Opinion
No. 37777-2-II.
April 28, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 05-2-01312-1, Dave Edwards, J., entered May 12, 2008.
Reversed and remanded by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
The trial court granted Masco Petroleum's motion for summary judgment, finding that no genuine issue of material fact existed in deciding whether Jasmel Sangha, president of Harbor Cascade, Inc., agreed to personally guarantee a contract for services with Masco. Sangha now appeals arguing that a genuine issue of material fact remains because reasonable minds could draw differing conclusions from the presence of his cursive signature in the Agreement and Terms section versus the absence of his cursive signature in the Personal Guarantee section. We reverse the trial court's order for summary judgment and remand for further proceedings.
FACTS
On or about April 11, 2005, Sangha, president of Harbor Cascade sought to establish an account with Masco to acquire diesel fuel. Masco sent Sangha a written form contract with two sections. The first section, titled "Agreement and Terms" (Agreement), set forth Masco's account terms and requested Sangha's printed name, title, signature, and date. Clerk's Papers (CP) at 12, 72. The second section was a "Personal Guarantee" (Guarantee) that contained two parts. The first part said, "I/we ___ of ___ City of ___, County of ___, State of ___ guarantee faithful and complete performance of this written contract and guarantee payment of all damages, costs and expenses of which ___ may be liable with respect to this contract." CP at 12, 72. The second part of the Guarantee, like the Agreement, required Sangha's printed name, title, signature, and date.
The top of the contract instructed Sangha to "Sign Both Sections." CP at 12, 72. Sangha wrote his printed name, title, and cursive signature on the Agreement. He also wrote his name, city, county, and state in the first part of the Guarantee; however, he did not print his name on the "___ may be liable" portion. CP at 11. Further, Sangha only printed his name and title on the second part of the Guarantee, omitting his cursive signature.
Sangha, who owns three Wendy's franchises and a real estate holding company in addition to Harbor Cascade, testified that he did not wish to execute the Guarantee portion of the contract and was only "filling out a form." CP at 34, 35. Sangha did not cross out the written information in the Guarantee, did not include a notation on the Agreement and did not otherwise contact Masco to notify them that he was not personally guaranteeing the account. Sangha testified that he understands the nature of personal guarantees and believes that he has signed them before. Masco has a general policy of not extending credit to businesses without a personal guarantee.
In July, 2005, Harbor Cascade defaulted on its Masco account; Masco demanded payment for the total amount owed, $6,815.77. On March 3, 2008, Masco moved for summary judgment. On April 7, 2008, the trial court heard oral argument on the motion. About a month later, on May 12, 2008, the trial court granted Masco's motion for summary judgment, ordering Harbor Cascade, Sangha and his wife, Sasheel Sangha, to pay Masco $6,815.77, plus interest, attorney's fees and costs. The total judgment was $25,558.95.
The record and clerks papers do not contain any procedural history prior to Masco's 2008 motion for summary judgment.
Sangha now appeals.
ANALYSIS
Masco argues that no genuine issue of material fact remains because, as a matter of law, Sangha's printed name on the Guarantee manifests his intent to personally guarantee the Agreement. Sangha argues that the trial court erred in granting Masco summary judgment. He contends that a genuine issue of material fact remains, namely, that reasonable minds can draw differing conclusions from the presence of his cursive signature on the Agreement versus the absence of his cursive signature on the Guarantee. We agree with Sangha.
We review an appeal from summary judgment de novo, engaging in the same inquiry as the trial court. Segaline v. Dep't. of Labor and Indus., 144 Wn. App. 312, 322, 182 P.3d 480 (2008). "Summary judgment is appropriate only if 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Segaline, 144 Wn. App. at 322 (quoting CR 56(c)). We consider all facts and reasonable inferences drawn therefrom in a light most favorable to the non-moving party. Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989).
The sole issue is whether Masco and Sangha mutually assented to be bound by the Guarantee. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 699, 952 P.2d 590 (citing Yakima County (West Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 388, 858 P.2d 245 (1993)). Washington follows the objective manifestation theory of contracts, looking to the parties' objective manifestations of assent rather than the parties' unexpressed subjective intentions. Wilson Court Ltd. P'ship, 134 Wn.2d at 699; Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503-04, 115 P.3d 262 (2005); see also Dwelley v. Chesterfield, 88 Wn.2d 331, 335, 560 P.2d 353 (1977) (holding that "unexpressed impressions are meaningless when attempting to ascertain the mutual intentions of [the parties]"). A personal guarantee is a contract that is subject to these general rules regarding contract formation. Wilson Court Ltd. P'ship, 134 Wn.2d at 699. While mutual assent is ordinarily a question of fact, Sea-Van Invs. Assocs. v. Hamilton, 125 Wn.2d 120, 126, 881 P.2d 1035 (1994), a question of fact may be determined as a matter of law "when reasonable minds could reach but one conclusion." Ruff v. King County, 125 Wn.2d 697, 704, 887 P.2d 886 (1995) (quoting Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985)).
In this case, reasonable minds could differ on whether it is clear that Masco had a personal guarantee from Sangha. The top of the contract instructed Sangha to "Sign Both Sections," i.e., the Agreement and the Guarantee. CP at 12, 72. Sangha filled in all the information on the contract, affixing his cursive signature to the Agreement; however, his cursive signature is absent from the Guarantee. The legal effect of a signature lays in the parties' intention to use the mark to authenticate the writing. See RCW 62A.1-201(39) (defining "signed" as "any symbol executed or adopted by a party with present intention to authenticate a writing"). The absence of Sangha's signature in the Guarantee creates an ambiguity that raises a genuine issue of material fact, namely, whether Sangha objectively manifested an intent to be bound by the Guarantee.
In Washington, a prevailing party may recover attorney fees authorized by statute, equitable principles, or agreement between the parties. Wiley v. Rehak, 143 Wn.2d 339, 348, 20 P.3d 404 (2001) (citing Perkins Coie v. Williams, 84 Wn. App. 733, 742-43, 929 P.2d 1215 (1997)). We may grant attorney fees under RAP 18.1.
Masco requests attorney fees. The contract's Agreement states the following:
[c]ustomer agrees to pay any and all expenses incurred by Masco Petroleum (including fees for legal services of every kind) to collect, defend or assert the right of Masco Petroleum to obtain the payment of expenses and the indebtedness relating to this account.
CP at 11, 12, 72. Masco is not the prevailing party and is not entitled to reasonable attorney fees and costs on appeal in compliance with RAP 18.1. Reasonable attorney fees and costs should be assessed by the trial court upon conclusion of this matter.
We reverse the trial court's order for summary judgment and remand for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, and ARMSTRONG, JJ, concur.