Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

PAUL LIETZ,                                                      No.  40987-9-II

                             Appellant,

       v.

Hansen Law Offices, P.S.C., Amy Hansen                      PUBLISHED OPINION
(Personally and in her official capacity),

                             Respondents.

       Hunt, P.J.  --  Paul Lietz appeals the trial court's (1) refusal to enter a CR 68 offer of 

judgment, which Hansen Law Offices, PSC, and Amy Hansen (collectively, Hansen) extended 

before trial and Lietz claims he unconditionally accepted; and (2) refusal to award attorney fees 

under RCW 49.48.0301.  Lietz argues that the trial court erred in (1) finding no "meeting of the 

minds"2 about whether the offer of judgment included attorney fees; (2) ruling the offer of 

judgment agreement invalid, despite Hansen's offer and Lietz's unconditional acceptance having 

satisfied the doctrine of mutual assent (formerly known as "meeting of the minds")3; and (3) 

1 RCW 49.48.030 was amended in 2010 to add gender neutral language; this change does not 
affect our analysis here.  We will be referring to the current version of the statute throughout the 
opinion.

2 Verbatim Report of Proceedings (May 14, 2010) at 15.

3 Swanson v. Holmquist, 13 Wn. App. 939, 942, 539 P.2d 104 (1975) ("Mutual assent is the  

No.  40987-9-II

denying him reasonable attorney fees, to which RCW 49.48.030 and Washington case law entitled 

him.  Bypassing Lietz's mutual assent argument, Hansen responds that McGuire v. Bates, 169 

Wn.2d 185, 234 P.3d 205 (2010), fully resolves the issue in her favor.  We reverse and remand to 

the trial court to enter the CR 68 offer of judgment agreement and to award reasonable attorney 

fees to Lietz.  We also award Lietz attorney fees on appeal.

                                            FACTS

       From approximately January 5, 2006, to June 13, 2007, Paul Lietz worked as a paralegal 

and investigator for Hansen.  Lietz planned to become an attorney through Washington's Rule 6 

Law Clerk Program; and Hansen had agreed to serve as his Rule 6 sponsor while he worked for 

her law firm.  Hansen agreed to pay Lietz $15.00 per hour to work as an investigator on her 

personal injury cases.  The parties dispute whether Hansen also agreed to pay Lietz $250 a week 

to work as a paralegal on Thursdays and Fridays.  On June 13, 2007, Hansen terminated Lietz's 

working relationship with her firm.4 Eventually, she also ended her Rule 6 sponsorship of him.

       On June 18, 2008, Lietz sued Hansen for breach of employment contract and failure to 

pay $14,483.47 in wages for work he had performed for her as a paralegal and as an investigator.  

He sought economic damages, double damages, costs, and reasonable attorney fees under RCW 

49.48.030.5 Hansen filed a counterclaim, apparently asserting that Lietz's lawsuit was frivolous.

modern expression for the concept of 'meeting of the minds.'").

4 The parties dispute whether Lietz was an "employee" or an "independent contractor" of Hansen.  
See Reply Br. of Resp't at 1, 8; Clerk's Papers (CP) at 18.  They also disagree about the rate 
and/or basis for his wages.  This distinction, however, is irrelevant to the issues in this appeal.

5 Lietz originally requested attorney fees under RCW 49.52.070 as well; but he appears to have 
dropped this claim.  On appeal, he seeks attorney fees under only RCW 49.48.030.

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No.  40987-9-II

6 Trial was set for May 3, 2010.

                                      I.  Settlement Offers

       In early October 2009, Hansen submitted a CR 68 offer of judgment to Lietz for $2,500,7

which Lietz rejected.  In mid-October, the parties held a settlement conference with a Pierce 

County Superior Court judge.  Hansen orally offered to settle for $7,500, which offer Lietz 

rejected.8

       On April 20, 2010, Hansen served Lietz with a second document dated April 19 and 

entitled  "Offer of Judgment," which she purportedly made "pursuant to RCW 4.84.185 and 

4.84.280 and CR 68."   Clerk's Papers (CP) at 43.  In the bottom left-hand side of the footer of 

the document, Hansen also referred to the document as an "Offer of Settlement." CP at 43.  This 

second "Offer of Judgment" stated:

              Defendants wish to bring this matter to a quick and amicable disposition; 
       and, therefore, offers to settle the claim against defendants at the present time in 
       the amount of $7,500.00.

6 The precise nature of Hansen's counterclaim is unclear from the record before us on appeal.  At 
various times in her trial memoranda and in her Reply Brief of Respondent, Hansen characterized 
her counterclaim as for "overpayment" or  "fraudulent billing" practices, which terms do not 
appear in the counterclaim.  See e.g., Reply Br. of Resp't at 6; CP at 77.  In his answer to 
Hansen's counterclaim, Lietz asserted that the counterclaim failed to state a claim upon which 
relief may be granted; but the record before us does not indicate whether Lietz ever moved to 
dismiss the counterclaim or if the trial court ruled on such motion.

7 Neither party submitted this offer of judgment as part of the trial record.  Therefore, it is not in 
the record on appeal.

8 According to Lietz, he rejected the offer because it was less than a quarter of the attorney fees 
and costs that he had incurred in pursuing his lawsuit.

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No.  40987-9-II

CP at 43 (emphasis added).  This offer did not mention attorney fees or Hansen's counterclaim.  

On April 28, Lietz accepted this offer in writing as follows: 

       [Lietz] accepts Defendants' offer of judgment dated April 19, 2010 in the amount 
       of seven thousand five hundred dollars ($7,500).

