Opinion
No. 56676-8-I.
July 3, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-30428-8, Michael Heavey, J., entered July 29, 2005.
Counsel for Appellant(s), James Walter Beck, Gordon Thomas Honeywell, PO Box 1157, 1201 Pacific Ave, Tacoma, WA 98401-1157.
Thomas Brian Vertetis, Gordon Thomas Honeywell, 1201 Pacific Ave Ste 2100, PO Box 1157, Tacoma, WA 98401-1157.
Counsel for Respondent(s), James J. Jr Dore, Attorney at Law, 1122 W James St, Kent, WA 98032-8729.
Philip N. Petersen, Petersen Law, 5611 76th St W Ste a, Lakewood, WA 98499-8650.
Affirmed by unpublished per curiam opinion.
For many years, appellants Fred Krapf, Gladys Krapf, and Mountain View Dairy (collectively Mountain View) purchased dairy cattle feed from respondent White River Feed Company (White River). When Mountain View's outstanding account became excessive, White River filed this action. Mountain View raised various counterclaims. Because there is no material factual dispute that Mountain View manifested its assent to the amount due under the doctrine of account stated, the trial court properly granted White River's motion for summary judgment and dismissed Mountain View's counterclaims. We therefore affirm.
FACTS
Viewed in the light most favorable to Mountain View, the materials before the trial court on summary judgment established the following facts. During the relevant time period, Mountain View was a closely held corporation that operated a dairy farm. Starting in the 1960s, Mountain View purchased its feed from the White River Feed Company. Fred Krapf operated Mountain View until November 2001, when he suffered a stroke. Following Krapf's stroke, Krapf's wife and children operated the dairy.
Generally, Mountain View would order feed from White River as needed. Upon delivery, White River provided an invoice, payable within 30 days, for the amount due, based on the weight of the feed. For purposes of this appeal, Mountain View does not dispute White River's claim that between December 2002 and November 2003, Mountain View requested — and White River delivered — about 60 loads of feed. Mountain View's cows consumed all of the feed. During this same period, Mountain View made about 40 payments. By November 2003, White River had demanded payment for the outstanding balance and required Mountain View to pay for feed orders upon delivery. Under the terms of the new arrangement, Mountain View would place an order and pay by check at the time of delivery.
On March 18, 2004, White River filed this action for payment of the unpaid balance. In its answer, Mountain View raised various counterclaims, including breach of contract, fraud, and violations of the Consumer Protection Act. White River eventually moved for summary judgment on the theory of account stated. Noting the existence of 60 deliveries and 40 payments during the relevant period and the absence of any objections or attempt to negotiate the outstanding balance, the trial court granted White River's motion and dismissed Mountain View's counterclaims. The court then entered a judgment totaling $330,935.65, including interest, in White River's favor.
DECISION
On appeal, Mountain View first contends there are disputed factual issues regarding the quality and quantity of White River's feed and the nature of Mountain View's objections that preclude application of an account stated on summary judgment. Washington courts follow the definition of account stated set forth in Restatement (Second) of Contracts sec. 282(1) (1981):
An account stated is a manifestation of assent by debtor and creditor to a stated sum as an accurate computation of an amount due the creditor. See Sunnyside Valley Irrigation Dist. v. Roza Irrigation Dist., 124 Wn.2d 312, 315, 877 P.2d 1283 (1994).
An account stated does not require an express mutual agreement by the parties to settle the account. Sunnyside, 124 Wn.2d at 317. Rather, one of the purposes of the doctrine is to permit the court to impute an agreement even in the absence of an explicit agreement about the amount. Sunnyside, 124 Wn.2d at 317. `A party's retention without objection for an unreasonably long time of a statement of account rendered by the other party is a manifestation of assent.' Sunnyside, 124 Wn.2d at 315 (quoting Restatement (Second) of Contracts sec. 282(1) (1981)); see also Parrott Mech., Inc. v. Rude, 118 Wn. App. 859, 866, 78 P.3d 1026 (2003).
In this case, there is no dispute that over the relevant period, White River delivered 60 loads of feed — along with invoices — to Mountain View. During this same period, Mountain View made at least 40 payments. There is no evidence in the record that Mountain View objected to or refused any specific delivery, that it protested any specific payment, or that it ever requested any adjustment to the amount owed. Indeed, White River continued to use Mountain View as its sole supplier and continued to order feed after White River demanded payment of the outstanding balance and required that all further orders be paid upon delivery.
Mountain View asserts that an account stated was not established for purposes of summary judgment because it timely objected to both the quality and quantity of the feed delivered. In particular, Mountain View points to the declarations and deposition testimony of Michael Krapf about his work at Mountain View from November 2000 to February 2004. Krapf stated that during this period: (1) he found various items of debris in the grain that White River delivered; (2) he noticed `discrepancies' in the amount and quality of feed delivered; (3) it `seemed' like White River's deliveries were `maybe too small'; and (4) he had `doubts in the back of my mind' that `something wasn't working right.' Krapf also testified that he would `sometimes' complain to the White River driver. But Krapf failed to identify any specific deficiency with the quality or quantity of the feed itself. Nor did he identify any objection raised in connection with the invoices or payments.
