DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division II
                               State of Washington

                            Opinion Information Sheet

Docket Number:       25943-5-II
Title of Case:       G. Shayne Toliver, D.O., Appellant
                     v.
                     Convenient Physicians Services, P.S., Respondent
File Date:           08/10/2001


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Cowlitz County
Docket No:      99-2-01315-9
Judgment or order under review
Date filed:     04/14/2000
Judge signing:  Hon. James Edgar F. Warme


                                     JUDGES
                                     ------
Authored by J. Dean Morgan
Concurring: Elaine M. Houghton
            Visiting Judge


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Robert W. Huffhines Jr.
            Attorney At Law
            206 N. Pacific Ave.
            Kelso, WA  98626

Counsel for Respondent(s)
            Paul R. Roesch Jr.
            Attorney At Law
            1315 14th Ave
            Longview, WA  98632-3701

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION  II

GEORGE SHAYNE TOLIVER, D.O.,     No.  25943-5-II

                    Appellant,

     v.

CONVENIENT PHYSICIANS SERVICES,  UNPUBLISHED OPINION
P.S., d/b/a CONVENIENT
HEALTHCARE, a Washington
professional medical
corporation;  and COMPETITIVE
STRATEGIES, INC., a Washington
Corporation,

                                 Filed:
Respondents.

MORGAN, P.J. -- George Shayne Toliver, D.O., sued Convenient Physicians
Services, P.S., for unpaid wages.  Convenient counterclaimed, arguing that
Toliver had breached his written employment agreement.  On Toliver's claim,
the trial court awarded single damages but not double damages.  On
Convenient's claim, the trial court found a breach and awarded damages of
$4,000.  Toliver appeals, but we affirm.
At the times material here, Convenient operated a medical clinic.
Beginning in 1995, it employed Toliver as one of its doctors.  It
maintained its office in a building owned by Competitive Strategies, Inc.
Bob White was the administrator of Convenient and president of Competitive.
Effective March 2, 1996, Convenient and Toliver entered into a written
employment agreement.  They provided that Convenient
hereby employs . . . Toliver . . . and {Toliver} hereby accepts employment
. . . for a period of 12 months, at a basic rate of $25.00 per hour plus
18% (eighteen per cent) of adjusted charges.  Without either party's being
bound, {Convenient} and {Toliver} anticipate their mutual renewal of this
Agreement . . . from a fiscal year to a fiscal year . . . unless either
party notifies the other in writing to the contrary at least sixty (60)
days before the end of {Convenient's} fiscal year.  In addition, {Toliver}
will receive a proportional distribution of revenues generated through
managed care programs.{1}

     On October 19, 1996, Toliver and White signed a 'memorandum'
concerning a weight management program.  They stated in part:
It is our common goal to develop the program and move it to another
location.  In addition, a new business entity will be created.  You will
establish ownership in the new entity.  Competitive . . . will provide
management services to the new entity.
     . . . .
During the development phase of the program at Convenient Healthcare,
revenues from the professional fee component will be divided equally . . .
between you and the clinic. . . .  You will not provide other medical
services . . . while you are providing weight management services.  You
will . . . not provide weight management services while you are working as
our urgent care physician.{2}