CP at 45.  Similar to Hansen's offer, Lietz's acceptance did not mention attorney fees or Hansen's 

counterclaim.

       On April 29, Hansen filed a Notice of Settlement, stating, "[A]ll claims against all parties 

in this action have been resolved," and she asked the trial court to remove the case from the trial 

calendar.  CP at 26 (emphasis added).  On April 30, Hansen mailed Lietz a check for $7,500 and 

an Agreed Order of Dismissal.  Lietz returned the check and the Agreed Order of Dismissal to 

Hansen the same day and advised her that he would move for entry of judgment and seek attorney 

fees.  CP at 147.

             II.  Motion for Entry of Judgment under CR 68; Attorney Fee Dispute

       On May 6, Lietz moved for entry of judgment under CR 68 and for attorney fees under 

RCW 49.48.030.  He proposed entry of a judgment for $44,045, which comprised the $7,500 

agreed upon in the April 19, 2010 offer of judgment and $36,545 in attorney fees under RCW 

49.48.030.  Hansen opposed the addition of attorney fees, contending that she had offered the 

$7,500 to settle all of Lietz's claims, including any attorney fees.

       Lietz responded that Seaborn Pile Driving Co. v. Glew, 132 Wn. App. 261, 267, 131 P.3d 

910 (2006), review denied, 158 Wn.2d 1027 (2007), requires the trial court to award attorney 

fees, in addition to the offer of judgment amount, where a CR 68 offer of judgment is silent on 

                                               4 

No.  40987-9-II

attorney fees and the attorney fees are not defined as "costs" under the relevant attorney fee 

statute.  CP at 159.  He argued that (1) the statute awarding attorney fees for recovering unpaid 

wages, RCW 49.48.030, does not define attorney fees as "costs"; and (2) therefore, the trial court 

must award him attorney fees in addition to the $7,500 agreed upon when he accepted Hansen's 

offer of judgment.  CP at 159.

       Hansen argued to the trial court that her offer of judgment was "unambiguous," claiming 

that it clearly expressed her intent to resolve all claims against her because it deviated from the 

standard CR 68 language and used the words "settle" and "settlement."       Verbatim Report of 

Proceedings (VRP) (May 14, 2010) at 8.  When pressed further by the court about why the 

document did not specify that it included attorney fees if her intent was to settle the entire case for 

$7,500, Hansen responded that it was "scrivener's error" and "maybe there's no meeting of the 

minds." VRP (May 14, 2010) at 11.

       Finding that there was no "meeting of the minds" about whether the offer of judgment 

included attorney fees, the trial court refused to enter the April 19, 2010 offer of judgment.9 VRP 

(May 14, 2010) at 15.  The trial court also suggested that Lietz had an obligation to clarify any 

ambiguity with Hansen, or at least to put Hansen on notice that he intended to seek attorney fees, 

before accepting the offer.

9 The trial court orally ruled:
              Well, I guess I'm kind of torn here.  On the one hand, it's very possible 
       Ms. Hansen never intended to offer any more than [$7,500]; on the other hand . . . 
       [Hansen's counsel] says it's under Rule 68 and [is] now trying to avoid 68, and in 
       the [Seaborn v. Glew] case, so . . . I'm not going to enforce the agreement.  There 
       appears to me that there was not a meeting of the minds.
VRP (May 14, 2010) at 15.

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No.  40987-9-II

                  III.  Motions  for Reconsideration and Discretionary Review

       Lietz moved for reconsideration, briefing the issue of mutual assent, and arguing that the 

trial court should construe any ambiguity in the offer of judgment against Hansen because she had 

drafted the document.  Hansen did not specifically allege lack of mutual assent in her response.  

Instead, she argued that her attorney had made a "unilateral mistake" in drafting the April 19, 

2010 offer of judgment and that the trial court should not enforce the CR 68 judgment under the 

"snap up" doctrine.10 CP at 201.  The trial court denied Lietz's motion for reconsideration,11 and 

set a trial date for the underlying wage claim.

       Lietz moved for discretionary review.  Ruling that the trial court had committed probable 

error that substantially alters the status quo, a commissioner of our court granted review.  We set 

the case for oral argument before a panel of judges.

10 Under the so-called "snap up" doctrine, a court may decide not to enforce a contract where a 
party made a unilateral mistake in entering the contract and the other party knew of the other 
party's mistake at the time of acceptance and unfairly exploited the mistaken party's error.  See 
Clover Park Sch. Dist. No. 400 v. Consol. Dairy Products Co., 15 Wn. App. 429, 434, 550 P.2d 
47 (1976).  Such does not appear to have been the case here, however.

11 The trial court reasoned:
       [Lietz's counsel] makes a good point.  [Hansen's counsel] is the one who drafts 
       [the offer of judgment], so if there is ambiguity, I should probably construe it 
       against  [Hansen].  But my understanding is the total claim here was $14,000.  
       They offered to settle 50 percent of that.
              I'm sure Ms. Hansen didn't realize she might be stuck with $35,000 in 
       attorney fees.  Now, maybe her attorney should have known better, but she's the 
       one that might have to pay.  So I'm going to deny the motion to reconsider over 
       the objection of [the] plaintiff.
Transcript of Proceedings (TP) (June 25, 2010) at 37-38.

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No.  40987-9-II

                                          ANALYSIS

                         I.  Refusal To Enter CR 68 Offer of Judgment

       Lietz argues that the trial court erred by refusing to enter the parties' April 19, 2010 offer 

of judgment based on lack of mutual assent, because the trial court erroneously evaluated 

Hanson's unexpressed, subjective intentions rather than her objective manifestations as case law 

requires.  We agree.

