IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ZENITH GLOBAL SOLUTIONS, INC., dba ZENITH CAPITAL, a Washington DIVISION ONE corporation, No. 81490-7-I Respondent, UNPUBLISHED OPINION v. LINDEN VILLAGE ASSISTED LIVING COMMUNITY, LLC, a Washington limited liability company, Appellant. DWYER, J. — Linden Village Assisted Living Community, LLC appeals from a judgment entered against it following a bench trial. The judgment resulted from a finding that Linden had breached its contract with Zenith Global Solutions, Inc. Linden contends that the trial court erred in awarding damages to Zenith because Zenith also breached the contract at issue. Further, Linden avers that the trial court erred by not awarding damages to Linden. Because Linden failed to prove that (1) its nonperformance was excused, and (2) it suffered damages as a result of Zenith’s breaches, we affirm the trial court. I In May 2013, Tribach Partners, LLC acquired a piece of real property at 13524 Linden Ave N., in Seattle, Washington. Christopher Chen, a governor of Tribach, intended for the development of the property to be used to create an No. 81490-7-I/2 opportunity for Chinese nationals to obtain legal permanent residency in the United States through the EB-5 program, which allows foreign nationals to obtain legal permanent residency by investing in American companies. See EB-5 Immigrant Investor Program, U.S. CITIZENSHIP & IMMIGR. SERVS., https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5- immigrant-investor-program [https://perma.cc/EEH6-VBNF]. In October 2014, Chen, David Bovée of Zenith, and Stuart Brown of Village Concepts, LLC signed a letter expressing their intent to put together a team to construct an assisted living facility on the property utilizing EB-5 funding. In 2015, Qiang “John” Tu, Bovée, and Chen formed Linden. Linden then acquired the property. Zenith began providing Linden with project development reports (PDRs) in November 2015. Linden and Zenith entered into a Development Services Agreement (DSA), effective August 1, 2016, which detailed the relationship between Linden and Zenith for developing the project. Bovée played a major role in both organizations—he both served as general manager of Linden and was the sole owner and president of Zenith. This dispute arises from the DSA. The DSA describes the services Zenith would provide as follows: 2. Scope of Services. During the term of this Agreement, Developer shall provide its respective expertise, and undertake the performance of the development services reasonably requested by Owner from time to time with respect to the Property and Project, including the following: (a) Oversight of the development of the Project at the Property and oversight and preparation of feasibility and market studies to determine the overall best use and senior housing mix for the Project; 2 No. 81490-7-I/3 (b) Obtain all necessary entitlements for the Project and coordinate with all necessary governmental and similar officials and individuals; (c) Obtain or cause to be obtained any and all required permits and licenses (to operate the Project as an assisted living or memory care facility or otherwise) from the City of Seattle and the State of Washington (or other governmental bodies or agencies), generally based on the …
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