White signed the memorandum without stating his principal and his title, so
the memorandum does not show whether he was signing for Competitive,
Convenient, or both.
     Toliver began the weight management program in Convenient's place of
business and Competitive's building.  In July 1997, however, he moved the
program to a new location without notice to Convenient.  On August 6, 1997,
Convenient terminated his employment, effective October 5, 1997, because he
had moved the program without notice.
     On August 24, 1999, Toliver sued Convenient for unpaid wages.  Relying
on the March 2 employment agreement, he claimed that Convenient had
willfully withheld his proportional share of 1996 revenues from managed
care programs; that the unpaid amount constituted unpaid wages; and that he
should receive double damages under RCW 49.52.050 and .070.
     On September 27, 1999, Convenient counterclaimed for breach of
contract.  Relying on the October 19 memorandum, it claimed that Toliver
had been operating the weight management program as its employee; that he
had terminated part of his employment when he moved the program without
notice; and that he had breached the 60-day notice provision in the March 2
employment agreement.
     In April 2000, after a bench trial, the trial court sustained in part
Toliver's claim for wages and Convenient's counterclaim for breach of
contract.  On Toliver's claim, the trial court found that Convenient had
withheld $7,748 in 1996 revenues; that these revenues were wages; that the
withholding was not 'willful;' and that Toliver was entitled to single but
not double damages.  On Convenient's counterclaim, the trial court found
that Toliver had been operating the weight management program as
Convenient's employee; that he had terminated part of his employment when
he moved it; that he had been required to give, but had not given, 60 days
notice; and that Convenient had been damaged in the amount of $4,000.
After calculating pre-trial interest on the $7,748 but not on the $4,000,
and offsetting the latter against the former, the trial court granted
Toliver a net judgment of $5,610.  Under RCW 49.48.030, but not under RCW
49.52.050 or .070, the trial court also awarded Toliver his reasonable
attorney's fees.
     Toliver now appeals.  He claims that the trial court erred by not
doubling the $7,748, and by finding that he was required to give 60 days
notice before moving the weight management program.  He also claims
reasonable attorney fees on appeal.
I.
     Toliver first claims that the trial court erred by denying double
damages under RCW 49.52.050 and .070.  We disagree.
     Under RCW 49.52.050 and RCW 49.52.070, an employee's entitlement to
double damages turns on whether the employer willfully withholds wages.
RCW 49.52.050(2) provides that '{a}ny employer . . . who . . . {w}illfully
and with intent to deprive the employee of any part of his wages, shall pay
any employee a lower wage than the wage such employer is obligated to pay
such employee by any . . . contract . . . {s}hall be guilty of a
misdemeanor.'  RCW 49.52.070 provides that '{a}ny employer . . . who shall
violate any of the provisions of subdivisions (1) and (2) of RCW 49.52.050
shall be liable in a civil action by the aggrieved employee . . . to
judgment for twice the amount of the wages unlawfully . . . withheld{.}'
     Whether an employer willfully withholds wages turns on the presence or
absence of a bona fide dispute.  '{A}n employer's failure to pay wages is
not willful {when} . . . a 'bona fide' dispute exist{s} between the
employer and employee regarding the payment of wages.'3  An employer's
failure to pay wages is willful if, in the absence of a bona fide dispute,
he or she does not pay them.
A bona fide dispute is 'a 'fairly debatable' dispute over whether an
employment relationship exists, or whether all or a portion of the wages
must be paid.'4  Such a dispute may arise when an employer does not pay
wages because the employee owes an employment-related debt to the employer.
In Cameron v. Neon Sky, Inc.,5 the employer acknowledged that it owed the
employee wages, but it claimed that it was entitled to reimbursement from
the employee for overpayments made earlier.  Consistently with its claim,
it paid only the difference between the wages it owed and the reimbursement
it claimed.  The employee responded by suing for double damages.  Division
I denied double damages, stating:
{T}he issue is whether deduction for an alleged debt from wages due upon
termination of employment is, as a matter of law, a willful withholding of
wages in violation of RCW 49.52.050.  We hold that it is not.{6}

But Division I granted single damages and reasonable attorney fees,
stating:
{T}he {employer} violated RCW 49.48.010, which makes it unlawful for an
employer to withhold or divert any portion of an employee's wages except in
three limited circumstances, none of which apply here.  Under that statute,
the {employer's} deduction for an alleged debt was an unauthorized setoff.
The statute clearly anticipates that an employer's remedy to collect a debt
owed by an employee or former employee shall be the right to sue.{7}