                                    A.  Standard of Review

       We review issues involving construction of CR 68 offers of judgment de novo; and we 

review for clear error disputed factual findings concerning the circumstances under which the 

defendant made the offer.  Seaborn, 132 Wn. App. at 266 (quoting Herrington v. County of 

Sonoma, 12 F.3d 901, 906 (9th Cir. 1993)).  Washington's CR 68 is virtually identical to Federal

Rule of Civil Procedure 68.  Hodge v. Dev. Servs. of Am., 65 Wn. App. 576, 579, 828 P.2d 1175 

(1992).  Thus, in the absence of state authority, Washington courts look to federal interpretation 

of the equivalent rule.  Hodge, 65 Wn. App at 580.  In addition, courts must construe ambiguities 

in an offer of judgment against the drafter.  Seaborn, 132 Wn. App. at 272 (citing Nusom v. Comh 

Woodburn, Inc., 122 F.3d 830, 833 (9th Cir. 1997)).

                          B.  CR 68 Offers of Judgment; Default Rule

       CR 68 sets forth a procedure for defendants to offer to settle cases before trial.  The rule 

aims to encourage parties to reach settlement agreements and to avoid lengthy litigation.  

Dussault v. Seattle Pub. Sch., 69 Wn. App. 728, 732, 850 P.2d 581 (1993), review denied, 123 

Wn.2d 1004 (1994).  The rule achieves this objective by shifting any post-offer of judgment costs 

                                               7 

No.  40987-9-II

of litigation to a plaintiff who rejects a defendant's CR 68 offer and does not achieve a more 

favorable result at trial.  Seaborn calls this cost-shifting provision the "CR 68 default rule."  

Seaborn, 132 Wn. App. at 272.

       CR 68 provides, in relevant part:

              At any time more than 10 days before the trial begins, a party defending 
       against a claim may serve upon the adverse party an offer to allow judgment to be 
       taken against him for the money or property or to the effect specified in his offer, 
       with costs then accrued. If within 10 days after the service of the offer the adverse 
       party serves written notice that the offer is accepted, either party may then file the 
       offer and notice of acceptance together with proof of service thereof and 
       thereupon the court shall enter judgment. . . .  If the judgment finally obtained by 
       the offeree is not more favorable than the offer, the offeree must pay the costs 
       incurred after the making of the offer.

(Emphasis added).

       CR 68's use of the term "costs," accrued before and after the offer of judgment, may or 

may not include attorney fees depending on the underlying statute.  Hodge, 65 Wn. App. at 580.  

If a CR 68 offer of judgment is silent on the issue of attorney fees, then the court must look to the 

underlying statute or contract provision.  Seaborn, 132 Wn. App. at 267.  If the statute or 

contract provision defines "attorney fees" as "costs," then the court reads the offer of judgment as 

including attorney fees even though the offer of judgment does not expressly mention them.  

Seaborn, 132 Wn. App. at 267 (citing Marek v. Chesny, 473 U.S. 1, 9, 105 S. Ct. 3012, 87 L. 

Ed. 2d 1 (1985)).  If, however, the statute or contract defines "attorney fees" as separate from 

"costs," then the court must separately award attorney fees in addition to the offer of judgment 

amount.  Seaborn, 132 Wn. App. at 267 (citing Marek, 473 U.S. at 7).  Under Seaborn's 

articulation of the "default rule," CR 68 offers of judgment that are silent on attorney fees may 

                                               8 

No.  40987-9-II

trap an unwary plaintiff or defendant, depending on the language of the applicable underlying 

statute.12

       As Division One has carefully explained in Seaborn:

              The cases that follow Marek make one principle abundantly clear:  
       [A]lthough a CR 68 offer need not be a laundry list of everything that the offer 
       includes, a wise offeror will expressly state that the offer includes attorney fees.  If 
       not, and if the underlying statute or contract does not define attorney fees as part 
       of the costs, the offeree can seek those fees in addition to the amount of the offer.  
       Seaborn, as the maker of the offer [of judgment here], should have availed itself of 
       the chance to contravene the CR 68 default rule.  Any ambiguity in the lump sum
       offer of judgment is construed against Seaborn.

Seaborn, 132 Wn. App. at 272 (citations omitted).

       Hansen's offer of judgment did not mention attorney fees.      Thus, under Seaborn, we 

construe against her, any ambiguity in her lump sum offer of judgment, including whether the 

lump sum encompassed attorney fees; in so doing, we look to the underlying statute or contract 

for guidance.  Hansen's claim that she intended her offer to include attorney fees does not prevail 

anymore than did Seaborn's similar claim:

       . . . The only "evidence" Seaborn offered to the trial court was its insistence that it 
       intended attorney fees to be included.  The trial court concluded that although 
       Seaborn may have intended the offer to include attorney fees, that intention was 
       not expressed in the [offer of judgment] as written.  The court interpreted the 
       [offer of judgment] correctly.

Seaborn, 132 Wn. App. at 270-71.

12 For example, compare Seaborn, 132 Wn. App at 272 (holding defendant liable for attorney fees 
where its offer of judgment did not mention attorney fees and underlying statute did not define 
"attorney fees" as "costs"), with Hodge, 65 Wn. App. at 584 (noting defendants should be clear 
whether their offer of judgment includes attorney fees, in fairness to plaintiffs who may be caught 
off-guard if the underlying statute defines "attorney fees" as part of "costs").