The testimony offered by Kevin Mulder was also unavailing. In his deposition, Mulder testified that he became the Mountain View dairy manager in February 2004 and that when he first visited the dairy, he noticed an `indication of some lower quality feed stuffs' and that the condition of the cows was `below par,' which he attributed to `[p]oor feed.' But Mulder first visited Mountain View on January 23, 2004. There is no evidence that he had any personal knowledge of the quality or quantity of the earlier feed deliveries at issue here.
To support its claim that there were `discrepancies' regarding the quantity and quality of the grain delivered, Mountain View relies primarily on generalized and undated assertions that the dairy would occasionally run out of grain and that the cows were producing less milk than normal. Mountain View also suggests that the White River delivery trucks had `cracked and leaking bins, which could explain, in part, the disparity between the weight tickets and the actual grain delivered.' But Mountain View relies solely on the depositions of two White River delivery truck drivers who recalled an occasional leaking bin on the delivery trucks, but asserted that it would be repaired immediately. Neither driver provided any support for Mountain View's suggestion that White River made some of the disputed deliveries with leaking trucks.
Finally, Mountain View relies on the declaration of Richard Monk, a former owner of White River. Monk stated that `on a few occasions,' Mountain View had complained about the quality of the feed delivered. But Monk had no involvement with White River after December 1, 2000. Consequently, his testimony provides no support for Mountain View's assertion that it objected to deliveries in 2002 and 2003.
Viewed in the light most favorable to Mountain View, the foregoing circumstances establish, at best, that Mountain View employees may have expressed some concerns about the quality or quantity of unspecified White River deliveries. But the mere expression of such concerns, unaccompanied by any objection to the invoices or payments themselves, is insufficient to create a material factual dispute as to an account stated. See Sunnyside, 124 Wn.2d at 317. Although the mere fact of payment — without more — does not establish an account stated as a matter of law, `payment, together with a failure to objectively manifest either protest or an intent to negotiate the sum at some future time, does establish an account stated.' Sunnyside, 124 Wn.2d at 316-17 n. 1. The trial court did not err in entering summary judgment on the theory of account stated.
Mountain View also relies heavily on Santora McKay v. Mazzella, 182 A.D.2d 572, 582 N.Y.S.2d 431 (1992), and Merritt v. Meisenheimer, 84 Wash. 174, 146 P. 370 (1915). But both cases are readily distinguishable. In Santora McKay, a one paragraph decision, the plaintiff had voluntarily and without explanation reduced the amount allegedly owed, creating a factual question as to the validity of the disputed charges. In Merritt, a dispute over attorney fees, the client objected when the attorney demanded payment of the outstanding balance. Mountain View raised no comparable objection in this case.
Mountain View next contends that summary judgment was improper because of outstanding factual issues of fraud involving White River's feed deliveries. The fraud claim rests on allegations that White River unilaterally, and without notice, reduced the quality of the grain that it delivered. But Mountain View fails to address the necessary elements of a fraud claim, much less demonstrate a material factual issue as to each of the elements. See Farrell v. Score, 67 Wn.2d 957, 958-59, 411 P.2d 146 (1966). The trial court properly dismissed Mountain View's fraud claim on summary judgment.
Mountain View next contends that an account stated was not established because the parties did not agree on the amount due. Mountain View asserts that three payment checks totaling $53,413.36 were not credited to the outstanding balance. But White River submitted evidence clearly establishing that the three checks were fully credited to Mountain View's account. Mountain View has not addressed that evidence or challenged its accuracy.
Mountain View next contends that it is entitled to an off-set under the Uniform Commercial Code for non-conforming goods. See generally, Kysar v. Lambert, 76 Wn. App. 470, 887 P.2d 431, review denied, 126 Wn.2d 1019 (1995). But for the reasons set forth above, Mountain View has failed to demonstrate any factual issue as to whether White River delivered nonconforming goods.
Finally, Mountain View contends the trial court erred in refusing to enforce an earlier order requiring White River to reimburse Fred and Gladys Krapf for costs associated with the wrongful freezing of the assets in their personal bank account. The original trial judge had issued the order on January 4, 2005, after White River obtained a writ of attachment. The original trial judge later recused himself from the case. On June 29, 2005, one month before the summary judgment hearing, Mountain View filed a motion seeking a determination of the costs associated with the alleged wrongful attachment.
Mountain View's assignment of error is based on the assertion that the trial court's order effectively vacated the earlier order. But Mountain View has not cited any authority supporting this contention. The challenged order merely denied Mountain View's motion at a particular point during the proceedings, prior to the resolution of the pending summary judgment motion. It should also be noted that White River's motion for discretionary review of at least a portion of the earlier order was pending in the Court of Appeals. Mountain View has failed to demonstrate any error in the trial court's decision.
Affirmed.
AGID, GROSSE, and BAKER, JJ.