Brothers did not attempt service by 

publication and were not successful in personal service of Miller Roofing within 

that time period.  On June 25, 2009, more than 90 days after the complaint was 

filed, Miller Roofing's attorney accepted service, but specifically reserved the 

affirmative defense of failure to timely commence the lawsuit.  

       Miller Roofing argues that the statute of limitations expired in May 2009, 

90 days after this action was filed.  Thus, it claims the June 2009 service of 

process was untimely.  But Miller Roofing filed interrogatories and requests for 

       32 Adkinson v. Digby, Inc., 99 Wn.2d 206, 209, 660 P.2d 756 (1983).

       33 Harvey v. Obermeit, 163 Wn. App. 311, 323, 261 P.3d 671 (2011) (quoting 
King v. Snohomish County, 146 Wn.2d 420, 424, 47 P.3d 563 (2002)).
       34 Id. (citing King, 146 Wn.2d at 424).

                                              15 

No. 66375-5-I/16

production on March 4, 2009.  The interrogatories include requests for 

substantive information about the case and are not limited to the defense of 

insufficiency of service.  Therefore, Miller Roofing may have waived its 

insufficiency of service of process defense because of the scope of discovery in 

which it engaged. 

       It is unclear whether the trial court ever expressly ruled on this issue with 

the benefit of a fully developed record.  On this record, we cannot say whether 

the affirmative defense was waived.  This is an issue that the trial court should 

consider on remand.

       Another issue that affects the statute of limitations is when the causes of 

action for the alleged breaches of the oral agreements accrued.  Although 

accrual of a contract action usually occurs at the time of breach, the supreme 

court has held that the discovery rule applies to construction contract actions 
where latent defects are alleged.35  Specifically, the court stated:

       [t]he discovery rule requires that "when a plaintiff is placed on 
       notice by some appreciable harm occasioned by another's 
       wrongful conduct, the plaintiff must make further diligent inquiry to 
       ascertain the scope of the actual harm. The plaintiff is charged with 
       what a reasonable inquiry would have discovered." A person who 
       has notice of facts that are sufficient to put him or her upon inquiry 
       notice is deemed to have notice of all facts that reasonable inquiry 
       would disclose.[36]

       Here, the trial court found that the defects in the design and construction

       35 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566, 580, 146 P.3d 
423 (2006).

       36 Id. at 581 (quoting Green v. A.P.C., 136 Wn.2d 87, 96, 960 P.2d 912
(1998) (internal citations omitted)). 

                                              16 

No. 66375-5-I/17

of the roof were latent and not discoverable until late 2009:

              2.18  Plaintiffs could not reasonably have known of the 
       precise nature and extent of the defective design and construction 
       of the scuppers attached to the upper roof, and the lower torch 
       down roof, the defects of the metal roof, the metal coping along the 
       top of the parapets of the torch down roof and the defects in the 
       surface of the lower torch down roof until late December 2009 or 
       early January 2010 when presented with a report from a roofing 
       expert specifically identifying those design deficiencies and defects 
       in workmanship as a proximate cause of water intrusion.[37]

Although Miller Roofing does not assign error to this finding, it is clear from the 
briefing that it challenges whether there is substantial evidence to support it.38  

Thus, we consider whether this finding is supported by substantial evidence.

       We conclude that it is not supported by substantial evidence.  Gerald 

Burke did provide a report to McClincy dated January 18, 2010, which identifies 
many problems with the roof.39  But in light of the trial court's other findings and 

the evidence presented at trial, this is not substantial evidence supporting the 

trial court's finding.  

       First, the trial court entered inconsistent findings of fact, none of which 

are challenged, that McClincy was aware of water leaks before 2010.  Second, 

McClincy and McClincy Brothers' own brief essentially admits that McClincy 

       37 Clerk's Papers at 408.

       38 See State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995) (failure to 
assign error in an opening brief does not preclude review of an issue where "the 
nature of the appeal is clear and the relevant issues are argued in the body of the 
brief and citations are supplied so that the court is not greatly inconvenienced and 
the respondent is not prejudiced . . . .").

       39 Ex. 4.

                                              17 

No. 66375-5-I/18

discovered defects in the roof by November 2007.40  Third, the fact that the

complaint was filed in February 2009 belies the trial court's finding that McClincy 

was not aware of any defects until December 2009.  For these reasons, Finding 

of Fact 2.18 is not supported by substantial evidence.

       In order to determine when McClincy and McClincy Brothers were put on 

notice of defects related to the 2006 repairs, it is necessary to separately 

examine the unchallenged findings, which are verities on appeal, related to each 

of those repairs.

       First, the trial court found that Miller Roofing performed repairs to the 

torch down roof on January 23, 2006, after water began leaking into the 

showroom.  The findings go on to state that "[w]ater continued to leak into the 

premises." It is unclear how soon after the repair this occurred.  But on April 3, 

2006, McClincy Brothers received a report from American Leak Detection

recommending certain repairs be performed to the torch down roof.  This could 

mean that McClincy and McClincy Brothers were first on notice of defects in 

Miller Roofing's January 2006 repair work in April 2006.  If so, the February 

2009 filing of this action could be timely.  We leave to the trial court to resolve 

this issue on remand.  