                                               9 

No.  40987-9-II

       Just as Division One read the defendant's offer of judgment in Seaborn, we read Hansen's 

offer of judgment as "silent" on attorney fees, and we look instead to the language of the 

underlying statute, RCW 49.48.030, to determine whether it defines "attorney fees" separately 

from "costs." Although RCW 49.48.030 generally requires an employer to pay a successful wage-

claim litigant's attorney fees, the statute neither mentions the word "costs" nor specifically states 

whether attorney fees are defined or included as "costs" under this statute or elsewhere.13   As 

Division One has previously held in Hodge, however, RCW 49.48.030's silence is "precisely the 

dispositive point" of CR 68 offer-of-judgment case law, under both our state law and analogous 

federal precedent.  Hodge, 65 Wn. App. at 583.  In the absence of a statutory definition that 

includes attorney fees as part of "costs," we do not read attorney fees as "costs" for purposes of a 

CR 68 offer of judgment unless the offer of judgment expressly states that it includes attorney 

fees.  Hodge, 65 Wn. App. at 583-84.14

13 RCW 49.48.030 provides:
       In any action in which any person is successful in recovering judgment for wages 
       or salary owed to him or her, reasonable attorney's fees, in an amount to be 
       determined by the court, shall be assessed against said employer or former 
       employer:  PROVIDED, HOWEVER, That this section shall not apply if the 
       amount of recovery is less than or equal to the amount admitted by the employer 
       to be owing for said wages or salary.
(Emphasis added.)

14 We further note that, although ultimately decided on other grounds, Hodge suggests that RCW 
49.48.030 does not define attorney fees as "costs" under CR 68's default rules.  Hodge, 65 Wn. 
App. at 583-84.  As we discuss later in this opinion, the Hodge court held that the parties did not 
have a valid offer and acceptance, so it did not need to reach the merits of whether the plaintiff 
could recover attorney fees under RCW 49.48.030 when the defendant's offer of judgment was 
silent on attorney fees.  See Hodge, 65 Wn. App. at 583-84 (contrasting RCW 49.48.030 with 
RCW 49.60.030, a statute which explicitly includes attorney fees as part of costs).

                                               10 

No.  40987-9-II

       We hold, therefore, that because RCW 49.48.030 does not expressly provide that attorney 

fees are "costs" and because Hansen's offer of judgment did not specifically state that her CR 68 

offer of judgment included attorney fees, Lietz is entitled to recover attorney fees from Hansen in 

addition to the judgment amount specified in her offer of judgment.

                                       C.  Mutual Assent

       Lietz argues that the trial court erred in refusing to enter Hansen's April 19, 2010 offer of 

judgment based on its conclusion that the parties lacked mutual assent about whether Hansen's 

offer of judgment included Lietz's attorney fees.  Lietz lists the following indicia of mutual assent:  

(1) As expressed in the language of her offer, Hansen's objective manifestations conveyed her 

intent to settle "the claim"15 against her (highlighting the singular article in the offer); and (2) he 

(Lietz) unequivocally and unconditionally accepted Hansen's offer.16  Lietz also argues that the 

court must construe any ambiguity in the offer's language against Hansen because she drafted the 

document.  We agree.

                   1.  "Objective manifestation" theory of contract formation

       The "'usual rules of contract construction'" apply to offers of judgment.  Nusom, 122 F.3d 

at 833 (quoting Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir. 1995)); see also McGuire, 

169 Wn.2d at 188-89 (applying contract principles to settlement agreements generally).  A valid 

contract requires mutual assent, which generally takes the form of offer and acceptance.  Yakima 

15 Br. of Appellant at 21.

16 Without specifically addressing "mutual assent," Hansen baldly states that the trial court did not 
abuse its discretion.  See Reply Br. of Resp't at 4.

                                               11 

No.  40987-9-II

County (W. Valley) Fire Prot. Dist. No. 12 v. Yakima, 122 Wn.2d 371, 388-89, 858 P.2d 245 

(1993).  Washington follows the "objective manifestation test" for contract formation.  Wilson 

Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 699, 952 P.2d 590 (1998).

       Applying  this  "objective manifestation test," a court determines the parties' intent by 

focusing on their objective manifestations as expressed in the agreement.17  McGuire, 169 Wn.2d 

at 189 (citing Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 

(2005)).  A court may consider extrinsic evidence as an aid in interpreting a contract's words, but 

it cannot import one party's unexpressed, subjective intentions into the writing.  Seaborn, 132 

Wn. App. at 270 (citing Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990)).

       Hansen's offer of judgment did not specifically mention attorney fees or purport to resolve 

her counterclaim for frivolous litigation.  Her offer stated merely, "[Defendant Hansen] offers to 

settle the claim against defendants at the present time in the amount of $7,500.00."  CP at 43.  

Lietz responded nine days later, "[Lietz] accepts Defendants' offer of judgment . . . in the amount 

of seven thousand five hundred dollars ($7,500)."     CP at 45.  As McGuire  notes, under an 

"objective manifestation" theory of contract formation, we look primarily at the parties' words as 

expressed in the agreement (here, Hansen's offer and Lietz's acceptance).18 The parties' writings 

objectively manifested their intent to settle "the claim" that was made "against defendants." CP 

at 43.

17 The parties' subjective intent is generally irrelevant if the court can impute an intention 
corresponding to the reasonable meaning of the actual words used.  McGuire, 169 Wn.2d at 189.

18 Although a court may also look at extrinsic evidence to aid interpretation, the trial court here 
did not take oral testimony or conduct a factual hearing on the issue of mutual assent.

