In the unpublished case of Madero Construction, LLC v. Fullwiler Construction, Inc., 2025 WL 588159, No. 86281-2-I (Div. I, Feb. 24, 2025), the Court of Appeals addressed the question of what constitutes sufficient evidence of a contractor’s damages. This case involved a dispute between subcontractor Madero Construction, LLC (“Madero”) and general contractor Fullwiler Construction, Inc. (“Fullwiler”) related to unpaid invoices for framing work on a townhome project in Ballard, Washington.
Fullwiler’s superintendent instructed Madero to deviate from the approved roof plans. Later, a replacement superintendent demanded correction. Madero reworked the roofing per updated instructions, then ceased work after Fullwiler withheld payment on three invoices totaling $132,791.61. Madero recorded a mechanic’s lien and sued Fullwiler for breach of contract. Following a bench trial, the trial court ruled that: (1) Fullwiler breached the contract by failing to pay Madero; and (2) Madero did not perform defective work because deviations from the approved plans were instructed by Fullwiler’s superintendent. Fullwiler appealed.
On appeal, Fullwiler challenged the sufficiency of the evidence of Madero’s damages, particularly that Madero failed to prove damages related to Invoices 9 and 10 (amounting to 62 percent of Madero’s alleged damages). The Court of Appeals found that the evidence of damages before the superior court included an un-objected-to “notice of default,” mechanic’s lien, and a demonstrative spreadsheet summarizing the unpaid invoices, and that Fullwiler’s own COO testified to the spreadsheet’s accuracy. The Court cited prior precedent holding that while damages must be proved with reasonable certainty, this certainty requirement “ ‘is concerned more with the fact of damage than with the extent or amount of damage.’ ” Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wn.2d 712, 717, 845 P.2d 987 (1993). As to the amount of damage, “ ‘Evidence of damage is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.’ ” Clayton v. Wilson, 168 Wn.2d 57, 72, 227 P.3d 278 (2010). “ ‘Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.’ ” Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 497, 254 P.3d 835 (2011). The Court found that the trial court did not improperly shift the burden of proof; rather, it found Madero’s evidence persuasive and Fullwiler’s rebuttal insufficient. The Court concluded that Madero’s evidence of damages was sufficient, distinguishing this case from other precedents requiring more than speculative damages, and affirmed.
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This unpublished opinion serves as a warning to general contractors that a subcontractor’s evidence of damages need not be encyclopedic to merit consideration. The case also serves as a reminder to subcontractors that construction disputes hinge heavily on detailed records (e.g., invoices, lien filings, emails), and the more a contractor can record evidence of their damages, the more likely they are to avoid a drawn-out contest in court.