Opinion
No. 60813-4-I.
December 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-2-11078-0, Steven C. Gonzalez, J., entered October 8, 2007.
Affirmed by unpublished per curiam opinion.
Plaintiff David Krahn appeals an order granting summary judgment against him and dismissing his claim for breach of contract involving his purchase of an airplane. He contends that the trial court erred because there is a genuine issue of fact about whether the contract for the sale of the airplane required the plane to be airworthy. The seller contends that an airworthiness requirement was not a part of the contract and cross-appeals the court's denial of costs and attorney fees. Based on the facts submitted, we affirm the court's finding that the contract contained no airworthiness requirement and hold that the court did not abuse its discretion in not awarding sanctions and attorney fees. We also deny the seller's requests for sanctions and attorney fees on appeal.
FACTS
In 2002, David Krahn entered into a contract to purchase a 1968 Piper airplane from Hugh Glassburn. The three page contract contained a provision stating that "[a]n Annual Inspection, as well as repair to the autopilot[,] are both conditions of sale." There is no dispute that a Federal Aviation Administration (FAA) certified mechanic repaired the autopilot and performed the annual inspection. The contract also stated that the plane would be "DELIVERED IN 'AS IS' CONDITION, AND WITH ALL FAULTS" and in the following provision stated that the "BUYER HEREBY WAIVES, ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES . . . WHATSOEVER, EXPRESS OR IMPLIED . . . INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR USE OR ANY PARTICULAR PURPOSE." While the contract contained a clause that Krahn was to conduct a pre-purchase inspection, he failed to do so. But after completion of the sale, Krahn hired a mechanic who determined that the plane was not airworthy and would not pass an annual inspection.
The mechanic's explanation for why he found the plane to fail airworthiness requirements is somewhat vague: "A Mr. Glassburn flew the plan [sic] to Thun Field (now Pierce County Airport), although the plane's lots [sic] showed that many airworthiness directives weren't complied with on that plane. Frankly, it was unsafe to fly at that time."
In April 2007, Krahn filed a complaint alleging that Glassburn (1) engaged in selling the aircraft when not licensed or bonded, (2) violated the Washington Consumer Protection Act, chapter 19.86 RCW, by making misrepresentations about the aircraft, and (3) breached the aircraft purchase agreement by fraudulently misrepresenting the aircraft's airworthiness. Glassburn moved for summary judgment; Krahn then stipulated to the dismissal of the first two claims. The trial court found these two claims frivolous and meritless, awarding Glassburn costs and attorney fees. The trial court then dismissed the breach of contract claim. Krahn appeals the dismissal of the breach of contract claim, and Glassburn cross-appeals the court's finding that the breach of contract claim was not meritless.
DISCUSSION
We review summary judgment orders de novo, engaging in the same inquiry as the trial court. The court must construe the facts and all reasonable inferences in the light most favorable to the nonmoving party. The nonmoving party must provide facts, not merely allegations, demonstrating a genuine issue of material fact. The reviewing court will affirm a summary judgment motion if there is no genuine issue as to any material fact — if reasonable persons could reach but one conclusion — and the moving party is entitled to a judgment as a matter of law.
Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).
Vasquez v. Hawthorne, 145 Wn.2d 103, 106, 33 P.3d 735 (2001).
Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
CR 56(c), Vasquez, 145 Wn.2d at 106.
Breach of Contract
Krahn contends that the trial court erred by dismissing his breach of contract claim on summary judgment because there is a genuine issue of material fact about whether the contract of sale required that the plane be airworthy. He claims that by requiring an annual inspection, the contract necessarily required that the plane be airworthy. Glassburn argues that the contract did not contain an express warranty of airworthiness and all implied warranties were waived by the "as is" clause. We find Krahn's argument unpersuasive and hold that the contract did not contain an airworthiness requirement.
The central issue here is one of interpretation: is the performance of an annual inspection synonymous to finding a plane airworthy? Because Washington uses the objective theory of contract, we interpret contracts as would an average person, without applying strained or forced meaning. We prefer interpreting terms practically and reasonably, rather than literally.
Eurick v. Pemco Ins. Co., 108 Wn.2d 338, 341, 738 P.2d 251 (1987).
Morgan v. Prudential Ins. Co., 86 Wn.2d 432, 434, 545 P.2d 1193 (1976).
Krahn argues that his interpretation is reasonable because a "rote inspection . . . irrespective of what the inspection showed" is useless since a plane that is unsafe to fly "cannot be used for its intended purpose." Thus, Krahn's argument assumes that the purpose of the sale was to purchase an airworthy airplane. But no evidence suggests this was the purpose of the contract. Indeed, a buyer may also purchase a plane simply for its parts or to restore and resell. And here, the contract did not contain an express statement that the plane would be used for flying purposes.