       Next, the trial court found that Miller Roofing performed additional repairs 

on the torch down roof on June 3, 2006.  More than a year later, in November 

and December of 2007, the building experienced "substantial water intrusion into 

       40 Respondents' Answering Brief at 29.

                                              18 

No. 66375-5-I/19

the interior of the showroom . . . ." Nothing in the findings suggests that

McClincy or McClincy Brothers had notice that the repairs performed in June of 

2006 were immediately identifiable as inadequate.  Therefore, the repair defects 

could have been latent until their discovery in November 2007.  As such, 

McClincy and McClincy Brothers could have timely commenced its action on this 

claim by June 25, 2009, when service was accepted.  The trial court should also 

consider this matter on remand.

       Miller Roofing argues that the defects described above were not latent 

because McClincy is a "water restoration specialist and sophisticated owner of a 

commercial building [who] could easily have discovered the alleged [defects]." It 

cites nothing in the record supporting this characterization of McClincy's 
knowledge.  Therefore, this argument is not persuasive.41

       Miller Roofing also relies on deposition testimony from McClincy that the 

defects in the roof were "observable to the naked eye." This is a 

mischaracterization of McClincy's testimony:

              Q.  But as far as [American Leak Detection's] concerns with 
       the design of the scupper, that's something that you can visually 
       see the design of the scupper, correct?

              A.  Oh, yeah, yeah.

              Q.  Okay.  That was something that McClincy, as a general 
       contractor, saw at the time it was installed, correct?

              A.  Well, I think we all saw, you know -- You know, I certainly 
       didn't pay attention to it.

       41 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 
549 (1992) (the appellate court need not consider an issue absent argument and 
citation to legal authority).

                                              19 

No. 66375-5-I/20

              Q.  Right.

              A.  You know, it's not something that I want to sit 
       there and look at the gutter or scupper or something.

              Q.  But it's observable to the naked eye, the design, the 
       way it's installed?

              A.  Yeah.

              Q.  Okay.

              A.  Unless you're in tune to that as a specialist.

              Q.  I understand.

              A.  And you're probably not going to -- 

              Q.  Probably not going to what?

              A.  Probably not going to say, oh, well, that's installed 
       improperly, you know, because it looked nice.  [Y]ou know.  It just 
       doesn't function properly.[42]

In making these statements, McClincy only conceded that the repairs looked 

"nice" to someone who was not an expert.  Whether the defects were latent is 

simply not addressed.  Therefore, Miller Roofing's reliance on this deposition 

testimony is not persuasive.

       Finally, Miller Roofing argues that a January 2010 expert report stating 

that the defects were "very visible" also shows that the defects were not latent.  

But it is immaterial how the defects appeared in January 2010.  The issue is 

whether the defects were latent in 2006 when the original oral contracts were 

entered into.  Therefore, this report is not persuasive.

       42 Clerk's Papers at 63 (emphasis added).

                                              20 

No. 66375-5-I/21

       In sum, this record does not resolve the question of liability for the alleged 

breaches of the 2006 oral agreements.  These are matters that the trial court 

should address in the first instance.  Accordingly, we reverse the judgment to the 

extent of these claims.

       A further reason for reversal of the judgment is that damages for the 

various breach of contract claims are not segregated.  As we have held, there is 

no valid cause of action for damages for breach of the June 1997 written 

contract.  It is unclear whether and to what extent there are damages for breach 

of either 2006 oral contracts.  This problem should also be addressed by the trial 

court on remand.

                           FAILURE TO STATE A CLAIM

       For the first time on appeal, Miller Roofing claims that McClincy Brothers 

failed to state a claim upon which relief can be granted.  Miller Roofing argues

that the amended complaint does not allege that a contract existed with 

McClincy Brothers, but only with McClincy, and that, as a result, it should not be 

liable for damages incurred by McClincy Brothers.  Because this argument was 

not preserved below and it does not fall within the narrow exceptions of Rule of 

Appellate Procedure (RAP) 2.5(a), we do not address it.

       RAP 2.5(a)(2) allows a party to raise, for the first time on appeal, the 

"failure to establish facts upon which relief can be granted."  But RAP 2.5(a)(2)

does not provide authority for a party to argue an absence of supporting facts 
when it took a contrary factual position below.43

       43 Hemenway v. Miller, 55 Wn. App. 86, 97, 776 P.2d 710 (1989), rev'd on 

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No. 66375-5-I/22

       Here, in its motion for summary judgment below, Miller Roofing stated the 

following in its statement of facts:

              This lawsuit arises from the installation of three roofs 
       completed over twelve years ago.  In 1996, Plaintiff McClincy 
       Brothers Floor Covering, Inc. (hereinafter "McClincy"), acting 
       as its own general contractor undertook a substantial renovation of 
       its commercial building. . . .  McClincy hired Miller to install torch 
       down flat roofs over McClincy's showroom ("lower torch down roof") 
       and the apartments ("upper torch down roof"), and a metal steep 
       slope roof over a small section of the building ("metal roof").[44]

In a heading describing the subsequent oral contracts, Miller Roofing states, "[i]n 

2006, the parties entered into an oral agreement whereby Miller made repairs 
to the lower torch down roof."45  Miller Roofing stated the same in its trial brief.  

       In view of these concessions that the agreements at issue were between 

Miller Roofing and McClincy Brothers, Miller Roofing cannot now argue that 

McClincy was the only party to these agreements.  Therefore, we do not reach 

the substance of this argument.

       We reverse and remand for further proceedings.

other grounds, 116 Wn.2d 725 (1991).

       44 Clerk's Papers at 26-27 (emphasis added).

       45 Id. at 27 (emphasis added).

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No. 66375-5-I/23

WE CONCUR:

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