     Neon Sky applies here.  Convenient owed unpaid wages to Toliver.
Toliver owed a debt to Convenient by virtue of moving the weight management
program without 60 days notice.  By unilaterally offsetting the debt
against unpaid wages, Convenient violated RCW 49.48.010 and subjected
itself to reasonable attorney fees; but by unilaterally offsetting the debt
against unpaid wages, Convenient did not 'willfully' withhold wages within
the meaning of RCW 49.52.050(2).  The trial court so ruled, and we affirm
its denial of double damages.
II.
     Toliver next claims that he 'was not an employee of {Convenient} in
the weight management business under the March 1996 employment
agreement{,}' and that he 'had no obligation to give 60 days notice.'8  We
disagree.
When a written agreement is subject to two or more reasonable readings, it
is ambiguous.9  When a written agreement is ambiguous, the trial court must
ascertain the intent of the parties and make appropriate findings of fact.10
On appeal, we review the trial court's findings for substantial evidence.11
The written agreement at issue here is the October 19 memorandum.
According to Convenient, it was a three-party agreement among Convenient,
Competitive, and Toliver.  It supplemented the March 2 employment
agreement.  It adopted that agreement's requirement of
60 days notice before severing the employment relationship; and Toliver had
severed the relationship or a substantial part thereof when he moved the
program out of Convenient's offices.  According to Toliver, the October 19
memorandum was a two-party agreement between him and Competitive; it had
nothing to do with the employment relationship between him and Convenient,
and it did not require him to give Convenient 60 days notice before moving
the weight management program.
After hearing and evaluating the witnesses, the trial court agreed with
Convenient.  It found in essence that Convenient was a party to the October
19 memorandum; that the October 19 memorandum supplemented the March 2
employment agreement; and that Toliver owed Convenient 60 days notice.
Toliver had not given such notice, and Convenient had suffered $4,000
damages as a result.
Substantial evidence supports Convenient's and the trial court's reading of
the October 19 memorandum.  When White signed the memorandum, he did not
state his principal or his title; he may have signed for Convenient,
Competitive, or both.  The memorandum recites that '{i}t is our common goal
to develop the {weight management} program{,}' and that 'you will . . . not
provide weight management services while you are working as our urgent care
provider.'12  It is undisputed that Toliver was working for Convenient, not
Competitive, as an urgent care provider.  Because the memorandum was
ambiguous, a trier of fact could rationally have inferred that Convenient
was a party to the memorandum; that Convenient and Toliver intended the
memorandum to supplement the March employment agreement; that Toliver owed
Convenient 60 days notice before moving the weight management program; that
Toliver failed to give such notice; and that Convenient suffered $4,000 in
damages.
Neither side shall receive costs or reasonable attorney fees on appeal
Affirmed.
     A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.

                                 Morgan, P.J.
We concur:

Houghton, J.
Stonier, J.P.T.13

1 Clerk's Papers (CP) at 6 (emphasis omitted).

2 Id. at 17 (embolding added).
3 Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 160, 961 P.2d 371
(1998).
4 Schilling, 136 Wn.2d at 161 (citing a list of cases discussing 'bona
fide' disputes) (citations omitted).
5 Cameron v. Neon Sky, Inc., 41 Wn. App. 219, 703 P.2d 315, review denied,
104 Wn.2d 1026 (1985).

6 Cameron, 41 Wn. App. at 222.

7 Cameron, 41 Wn. App. at 223.
8 Br. of Appellant at 13.
9 Jack v. Paul Revere Life Ins. Co., 97 Wn. App. 314, 318, 982 P.2d 1228
(1999), review denied, 140 Wn.2d 1019 (2000); Martinez v. Miller Indus.,
Inc., 94 Wn. App. 935, 944, 974 P.2d 1261 (1999) (quoting Mayer v. Pierce
County Med. Bureau, Inc., 80 Wn. App. 416, 421, 909 P.2d 1323 (1995)).

10 Lehrer v. Dep't of Soc. & Health Servs., 101 Wn. App. 509, 516, 5 P.3d
722, review denied, 142 Wn.2d 1014 (2000).

11 Wenatchee Sportsmen Assoc. v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d
123 (2000); Roeder Co. v. K & E Moving & Storage Co., Inc., 102 Wn. App.
49, 52, 4 P.3d 839 (2000), review denied, 142 Wn.2d 1017 (2001).
12 CP at 17.
13 Judge Stonier is serving as a judge pro tempore of the Court of Appeals,
Division II, pursuant to CAR 21.