While we must view reasonable inferences in the light most favorable to Krahn, we cannot rest our decision on mere opinions and allegations. Krahn's personal, unexpressed intention that the plane be airworthy has no weight in ascertaining what the parties meant by the annual inspection requirement. And beyond Krahn's opinion or unexpressed intention, there is no evidence suggesting "annual inspection" meant "airworthy." Nor are we convinced that a reasonable person would interpret "annual inspection" to mean "airworthy." The practical, reasonable interpretation of an "annual inspection" requirement is that a plane must be inspected annually, not that the inspection results in a particular finding. If the parties intended that a condition of the contract was that the plane pass an annual inspection or be airworthy, they should have said so.
Chen v. State, 86 Wn. App. 183, 191, 937 P.2d 612, review denied, 133 Wn.2d 1020 (1997).
Weimerskirch v. Leander, 52 Wn. App. 807, 813, 764 P.2d 663 (1988).
Krahn argues that because the contract term at issue here is a technical term or word of art, we must defer to the technical meaning rather than an average person's interpretation. Krahn points to his mechanic's statement that "annual inspection" means "airworthy" within the trade. But, in the same statement, the mechanic also said that he can perform and release a plane from an annual inspection even when it fails to be airworthy, provided he tells the owner that the plane is not airworthy. Thus, the evidence upon which Krahn relies does not support his argument; rather, the mechanic's statement establishes that an annual inspection need not necessarily result in a finding of airworthiness because an annual inspection can be performed and a plane can be released without that finding. Likewise, the finding of the FAA certified mechanic who certified that the annual inspection determined the plane to be airworthy is not sufficient to establish that performance of an annual inspection necessarily requires a determination that the plane is airworthy.
See Blue Mountain Mem'l Gardens v. Dep't of Licensing, 94 Wn. App. 38, 43, 971 P.2d 75, review denied, 138 Wn.2d 1011 (1999).
Nor has Krahn established a basis for relief for breach of implied warranty of fitness. To successfully disclaim an implied warranty of fitness, the exclusion must be in writing and conspicuous, be negotiated or bargained for, and state "with particularity the qualities and characteristics being disclaimed." Here, the three page agreement contained an "as is" clause, which explicitly waived the implied warranty of fitness. Because the contract unambiguously states that any implied warranty of fitness is disclaimed and Krahn does not argue that this term was not negotiated or bargained for, the implied warranty was effectively disclaimed.
Hartwig Farms, Inc. v. Pac. Gamble Robinson Co., 28 Wn. App. 539, 542, 625 P.2d 171 (1981).
Attorney Fees
Glassburn cross-appeals the court's refusal to impose sanctions and award attorney fees against Krahn, claiming that the breach of contract claim is frivolous. Glassburn also requests attorney fees on appeal. We review the trial court's denial of fees under RCW 4.84.185 and sanctions under CR 11 for an abuse of discretion, determining whether the trial court was manifestly unreasonable or based its decision on untenable grounds.
Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 338-39, 858 P.2d 1054 (1993).
Under CR 11, an attorney may only bring a claim if it is well grounded in fact, is supported by existing law (or a good faith argument for a change in the law), is not brought for an improper purpose, and if the denials of contentions are based on evidence or reasonably based on a lack of information or belief. If the claim is found to be frivolous, the trial court may award attorney fees to the opposing party under RCW 4.84.185. Under RAP 18.9(a), an appellate court may impose sanctions and attorney fees for a frivolous appeal. An action is frivolous if it "cannot be supported by any rational argument on the law or facts," and an appeal is frivolous if it "presents no debatable issues upon which reasonable minds might differ and is so devoid of merit that there is no possibility of reversal."
Layne v. Hyde, 54 Wn. App. 125, 135, 773 P.2d 83, review denied, 113 Wn.2d 1016 (1989).
We affirm the trial court's finding that Glassburn is not entitled to attorney fees. "To draw the conclusion that at the time the complaint was filed it was not warranted by existing law" is not justified here where further inquiry throughout the discovery process may have resulted in a finding that "annual inspection" typically requires a finding of "airworthiness." And while we hold on appeal that Krahn's claim lacked a genuine issue of material fact, he did bring forth some evidence — namely, his mechanic's affidavit — supporting his claim.
Lockhart v. Greive, 66 Wn. App. 735, 745, 834 P.2d 64 (1992).
Therefore, we affirm the summary judgment order and denial of attorney fees and deny the request for sanctions and attorney fees on appeal.
For the Court: