Opinion
No. 27322-9-III.
May 14, 2009.
Appeal from a judgment of the Superior Court for Franklin County, No. 07-2-50411-0, Walter R. Brown, J. Pro Tem., entered Jun e 20, 2008.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Sweeney and Brown, JJ.
UNPUBLISHED OPINION
Craig Mason entered into an agreement by which he gave up his tenured position at Columbia Basin College (CBC) in exchange for $140,000. He later sued CBC for $4,000,000, claiming that it had breached the separation contract by taking disciplinary actions against other teachers at the school. Finding no such provision in the contract, the trial court dismissed the action. We agree that the fully integrated contract did not address other teachers and that Mr. Mason cannot bring suit for breach of the alleged term. We affirm.
FACTS
Mr. Mason was employed by Columbia Basin College between 1988 and 2003 as a tenured professor and also served in various administrative positions. He also was a faculty union leader. Following what he perceived as "ethical issues" and tortious misconduct by college administrators, Mr. Mason decided to leave the school and negotiated his resignation. On October 24, 2003, he signed an agreement giving up his tenure and terminating his employment in exchange for $140,000.
Mr. Mason obtained a law degree during his tenure at the college.
The separation agreement expressly stated that Mr. Mason released any legal claims he may have had against CBC. The contract also contained two integration clauses stating that the agreement constituted the entirety of the understanding of the parties and that the document superseded any earlier discussions or oral agreements of any kind. It also required that any modification of the contract had to be agreed upon in writing by both parties. Clerk's Papers (CP) 538-539, 541.
Nearly four years later, on May 3, 2007, Mr. Mason pro se filed a lawsuit against CBC, alleging he was entitled to $4,000,000 in damages due to breach of contract, intentional infliction of distress, negligent misrepresentation, and fraud relating to the contract. The allegations arose after CBC allegedly took disciplinary or adverse employment action against three faculty members who were former colleagues of Mr. Mason.
CBC sent Mr. Mason a mitigation letter stating the claims were frivolous and allowing him to dismiss the suit. He did not. CBC, on March 24, 2008, moved for summary judgment and requested attorney fees and costs under RCW 4.84.185 and sanctions under CR 11. Mr. Mason filed a response to the motion and also moved for a continuance to conduct discovery, arguing that he had been too busy teaching and preparing for another trial to prepare for trial in this case. CBC in turn moved to strike portions of the response.
The trial court struck exhibit B to the response and denied the motion for a continuance. The court also granted summary judgment, reasoning that the separation agreement released all claims Mr. Mason might have. The court also found the litigation frivolous under RCW 4.84.185 and imposed costs and attorney fees under that statute. The court declined to grant sanctions under CR 11. Mr. Mason then appealed to this court.
ANALYSIS
The primary question is whether Mr. Mason has standing to complain about the school's actions against other teachers. There is no provision in the separation agreement that concerns those teachers and Mr. Mason's effort to add such a term fails. He also lacks standing as a third party to bring an action concerning those matters. The trial court thus properly granted summary judgment. The court also did not abuse its discretion in denying the requested continuance and did not err in striking the unauthenticated document.
This court reviews a summary judgment de novo, performing the same inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the light most favorable to the nonmoving party. Id. If there is no genuine issue of material fact, summary judgment will be granted if the moving party is entitled to judgment as a matter of law. Id.
The moving party bears the initial burden of establishing that it is entitled to judgment because there are no disputed issues of material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). If a defendant makes that initial showing, then the burden shifts to the plaintiff to establish there is a genuine issue for the trier of fact. Id. at 225-226. The plaintiff may not rely on speculation or having its own affidavits accepted at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Instead, it must put forth evidence showing the existence of a triable issue. Id. Separation Agreement. Mr. Mason contends that the school agreed to protect the other teachers as part of its agreement with him. The separation contract contains no provisions that mention the other teachers. In his deposition, Mr. Mason states that he discussed the issue with CBC President Thornton prior to signing the agreement. CP 487. He also testified in the deposition, and argues in his briefing, that the agreement occurred after the separation contract was signed in exchange for a promise not to revoke the settlement agreement. CP 487-490; Br. of Appellant at 14, 36. He argues that the court should consider extrinsic evidence on this topic under the "context rule" of Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990). Berg and its progeny do not help Mr. Mason's argument.
Berg involved a 99-year ground lease with varying rental rates and varying possible interpretations of those rates. The court took advantage of the opportunity to explain when extrinsic evidence could be considered in relation to contracts. Id. at 667. Extrinsic evidence is always available as an interpretive aide to establish what the parties intended. Id. It is not limited to situations where contract language is ambiguous. Id. at 669. The court distinguished the issue of contract interpretation from that of contract integration. Id. at 670. In the latter circumstance, the question is whether the contract is a complete statement of the entirety of the parties' agreement ( i.e., integrated), or if it is only a statement of part of the parties' agreement ( i.e., partially integrated). Id. With respect to matters of integration, the parol evidence rule still applies.
[P]arol or extrinsic evidence is not admissible to add to, subtract from, vary, or contradict written instruments which are contractual in nature and which are valid, complete, unambiguous, and not affected by accident, fraud, or mistake.