                                               12 

No.  40987-9-II

       Hansen's use of the article "the" suggests that the parties agreed to settle one claim, 

namely Lietz's unpaid wage claim against Hansen.  Clearly, the phrase "against defendants" shows 

that the agreement did not cover Hansen's counterclaim, a claim that defendant Hansen brought 

against plaintiff Lietz, not a claim brought "against" defendant Hansen, as required for a CR 68 

offer of judgment.  Although Hansen's offer of judgment19 included references to RCW 4.84.18520

and RCW 4.84.280,21 neither of these statutes applies here.  Thus, at best, the language of 

Hansen's offer of judgment is ambiguous.

       As we have previously noted, a court must construe any ambiguities in the CR 68 offer of 

judgment against Hansen, the drafter.  Seaborn, 132 Wn. App. at 272.  In denying Lietz's motion 

for reconsideration, however, the trial court appears to have considered Hansen's unexpressed 

subjective intentions and Hansen's attorney's acknowledgment that he had made a mistake in 

drafting the offer of judgment.22 The trial court erred when it applied these factors to determine 

19 At oral argument, Hansen claimed that she had drafted her offer of judgment by modifying a
standard form for use in connection with CR 68.  See also CP at 149 (apparently citing section 
68.21 Washington Practice guide).

20 RCW 4.84.185 addresses awarding reasonable attorneys fees to a party who prevails in an 
action opposing a frivolous lawsuit.  It is not clear why Hansen brought her offer of judgment 
under RCW 4.84.185.  Even if mentioning this statute could be said to evince her intent to waive 
attorney fees in her frivolous lawsuit counterclaim against Lietz, if Lietz agreed to settle his wage 
claim against her, such unexpressed intent of Hansen has no apparent bearing on Lietz's argument 
here that the parties objectively manifested mutual assent and that he is entitled to attorney fees 
under RCW 49.48.030.

21 RCW 4.84.280 sets out the procedure and timeframe for serving an offer of settlement on an 
adverse party in a case where the plaintiff originally pleaded $10,000 or less in damages.  Again, 
this statute has no apparent relevance here because Lietz originally pleaded $14,483.47 in 
economic damages, in excess of this statute's $10,000 limit.

22 For example, the trial court stated:

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No.  40987-9-II

that the parties lacked mutual assent.  As we note above, a court must look at the parties'

objective manifestations for contract formation, not their unexpressed subjective intentions, when 

interpreting an ambiguous contract or a CR 68 offer of judgment.  Similarly, Hansen's unilateral 

mistake in drafting the CR 68 offer cannot serve as a ground for voiding the CR 68 judgment 

under a lack-of-mutual-assent theory.23 Therefore, the trial court erred in ruling that the CR 68 

offer of judgment failed for lack of mutual assent.

                                    2.  Seaborn and Hodge

       Division One addressed a similar dispute over a CR 68 offer of judgment in Seaborn.  

Seaborn contracted to build a 70-foot pier for the Glews.  When the Glews did not pay, Seaborn 

sued to collect $1,824.48 owing.  Seaborn, 132 Wn. App. at 264-65.  Denying that they owed 

Seaborn money, the Glews counterclaimed for breach of contract, negligent misrepresentation,

and violation of the Consumer Protection Act.24  Seaborn, 132 Wn. App. at 265.  Seaborn made a 

CR 68 offer of judgment for $4,500 in exchange for the Glews' dismissal of their counterclaims25;

              I'm sure Ms. Hansen didn't realize she might be stuck with $35,000 in 
       attorney fees.  Now, maybe her attorney should have known better, but she's the 
       one that might have to pay.  So I'm going to deny the motion to reconsider over 
       the objection of [the] plaintiff.
TP (June 25, 2010) at 37-38.

23 As we note in footnote 10, a court may refuse to enforce a contract based on one party's 
unilateral mistake if the other party knew about the mistake at the time of contract formation and 
unfairly exploited the mistake.  Here, however, Hansen has neither alleged such facts nor appealed 
on these grounds.  Thus, we do not further address such argument.

24 Ch. 19.86 RCW.

25 Although Seaborn was the plaintiff in the underlying lawsuit, it was the defendant in the Glews'
counterclaims.  Thus, Seaborn could make a CR 68 offer of judgment to the Glews to settle their 
counterclaims.

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No.  40987-9-II

but, as here, Seaborn's offer of judgment did not expressly mention attorney fees or address its 

original collection claim for the pier construction.  Seaborn, 132 Wn. App. at 265.  Without 

modification or reservation, the Glews accepted Seaborn's offer and moved separately for 

attorney fees, which the trial court granted.  Seaborn, 132 Wn. App. at 266.

       On appeal, Seaborn tried to void its offer of judgment, arguing that there had been no 

"mutual assent" between the parties because it had intended its offer of judgment to include 

attorney fees.  Seaborn, 132 Wn. App. at 268.  Division One flatly rejected Seaborn's argument, 

holding that an offeror's subjective intent does not override its offer of judgment's express

language.  Seaborn, 132 Wn. App. at 269-70.  In essence, the appellate court concluded that the 

Glews satisfied the mutual assent requirement because they accepted defendant Seaborn's offer 

verbatim without modifying or qualifying their acceptance to include attorney fees.  See Seaborn, 

132 Wn. App. at 266, 270.  Construing the offer's ambiguous language against Seaborn, the 

drafter, Division One affirmed the trial court's ruling, which enforced Seaborn's offer of judgment 

and held Seaborn liable for the Glews' attorney fees.26  Seaborn, 132 Wn. App. at 272.

