Volume 85 — Washington Reports, Second Series

<bold>[1] Estoppel — Elements.</bold> Equitable estoppel requires an admission, statement, or act inconsistent with the claim afterwards asserted by one party, coupled with action by the other party on the faith of such act, and resulting injury to such other party if the first party is permitted to contradict or repudiate the act. <bold>[2] Appeal and Error — Review — Mixed Findings and Conclusions —</bold> <bold>Effect.</bold> A finding of fact that mixes both fact and law may be treated as a conclusion of law and reviewed by an appellate court. <bold>[3] Estoppel — Injury — Necessity.</bold> Equitable estoppel may not be invoked on the basis of the mere possibility of injury resulting to the relying party. <bold>[4] Reformation of Instruments — Mutual Mistake — Burden of</bold> <bold>Proof.</bold> The party seeking reformation of an instrument has the burden of proving by clear, cogent, and convincing evidence that the mutual intent of the parties is not properly reflected by the terms of the instrument. <bold>[5] Reformation of Instruments — Mutual Mistake — Clerical</bold> <bold>Error.</bold> While a clerical error by the drafter of an instrument is a unilateral act, a mutual mistake has occurred when such error causes the instrument to fail to reflect the mutual intent of the parties. <block_quote> [See Ann. 135 A.L.R. 1452, 1456; 66 Am.Jur.2d, Reformation of Instruments § 21.]</block_quote>

<bold>[1] Damages — Liquidated Damages — Alternate Remedies — In</bold> <bold>General.</bold> A liquidated damages provision which fixes the damages for breach of an agreement unless a party "elects to enforce" the agreement, does not permit an action for actual damages as an optional remedy. <bold>[2] Damages — Liquidated Damages — Penalty — What Constitutes.</bold> A liquidated damages provision of a contract constitutes a penalty and is unenforceable only when it requires the payment of a fixed sum as a punishment for failure to meet a primary contractual obligation. [See Ann. 138 A.L.R. 604; 22 Am.Jur.2d, Damages § 213.] <bold>[3] Damages — Liquidated Damages — Penalty — Low Estimate.</bold> Except for fraud or overreaching a party is bound by a voluntarily agreed to liquidated damages provision that does not amount to a penalty. A liquidated damages provision is not a penalty because it is unreasonably low. <bold>[4] Pleading — Affirmative Defenses — Failure To Plead —</bold> <bold>Effect.</bold> The purpose of the requirement of CR 8(c) that parties affirmatively plead certain defenses is to avoid surprise. When a failure to so plead does not affect substantial rights of the parties, it is harmless. The failure to object at trial to argument in connection with a defense which was not affirmatively pleaded waives a later objection thereto. <bold>[5] Estoppel — Elements — Reliance.</bold> For purposes of an assertion of equitable estoppel, there must be <italic>actual</italic> reliance by the asserting party on an admission, statement, or act of another party.<page_number>Page 96</page_number>

<bold>[1] Statutes — Construction — Retroactive Effect — Remedial</bold> <bold>Legislation.</bold> Remedial legislation is presumed to apply retroactively whenever its remedial purpose will thereby be furthered. <bold>[2] Automobiles — Operator's License — Revocation — Stay —</bold> <bold>Statutory Provisions — Retroactive Effect.</bold> The provision of RCW <cross_reference>46.65.060</cross_reference> which grants a court the authority to stay certain alcoholism-related license revocations in habitual traffic offender proceedings, applies to revocations which occurred prior to the effective date of the provision. <block_quote> [See Ann. 9 A.L.R.3d 756; 7 Am.Jur.2d, Automobiles and Highway Traffic § 112.]</block_quote> <bold>[3] Statutes — Construction — Retroactive Effect — Reduction of</bold> <bold>Criminal Penalty.</bold> The legislature is presumed to intend a statute which reduces a criminal penalty to have a retroactive effect, absent any indication otherwise. <bold>[4] Automobiles — Operator's License — Revocation — Stay —</bold> <bold>Timeliness.</bold> An order issued under RCW <cross_reference>46.65.060</cross_reference> staying a license revocation in a habitual traffic offender proceeding need not be entered at the time the revocation is ordered but may be noted on the order at a subsequent time.

<bold>[1] Parties — Intervention — Timeliness — Considerations.</bold> In determining whether a motion to intervene in an action is timely, for purposes of CR 24(a) which governs intervention as a matter of right, a court must consider all circumstances, including any prior notice of the lawsuit to the moving party and the circumstances which contributed to delay. <block_quote> [See Ann. 37 A.L.R.2d 1306; 59 Am.Jur.2d, Parties §§ 167-170.]</block_quote> <bold>[2] Parties — Intervention — Timeliness — Motion After</bold> <bold>Judgment.</bold> A party who seeks to intervene in an action as a matter of right under CR 24(a) after a judgment has been entered must make a strong showing. When a party's delay in seeking to intervene until after judgment is caused solely by tactical considerations, the motion to intervene cannot be considered timely. <bold>[3] Judgment — Vacation — Discretion of Court — Review.</bold> The granting of a motion to vacate a judgment is within the discretion of the trial court whose determination may be overturned on appeal only upon a showing of abuse.