Id. (quoting St. Yves v. Mid State Bank, 111 Wn.2d 374, 377, 757 P.2d 1384 (1988) (internal quotation marks omitted)).
Berg thus adhered to the parol evidence rule in cases of completely integrated contracts. 115 Wn.2d at 670. With respect to partially integrated agreements, extrinsic evidence is permitted to prove additional terms as long as those terms are not inconsistent with the written terms. Id.
Mr. Mason's invocation of Berg's "context rule" suggests that he is asking us to interpret the separation agreement. Id. at 667-669. However, there is nothing in the agreement that we can possibly interpret to include protection of the three named teachers as a condition of the separation agreement. Indeed, Mr. Mason does not point to any provision and claim that it means other teachers were protected. The true question, then, is one of integration because Mr. Mason is actually arguing that there is an additional term that is not included in the separation agreement.
Mr. Mason repeatedly states that the contract is partially integrated, but he produces no evidence in support of that position except his own vague statements. More is required. Seven Gables, 106 Wn.2d at 13. On its face, this contract is totally integrated, and twice states that fact. Thus, the parol evidence rule prohibits introduction here of evidence that would add a term to a complete contract. Berg, 115 Wn.2d at 670.
Mr. Mason contends that interpreting the contract in this manner authorizes CBC to commit torts. That is incorrect. The tort victim still has the opportunity to proceed against the tortfeasor. It is simply Mr. Mason who has no basis to sue CBC (or anyone else) for tortious actions it committed against someone else. Only the third-party beneficiary of a contract can sue for the harm done to another. Burke Thomas, Inc. v. Int'l Org. of Masters, Mates Pilots, 92 Wn.2d 762, 767-768, 600 P.2d 1282 (1979).
Mr. Mason was not a named beneficiary of any contract that CBC had with the other teachers; likewise, they were not beneficiaries of Mr. Mason's separation agreement with CBC. In neither circumstance could Mr. Mason sue for actions taken by CBC against those teachers.
The trial court correctly determined that the contract did not convey standing to sue for alleged wrongs done to third persons. Summary judgment was properly granted.
Continuance. Mr. Mason also claims the trial court erred in failing to grant him a continuance to conduct discovery. A trial court has broad discretion to grant or deny a continuance; the court's decision will only be overturned for manifest abuse of discretion. Coggle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A trial court may deny a CR 56(f) motion for a continuance when "(1) the requesting party does not have a good reason for the delay in obtaining the evidence, (2) the requesting party does not indicate what evidence would be established by further discovery, or (3) the new evidence would not raise a genuine issue of fact." Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671, review denied, 150 Wn.2d 1017 (2003).
This lawsuit was filed May 3, 2007. The trial court set a discovery deadline of January 11, 2008. Mr. Mason obtained an extension of that deadline until July 30, 2008.
He undertook no discovery during that time period. He sought to extend the deadline once more when CBC filed its motion for summary judgment. The trial judge concluded that no good reason had been shown for further delay and there was no statement of what evidence would be obtained or how it would create a genuine issue of material fact. CP 601-602. The trial court considered the proper standard and found Mr. Mason's motion lacking. It certainly had a tenable basis for denying the continuance.
The court did not abuse its discretion in denying a further extension for discovery.
Striking Exhibit B. Mr. Mason also argues that the trial court erred when it struck exhibit B to his declaration in opposition to the motion for summary judgment. The court struck the exhibit, on motion of CBC, because it was not an affidavit and did not meet the requirements for a declaration. CP 603-604.
CR 56(e) has express requirements for evidence considered at summary judgment. The information must be admissible in evidence and based on personal knowledge. "Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Id. The challenged exhibit did not meet those requirements. It was a copy of a letter Mr. Mason received from another CBC teacher. He argues that the letter was not hearsay because it was offered to show what Mr. Mason knew. While that may be true, it is beside the point. The question is whether the document was properly authenticated. It was not.
The trial court did not err in striking exhibit B. CR 56(e).
Frivolous Litigation. The trial court found the lawsuit was frivolous under RCW 4.84.185 and imposed costs and attorney fees. A trial court has discretion under RCW 4.84.185 both to impose sanctions for frivolous litigation and to determine the amount of reasonable attorney fees. Fluke Capital Mgmt. Servs. Co. v. Richmond, 106 Wn.2d 614, 625, 724 P.2d 356 (1986); Zink v. City of Mesa, 137 Wn. App. 271, 277, 152 P.3d 1044 (2007), review denied, 162 Wn.2d 1014 (2008).
Here, the trial court explained that it was granting sanctions because the action was without foundation in law or fact, and "because you promised not to sue them and it was a final release of all claims, I am granting sanctions and terms." CP 644. These were tenable grounds for sanctioning Mr. Mason for frivolous litigation. He had signed a release of claims and promised not to sue, and then did so. He also did not make efforts to advance the litigation or attempt to prove his claims.
The trial court did not abuse its discretion in finding the action frivolous.
Sanctions on Appeal. CBC asks this court to impose further sanction against Mr. Mason for appealing this frivolous action. We decline to do so. While the entire appeal was without merit, it was not entirely frivolous. As prevailing party, CBC is entitled to its costs on appeal. RAP 14.2.
The judgment of the trial court is affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY and BROWN, JJ., concur.