       Division One, however, reached a different conclusion in Hodge, where a defendant's 

offer of judgment stated that it included "all costs and expenses" but did not specifically mention 

attorney fees.  Hodge, 65 Wn. App. at 578.  Unlike Lietz, the plaintiff in  Hodge expressly 

qualified her acceptance of the defendant's offer of judgment by stating:  She "hereby accepts" the 

26 Federal courts have reached similar conclusions.  See, e.g., Hennessy v. Daniel Law Office, 270 
F.3d 551, 553-54 (8th Cir. 2001) (holding defendant's offer ambiguous because the word 
"judgment" was unclear; nevertheless, the agreement was still enforceable because the plaintiff 
unambiguously accepted it, without question or qualification).

                                               15 

No.  40987-9-II

defendant's offer of judgment, but it "shall not include plaintiff's actual attorneys' fees."27  Hodge, 

65 Wn. App. at 578 (emphasis added).  The defendant, in turn, claimed that its original offer 

included attorney fees.  Holding the defendant's offer of judgment void, Division One held that,

under contract law, the plaintiff's qualified "acceptance," with its mention that the settlement did 

not include attorney fees, amounted to a counteroffer and a rejection of the defendant's offer of 

judgment.28  Hodge, 65 Wn. App. at 582.  Although the opinion did not use such terms, Hodge

essentially ruled that the parties' objective manifestations showed they lacked mutual assent; and 

thus, the parties did not form a valid contract when the plaintiff qualified her acceptance of the 

defendant's offer of judgment to include attorney fees.

27 Hodge addressed two statutes:  RCW 49.60.030(2) and RCW 49.48.030.  Because RCW 
49.60.030(2) defines attorney fees as "costs," attorney fees were automatically included in the 
defendant's CR 68 offer of judgment under the default rule, even though the offer did not mention 
attorney fees.  The court did not address the plaintiff's recovery of attorney fees under RCW 
49.48.030, the statute under which Lietz sued here, because it found there was not a valid 
acceptance.  Hodge, 65 Wn. App. at 584.

28 Federal courts have reached similar conclusions.  See, e.g., Radecki v. Amco Oil Co., 858 F.2d 
397, 403 (8th Cir. 1988) (invalid acceptance and, consequently no mutual assent, where plaintiff 
received two offers of judgment from defendant before accepting either and the second offer of 
judgment expressly clarified that the first offer included attorney fees); Stewart v. Prof'l Computer 
Ctrs., Inc., 148 F.3d 937, 938 (8th Cir. 1998) (no mutual assent where plaintiff asked defendant 
to clarify what the offer included, defendant responded that offer included all "counts," which 
encompassed attorney fees, and plaintiff purported to accept original offer without attorney fees).  
These cases indicate that a court may invalidate a CR 68 judgment based on lack of mutual assent 
when a plaintiff expressly qualifies his acceptance to exclude attorney fees from the judgment 
amount or otherwise has actual knowledge that he is accepting an offer materially different from 
the offer the defendant made.  Neither of these scenarios applies here.

                                               16 

No.  40987-9-II

                                          3.  McGuire

       Hansen relies almost exclusively on McGuire, in which, she contends, the Washington 

Supreme Court ruled on "precisely the issue here."29  Reply Br. of Resp't at 5.  This argument 

fails.  First, we note that McGuire addresses RCW 4.84.250,30 a different settlement statute than 

the one at issue here.  McGuire, 169 Wn.2d at 187.  McGuire also does not disturb the clear line 

of cases permitting a plaintiff to seek attorney fees where a defendant's CR 68 offer of judgment 

is silent on attorney fees and the applicable underlying statute does not define "attorney fees" as 

"costs." In McGuire, the defendant made three offers of settlement; the plaintiff accepted the 

third offer, which purportedly settled "all claims" for $2,180 under RCW 4.84.250-.280, but did 

not explicitly state whether it included attorney fees.  McGuire, 169 Wn.2d at 188.  The plaintiff 

moved for entry of judgment and an award of attorney fees and costs under RCW 18.27.040(6)31, 

the relevant attorney fee statute.  McGuire, 169 Wn.2d at 188.  The trial court entered judgment 

for the settlement amount    and awarded the plaintiff attorney fees; Division One affirmed.  

29 In the trial court, Hansen also argued against enforcing the offer of judgment as not including 
attorney fees based on scrivener's error and unilateral mistake.  But she does not raise or argue 
these issues on appeal.

30 RCW 4.84.250 has generated its own line of case law, distinct from case law addressing CR 68 
offers of judgment.  RCW 4.84.250 provides:
       Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, 
       in any action for damages where the amount pleaded by the prevailing party as 
       hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or 
       less, there shall be taxed and allowed to the prevailing party as a part of the costs 
       of the action a reasonable amount to be fixed by the court as attorneys' fees.  After 
       July 1, 1985, the maximum amount of the pleading under this section shall be ten 
       thousand dollars.

31 RCW 18.27.040(6) is not at issue here.

                                               17 

No.  40987-9-II

McGuire, 169 Wn.2d at 188.

