Brown v. Garrett

• Decision Date: 08 July 2013
• Docket Number: No. 68095–1–I.,68095–1–I.
• Citation: 175 Wash.App. 357,306 P.3d 1014
• Parties: William S. BROWN and Julie C. Brown, husband and wife and their marital community, Appellants, v. Rod J. GARRETT d/b/a Best Auto Limited and Mark A. Thompson, d/b/a Best Auto, Respondents.
• Court: Washington Court of Appeals

175 Wash.App. 357

306 P.3d 1014

William S. BROWN and Julie C. Brown, husband and wife and their marital community, Appellants,

v.Rod J. GARRETT d/b/a Best Auto Limited and Mark A. Thompson, d/b/a Best Auto, Respondents.

No. 68095–1–I.

Court of Appeals of Washington, Division 1.

July 8, 2013.

Al Van Kampen, Nathan Paine, David Eldon Crowe, Rohde & Van Kampen PLLC, Seattle, WA, for Appellant(s).

Christopher J. Marston, Davies Pearson PC, Tacoma, WA, for Defendant(s)/ Respondent(s).

SCHINDLER, J.

[175 Wash.App. 360]¶ 1 William and Julie Brown filed a lawsuit in Parker County, Texas against Rod J. Garrett d/b/a Best Auto Limited and Mark A. Thompson d/b/a Best Auto (collectively Best Auto). The Browns obtained a judgment against Best Auto and filed it in King County Superior Court. Because the Texas court had jurisdiction over Best Auto under the long-arm statute, and Best Auto did not file a motion in the Texas court to enforce the forum selection clause in the “Vehicle Purchase Order,” we reverse the King County Superior Court order vacating the Texas judgment and quashing the writ of garnishment.

FACTS

¶ 2 Rod J. Garrett d/b/a Best Auto Limited and Mark A. Thompson d/b/a Best Auto (collectivelyBest Auto) own a used car business in Washington. In April 2008, Best Auto listed for sale on eBay a 2004 Mini Cooper with approximately 76,000 miles. The eBay advertisement states that Best Auto sells to purchasers in North and South America, Europe, and Australia. The advertisement describes the condition of the 2004 Mini Cooper as follows:

THIS CAR RUNS AS SMOOTH AS SILK.

...

In total, this is a clean, well cared for, smoke-free, great-driving MINI. I take great pride in the vehicles we sell and feel that you should know as much about the car as possible. Accordingly here is a list of the good and also things needing attention: All the glass is in great shape-no cracks or delam [ination] spots. Hop in, fire her up and this car starts instantly, even when cold. It idles, runs and drives as it should—strong oil pressure, strong battery and charging system, no overheating, no brake pull or alignment issues! I've driven it many miles over the past few weeks and freeway cruised at 75 MPH [ (miles per hour) ].

Please look again at the interior [pictures]. The dark grey leather upholstery is all-original with the pictures giving a very accurate view of its clean, soft condition. You'll feel comfortable sitting on these firm seats for hours and they can be adjusted for height as well as forward/back and, when needed, they're heated too! The electric window lifts and [air conditioning] system all work great. Push a button and roll back the large power moonroof for that open-air drive! ... The car is equipped with Dynamic Stability Control (DSC) operated by a dash switch that enables you to take corners on those twisty country roads at 90+ MPH! As you can probably guess from the photos, the original rubber factory mats have done a great job of protecting the clean carpets beneath. It is a bit difficult to tell from the photos, but I can see several body panels have had paintwork done sometime in the past. Don't know why as there's no history of accidents or other negatives, but my professional eye catches it on a close inspection all the same ... I have every confidence this MINI Cooper could easily be driven cross-country tomorrow.

We've sold many cars here on eBay over the past few years and the one thing I'm questioned about again and again is shipping. Because we're up in Washington State, at the Northwestern tip of the country, many Midwesterners and folks on the East Coast sometimes are reluctant to bid due to distance. DON'T BE CONCERNED! We ship cars out almost weekly and are happy to help arrange and/or work with the transporter of your choice. As outlined above, please contact me here at BEST AUTO with any questions or for suggestions. My name is Mark Thompson and my direct phone number is 206/914–1173. [A]nd, yes, it is for sale locally before this auction ends if you'd like to make an offer.

¶ 3 William and Julie Brown live in Aledo, Texas. The Browns read the eBay description of the Mini Cooper. At the time, the “[c]urrent bid” was listed as $10,000. On April 27, the Browns called Best Auto about the Mini Cooper. Best Auto agreed to sell the car directly to the Browns for $11,250. On April 27, the eBay advertisement states that “[t]he seller ended this listing early because the item is no longer available for sale.”

