Opinion
No. 54763-1-I.
May 8, 2006.
Appeal from a judgment of the Superior Court for King County, No. 02-2-00636-1, Michael S. Spearman, J., entered July 16, 2004.
Counsel for Appellant(s), Edward Paul Jr Weigelt, Attorney at Law, PO Box 2299, Lynnwood, WA 98036-2299.
Counsel for Respondent(s), John Eugene Glowney, Attorney at Law, 600 University St Fl 36, Seattle, WA 98101-1176.
Affirmed by unpublished per curiam opinion.
Waterkist Corporation, which operates under the name `Nautilus Foods,' appeals the trial court's finding of fact that Nautilus Foods and Smoki Foods did not reach a meeting of the minds on an alleged contract for a joint venture that obligated Smoki to share its profits with Nautilus. We affirm.
Substantial evidence supports the trial court's conclusion that when an agent for Smoki agreed to take and process fish from one of Nautilus's tenders in the Prince William Sound, the agent understood the agreement to be for the purchase of fish, not for a joint venture. The finding, which is supported by substantial evidence that the parties lacked the necessary mutual assent, supports the ruling that Waterkist did not prove the creation of a joint venture.
FACTS
Waterkist Corporation is an Alaskan corporation that has a plant in Valdez, Alaska for processing fish. In the spring of 2000, the plant suffered severe weather damage. Nautilus expected to finish its repairs to the plant and have it back in operation after the start of the 2000 salmon season. Until then, the plant could not process fish.
In 2000, Nautilus had four tenders under contract for the 2000 fishing season. To ensure the availability of the tenders when its plant opened, Nautilus arranged for the tenders to supply their fish catches to other fish processors.
Smoki Foods, a Washington corporation, had chartered a processing boat, the Aurous, for the 2000 fishing season. In May 2000, Tom Waterer, the president of Nautilus, spoke with Rodger May, who acted on behalf of the Aurous. May orally agreed on behalf of Smoki that the Aurous would accept fish from the ship, Vanguard, which was a tender boat under contract with Nautilus. Waterer sent a handwritten document to May by fax, but evidence subsequently produced at trial did not demonstrate that May received the fax or that Waterer took further action to obtain a signature on the document or otherwise procure a written contract. The Aurous processed fish from the Vanguard from the middle of May to the middle of June.
Waterkist subsequently brought suit against Smoki. The trial court ruled that Waterkist failed to establish that Nautilus and Smoki had created a joint venture. The court found that May and Waterer did not reach a meeting of the minds on the alleged agreement and found that May's intent was to help Nautilus and obtain fish for the Aurous. The court further ruled that Nautilus was not entitled to an accounting. Waterkist appeals.
ANALYSIS
A trial court's factual finding will be sustained on appeal if the finding is supported by substantial evidence. Sandler v. U.S. Dev. Co., 44 Wn. App. 98, 103, 721 P.2d 532 (1986). When the trial court has weighed evidence, `this court's review is limited to determining whether the trial court's findings are supported by substantial evidence and, if so, whether the findings, in turn, support the conclusions of law and the judgment.' Washington Belt Drive Sys., Inc. v. Active Erectors, 54 Wn. App. 612, 616, 774 P.2d 1250 (1989). Waterkist contends that the trial court erroneously relied upon testimony by May based upon his subjective intent and his memory. Waterkist argues that Washington instead follows an objective manifestation standard for determining whether parties have entered a contract and that the evidence before the trial court objectively manifested a contract between the parties. We disagree.
To prove the existence of a contract, whether express or implied, the party asserting the contract must show that the parties agreed to each essential fact, including mutual assent. Cahn v. Foster Marshall, Inc., 33 Wn. App. 838, 840, 658 P.2d 42 (1983). Here, substantial evidence supports the finding that the parties did not mutually assent to a joint venture, but instead arranged for Smoki to buy fish from Nautilus's tender. May testified that to the best of his recollection, he told Waterer that Smoki would be buying fish at the Aurous and that if Waterer `wanted the tender to have a job and bring us fish at the fair price, which is what happened, we welcomed the fish and [would] do the best to accommodate everybody we could.' Verbatim Report of Proceedings (VRP) (Feb. 4, 2004) at 78. May also testified that to the best of his recollection, `we were helping each other out. He was without a plant; we had a plant. And our plant could do very limited processing, and our goals were to buy Copper River sockeye.' VRP (Feb. 4, 2004) at 78-79. Furthermore, Waterer testified that while Nautilus provided funding on a weekly basis for Smoki to pay the tender, Smoki reimbursed Nautilus once Nautilus sent an invoice. We recognize that other evidence cited by Waterkist would indicate a joint venture between Nautilus and Smoki. But the role of this court is to determine whether substantial evidence supports challenged findings of fact and whether the findings support the trial court's conclusions of law. Org. to Pres. Agric. Lands v. Adams County, 128 Wn.2d 869, 882, 913 P.2d 793 (1996). A trial court has the responsibility of determining disputed facts by weighing the credibility of witnesses' testimony. Johnson v. Dep't of Licensing, 71 Wn. App. 326, 332, 858 P.2d 1112 (1993). An appellate court is not entitled to weigh evidence or the credibility of witnesses. In re Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973). Waterkist's primary evidence for a joint venture contract was the handwritten letter prepared by Waterer after his conversation with May. While Waterer testified that he faxed the letter to Waterer, there was no evidence that May received the letter or that May signed the letter or agreed to the terms. Substantial evidence therefore supported the ruling that Nautilus and Smoki did not share a mutual intent to enter a contract for a joint venture. The finding that the parties lacked the mutual assent supports the ruling that a joint venture was not created and that Nautilus was not entitled to an accounting.
Affirmed.
COLEMAN, DWYER and SCHINDLER, JJ.