       Division One analogized settlement offers under RCW 4.84 to CR 68 offers of judgment 

and held that the plaintiff was entitled to additional attorney fees because, under Seaborn, the 

defendant's offer did not specify that it included attorney fees and the underlying statute allowed 

the plaintiff to recover attorney fees.  McGuire v. Bates, 147 Wn. App. 751, 755-56, 198 P.3d 

1038 (2008), rev'd, 169 Wn.2d 185, 234 P.3d 205 (2010).  Noting that the Court of Appeals had 

"misapplied Seaborn," however, the Washington Supreme Court reversed, holding:

       We say that because the settlement offer that was accepted by McGuire settled "all
       claims" and one of the claims was for attorney fees[, t]he settlement offer, thus, 
       was not silent regarding attorney fees.
       . . .
       There is only one reasonable meaning that can be ascribed to the words in their 
       agreement to settle "all claims" "pursuant to RCW 4.84.250-.280." That meaning, 
       we believe, is that all claims encompasses all claims, including claims for attorney 
       fees.

McGuire,  169 Wn.2d at 190-91 (emphasis added).  Based on the parties'                 objective 

manifestations, the Supreme Court concluded that the settlement offer included attorney fees.  

McGuire, 169 Wn.2d at 191.  Nevertheless, McGuire neither overruled Seaborn nor held that 

Seaborn should not inform how a court construes settlement offers or CR 68 offers of judgment.  

McGuire, 169 Wn.2d at 190-91.  Rather, McGuire appears to underscore that when a settlement 

offer explicitly states that it settles "all claims," it means precisely what it says:  The settlement 

agreement extinguishes all claims relating to the underlying dispute, including any related claims 

for attorney fees.

       Hansen attempts to read her offer of judgment like the settlement agreement in McGuire, 

                                               18 

No.  40987-9-II

apparently because she used the words "settle" and "settlement" in her CR 68 offer of judgment.  

See Reply Br. of Resp't at 5-8.  Even assuming, without deciding, that we were to read Hansen's 

offer of judgment as an "offer of settlement" under chapter 4.84 RCW, her argument fails because 

the statutory provisions in RCW 4.84.250-.280 apply to settlement offers where a plaintiff 

originally pleaded $10,000 or less in damages, which is not the case here.  In addition, Hansen's 

argument overlooks that her offer specifically stated that it would settle  "the claim  against 

defendants," language that objectively manifested that she was offering to settle only a portion of 

the litigants' entire dispute; thus, Hansen's offer did not state or imply that it would settle "all

claims" relating to the underlying dispute as did the offer at issue in McGuire.

       We hold that Hansen's offer of judgment was ambiguous at best.  Construing any 

ambiguity against Hansen as the drafter, we further hold that Hansen's offer of judgment did not 

include attorney fees, that there are sufficient indicia of mutual assent to enforce the offer of 

judgment, and that Lietz is entitled to an award of attorney fees in addition to the $7,500 CR 68 

judgment amount.

                               II.  RCW 49.48.030 Attorney Fees 

                                            A. Trial 

       Lietz argues that the trial court erred in failing to award him reasonable attorney fees, in 

essence, as a result of its refusal to enter the parties' CR 68 judgment based on the trial court's 

finding "no meeting of the minds."  Br. of Appellant at 11.  More specifically, Lietz argues that he 

is entitled to attorney fees below because (1) Hansen's offer of judgment did not mention attorney 

fees and RCW 49.48.030 does not define "attorney fees" as "costs"32; and (2) therefore, under 

                                               19 

No.  40987-9-II

Seaborn and the CR 68 cost-shifting rules discussed above, the trial court was required to award 

him attorney fees in addition to the judgment amount.  We agree.

       We review questions of statutory interpretation de novo; we interpret statutes to give 

effect to the legislature's intentions.  State v. Bunker, 169 Wn.2d 571, 577-78, 238 P.3d 487 

(2010).  We begin by examining the statute's plain language.  Bunker, 169 Wn.2d at 578.  When a 

statute is ambiguous, we resort to principles of statutory construction, legislative history, and 

relevant case law to assist in interpretation.  Yousoufian v. Office of King County Executive, 152 

Wn.2d 421, 434, 98 P.3d 463 (2004) (quoting State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 

(2002)).  "'[A] statute is ambiguous if it can be reasonably interpreted in more than one way.'"  

Yousoufian, 152 Wn.2d at 433-34 (quoting Vashon Island Comm. for Self-Gov't v. Wash. State 

Boundary Review Bd., 127 Wn.2d 759, 771, 903 P.2d 953 (1995)).

       The parties do not argue that either CR 68 or RCW 49.48.030, the attorney fee statute 

under which Lietz sued, is ambiguous.  Instead, Lietz argues that the trial court erred in failing to 

award him attorney fees under Seaborn and similar case law because Hansen's offer of judgment 

was silent on attorney fees and RCW 49.48.030 does not define attorney fees as costs.  The trial 

court did not reach the merits of Lietz's attorney fee argument because it determined that the 

parties did not have a "meeting of the minds," and, thus, the CR 68 offer of judgment was invalid.  

VRP (May 14, 2010) at 15.

       CR 68 provides, in relevant part:

       If within 10 days after the service of the offer the adverse party serves written 
       notice that the offer is accepted, either party may then file the offer and notice of 
       acceptance together with proof of service thereof and thereupon the court shall 

32 Br. of Appellant at 17.

                                               20 

No.  40987-9-II

       enter judgment.

(Emphasis added).  The plain language of CR 68 states the court "shall" enter judgment upon 

notice of service and acceptance of an offer of judgment.

       In addition, RCW 49.48.030, under which Lietz brought his attorney fee claim, states that 

the court "shall" award reasonable attorney fees to "any person" who is "successful" in recovering 

a "judgment" for wages or salary.33 As a matter of statutory interpretation, the word "shall" in a 

statute is presumptively imperative, and it imposes a mandatory requirement unless a contrary 

legislative intent is apparent.  State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994) (quoting

Erection Co. v. Dep't. of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993)).  In 

determining the meaning of the word "shall," Washington courts have traditionally considered 

legislative intent as evidenced by all the terms and provisions of the act in relation to the subject of 

the legislation, the nature of the act, the general object to be accomplished, and the consequences 

that would result from construing the particular statute in one way or another.  Krall, 125 Wn.2d 

at 148 (quoting State v. Huntzinger, 92 Wn.2d 128, 133, 594 P.2d 917 (1979)).