¶ 4 On April 28, the Browns sent $11,250 by wire transfer to Best Auto. Best Auto faxed a “Vehicle Purchase Order” to the Browns. The Vehicle Purchase Order states the odometer “reads 076,115 miles.” The Browns used a company recommended by Best Auto to ship the Mini Cooper from Washington to a shipment center in Mesquite, Texas.

¶ 5 On May 13, the Browns went to Mesquite to pick up the Mini Cooper. After inspecting the exterior of the car, the Browns called Best Auto about “several trim items.” Best Auto agreed to pay the cost to repair the trim items.

¶ 6 The Browns took possession of the Mini Cooper. Julie Brown drove the Mini Cooper. Less than 10 miles from the shipping center, Julie noticed the air conditioning was not working and the engine temperature gauge pointed to “HOT.” Julie immediately pulled over and called a tow truck. The tow truck operator took the car to the nearest authorized Mini Cooper dealership, Moritz Mini of North Arlington, Texas.

¶ 7 The Browns asked the mechanic at Moritz Mini to inspect the car, identify the cause of the problem, and provide an estimate. The mechanic identified a number of necessary repairs, including the need to fix the cracked radiator and front panel, a leaking valve cover gasket, and the power steering pump. The estimated cost of repairs was $4,012.61. The Moritz Mini mechanic noted, “75% of Body Panels have been Repainted.” The Browns faxed the repair estimate to Best Auto.

¶ 8 After communicating with Best Auto a number of times, the Browns demanded Best Auto take possession of the car and refund the purchase price. The Browns said Best Auto misrepresented the condition of the Mini Cooper and that it would cost nearly half of the purchase price to make the car run properly. Best Auto suggested the Browns auction the car in Texas. Best Auto assured the Browns the auction operator would be able to sell the Mini Cooper for the purchase price. Best Auto offered to help arrange the auction and pay $350 to repair the radiator. The Browns agreed to auction the Mini Cooper. The Browns paid an additional $800 to repair the car.

¶ 9 On May 27, the Browns drove the Mini Cooper from Moritz Mini to the auction site in Texas. The auction company attempted to sell the car at least two different times.

¶ 10 On June 18, William Brown contacted Thompson to demand Best Auto refund the purchase price, pay for repairs, and accept return of the car. William stated that “the car was nothing like you represented in the ebay ad.” William told Thompson that another mechanic at a dealership in Fort Worth inspected the car and “found a long list of problems including a cracked radiator, failed power steering pump, a dead [air conditioning] unit, 75% replaced and repainted panels, and obvious signs that the car has been in a wreck, including frame damage.” William also expressed concern about Best Auto's failure to send the title.

Where did you get this from? You still haven't sent us the title.... Since we have not received the title, I am wondering if this is a salvage vehicle or if there is some other documented sign that this was deemed totaled from a wreck. Our estimates from the dealer here show it will take well over $4,000 to repair just to get it on the road. In addition we have spent over $2,000 for related expenses.

¶ 11 In mid-July, Best Auto sent the Browns the “Vehicle Certification of Ownership (Title)” to the Mini Cooper. The title states that Best Auto transferred the Mini Cooper to the Browns on April 27, 2008. Contrary to Best Auto's representation that Thompson drove the Mini Cooper “many miles over the past few weeks and freeway cruised at [175 Wash.App. 364]75 MPH,” the disclosure and release of interest by the registered owner showed that when Best Auto purchased the car on March 29, 2008, the odometer reading was 76,114 miles, and it was 76,115 miles when Best Auto transferred title to the Browns on April 27.

¶ 12 On August 6, 2008, the Browns filed a lawsuit against Best Auto in Parker County, Texas. The complaint alleged breach of contract, unjust enrichment, promissory estoppel, fraud, and violations of the Texas Deceptive Trade Practices Consumer Protection Act (DTPA).¹ The Browns sought economic damages for the purchase price of $11,250, reimbursement for repairs, gas, and shipping, and treble damages and attorney fees and costs under the DTPA. The Browns served Best Auto through the Texas Secretary of State by certified mail. On August 20, the Texas Secretary of State received proof of service and the return receipt from Best Auto.

¶ 13 On September 2, an attorney representing Best Auto informed the attorney for the Browns that Best Auto “has contacted an attorney in Texas to seek dismissal of this action” based on the forum selection clause in the Vehicle Purchase Order. The state of Washington is designated as the forum to enforce the contract in the section addressing “Attorney's Fees and Costs.” But Best Auto did not file a notice of appearance or otherwise participate in the Texas proceedings.

¶ 14 The Browns filed a motion for a default judgment. The Texas court entered a judgment against Best Auto that includes treble damages under the DTPA, as well as prejudgment interest, attorney fees, and costs. The judgment states, in pertinent part:

The Court determined it had jurisdiction over the subject matter and the parties to this proceeding. No jury having been demanded, all matters in controversy, legal and factual, were...