       The legislature "evidenced a strong policy in favor of payment of wages due employees by 

enacting a comprehensive [statutory] scheme to ensure payment of wages," including the statute 

33 RCW 49.48.030 provides:
       In any action in which any person is successful in recovering judgment for wages 
       or salary owed to him or her, reasonable attorney's fees, in an amount to be 
       determined by the court, shall be assessed against said employer or former 
       employer; PROVIDED, HOWEVER, That this section shall not apply if the 
       amount of recovery is less than or equal to the amount admitted by the employer 
       to be owing for said wages or salary.
(Emphasis added.)

                                               21 

No.  40987-9-II

here, which provides both criminal and civil penalties.  Schilling v. Radio Holdings, Inc., 136 

Wn.2d 152, 157, 961 P.2d 371 (1998) (referencing RCW 49.48.030).  "'[A]ttorney fees are 

authorized under the remedial statutes to provide incentives for aggrieved employees to assert 

their statutory rights.'"  Int'l Ass'n of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2d 29, 

35, 42 P.3d 1265 (2002) (alteration in original) (quoting Hume v. Am. Disposal Co., 124 Wn.2d 

656, 673, 880 P.2d 988 (1994)).  According to the Washington Supreme Court, RCW 49.48.030 

is a remedial statute that courts must construe broadly and liberally in favor of persons recovering 

unpaid wages.  Int'l Ass'n of Fire Fighters, Local 46, 146 Wn.2d at 35.

       Attorney fees are recoverable under RCW 49.48.030 for breach of an employment 

contract and for breach of labor contract.34 Courts have construed the phrase "wages or salary"

owed in RCW 49.48.030 to include back pay,35 front pay,36 sick leave reimbursement,37 and 

commissions.38  Given this broad construction and that RCW 49.48.030 is a remedial statute,

which aims to deter employers from withholding wages, it appears that the legislature used the 

word  "shall" to make mandatory the employer's payment of a successful wage-claiming 

34 Gaglidari v. Denny's Rest., 117 Wn.2d 426, 450, 815 P.2d 1362 (1991); Kohn v. Georgia-Pac.
Corp., 69 Wn. App. 709, 727-28, 850 P.2d 517 (1993); Naches Valley Sch. Dist. No. JT3 v. 
Cruzen, 54 Wn. App. 388, 399, 775 P.2d 960 (1989).

35 Gaglidari, 117 Wn.2d at 449-50.

36 Hayes v. Trulock, 51 Wn. App. 795, 802, 806, 755 P.2d 830 (1988) ("Front pay" compensates 
an employee for lost future earnings, representing the difference between what the employee 
would have earned from his former employer and the amount, if any, he may expect to earn from 
his new employer).

37 Naches Valley, 54 Wn. App. at 398-99.

38 Dautel v. Heritage Home Ctr., Inc., 89 Wn. App. 148, 153, 948 P.2d 397 (1997).

                                               22 

No.  40987-9-II

employee's attorney fees:  When "any person is successful in recovering judgment for wages or 

salary owed to him or her, reasonable attorney's fees . . . shall be assessed against said employer 

or former employer." RCW 49.48.030.

       As we have already discussed, state and federal case law is clear that, where, as here, a CR 

68 offer of judgment is silent on the issue of attorney fees, and the underling statute does not 

define attorney fees as "costs," a trial court must award attorney fees in addition to the offer of

judgment amount.  Seaborn, 132 Wn. App. at 267.  Because Hansen's offer of judgment was 

silent on the issue of attorney fees and RCW 49.48.030 does not define attorney fees as costs, 

Lietz was entitled to reasonable attorney fees in addition to the amount specified in Hansen's 

April 19, 2010 offer of judgment.  We further hold that the word "shall" in CR 68 and RCW 

49.48.030 imposes a mandatory requirement on the trial court, and we remand the case to the trial 

court for a determination of reasonable attorney fees in Lietz's favor.

                                           B.  Appeal

       Lietz also requests attorney fees on appeal, independent of his claim for attorney fees 

under  Seaborn and the parties' CR 68 judgment.  RAP 18.1 allows us to award reasonable 

attorney fees where, as here, a statute provides for such fees and the party requests the fees in his 

opening brief.  RAP 18.1(a)-(b); Dice v. City of Montesano, 131 Wn. App. 675, 693, 128 P.3d 

1253 (2006).  RCW 49.48.030 grants attorney fees to an employee who is successful in a wages 

claim against his employer.  RCW 49.48.030; see also Dice, 131 Wn. App. at 693 (employee 

entitled to attorney fees on appeal where he sued under RCW 49.48.030).  Because employee 

Lietz prevails on appeal against his former employer, Hansen, he is entitled to attorney fees on 

                                               23 

No.  40987-9-II

appeal in an amount that our court commissioner will determine when Lietz complies with RAP 

18.1.

                                               24 

No.  40987-9-II

       We reverse the trial court's ruling on mutual assent and remand to the trial court to enter 

the CR 68 judgment offer and to award reasonable attorney fees to Lietz.

                                                 Hunt, P.J.
We concur:

Van Deren, J.

Johanson, J.

                                               25