Harbison v. Garden Valley Outfitters, Inc.

• Decision Date: 26 April 1993
• Docket Number: No. 28497-5-I,28497-5-I
• Citation: 69 Wn.App. 590,849 P.2d 669
• Parties: Danny L. HARBISON and Louella Harbison, husband and wife, and the marital community thereof, Respondents, v. GARDEN VALLEY OUTFITTERS, INC., an Idaho corporation; Appellant, and Bear Valley Outfitters, Inc., an Idaho corporation; Defendant, Dan Rotthoff and Margie Rotthoff, husband and wife, and the marital community comprised thereof; Appellants, Douglas Perry and Barbara Perry, husband and wife, and the marital community comprised thereof; and National American Insurance Company, an Idaho corporation, Defendants. Division 1
• Court: Washington Court of Appeals

Page 590

69 Wn.App. 590

849 P.2d 669

Danny L. HARBISON and Louella Harbison, husband and wife and the marital community thereof, Respondents, v. GARDEN VALLEY OUTFITTERS, INC., an Idaho corporation; Appellant and Bear Valley Outfitters, Inc., an Idaho corporation; Defendant Dan Rotthoff and Margie Rotthoff, husband and wife, and the marital community comprised thereof; Appellants Douglas Perry and Barbara Perry, husband and wife, and the marital community comprised thereof; and National American Insurance Company, an Idaho corporation, Defendants.

No. 28497-5-I.

Court of Appeals of Washington,

Division 1.

April 26, 1993.

William H. Thomas, Michael Brady, Boise, ID, John R. Crockett and Madden & Crockett, Seattle, for appellants.

Kathryn Jenkins, Seattle, for respondents.

BAKER, Judge.

We granted discretionary review of the trial court's order denying non-resident defendants' motion to dismiss for lack of personal jurisdiction. We reverse in part, granting the motion to dismiss as to the individual defendants, but affirm as to the corporate defendant because we hold that the acts of its predecessor entity in this state may properly be considered and are sufficient to establish jurisdiction under Washington's long-arm statute.

FACTS

Garden Valley Outfitters, Inc. (Garden Valley) is an Idaho corporation which conducts a guided hunting expedition business in that state. It sold its assets to another Idaho corporation, Bear Valley Outfitters, Inc. (Bear Valley). Bear Valley then operated a promotional booth at a sports show in Seattle, where plaintiff reserved a deluxe elk hunting pack trip.

Thereafter, the sale between Garden Valley and Bear Valley was terminated and Bear Valley "return[ed] the business" to Garden Valley. Garden Valley specifically "assume[d] [Bear Valley's] obligation to the twenty-one (21) hunters who have tendered deposits at this time and shall render all remaining services due said hunters."

The Idaho Outfitters and Guides Board required that Garden Valley notify the clients of Bear Valley of the repurchase. Garden Valley sent plaintiff a letter which stated that

your reservations this year will be honored by Garden Valley Outfitters, Inc. Credit for your deposit has been made and accommodations for the services you purchased has been arranged.

....

Elk and deer numbers are better than they have been in years and we expect a banner year.

Plaintiff traveled to Idaho, paid the balance due for the trip, and allegedly found conditions at the base camp and hunting campsite to be materially inconsistent with representations made by Bear Valley. Plaintiff aborted the trip and demanded a refund, which was refused.

Plaintiff subsequently commenced this action against Garden Valley and its individual owners (Rotthoffs), and obtained service of process in Idaho.

The Rotthoffs and Garden Valley moved to dismiss for lack of personal jurisdiction. They supported their motion with an affidavit denying any contacts with Washington State except for the letter notifying plaintiff of the repurchase by Garden Valley. The trial court denied the motion.

I

Preliminarily, we address an issue of appellate procedure. Garden Valley moves to "augment" the record pursuant to RAP 9.10 or 9.11 with a second affidavit. The affidavit states that the plaintiff made no payment until arrival in Idaho and that following the repurchase by Garden Valley, the corporations of Garden Valley and Bear Valley retained separate identities and did not merge. The latter fact goes to an issue of successor liability that will be discussed below.

RAP 9.10 does not apply. It pertains only to additions to the record of earlier trial court proceedings. See 3 L. Orland & K. Tegland, Wash.Prac., Rules Practice 207 (1991) (task force comment). The affidavit Garden Valley seeks to introduce was not considered below.

RAP 9.11 is a limited remedy under which this court may direct that additional evidence may be taken if all of the following six criteria are met:

(1) additional proof of facts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party's failure to present the evidence to the trial court, (4) the remedy available to a party throughpostjudgment motions in the trial court is inadequate or unnecessarily expensive, (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive, and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court.

RAP 9.11(a); State v. Ziegler, 114 Wash.2d 533, 541, 789 P.2d 79 (1990).

These conditions are not all met here. The information contained in the affidavit is not needed to fairly resolve the issues on review. Payment of a deposit by plaintiff does not involve an act by the defendants in this jurisdiction, so is not dispositive. Furthermore, the repurchase agreement contained in the existing record accurately describes the status of the two companies following that agreement. Plaintiff does not allege that the two corporations were merged. Thus, the additional evidence would not change the decision of this court, and it would not be inequitable to decide the case on the existing record.

Furthermore, the information sought to be introduced was known to Garden Valley at the time of the hearing on its motion to dismiss below. Thus, there is no reason to excuse its failure to present the evidence to the trial court. See Ziegler, 114 Wash.2d at 541, 789 P.2d 79.

We therefore deny the motion to take additional evidence on review. ¹

We nonetheless admonish appellants for inappropriately including in the appendix to their opening brief the second affidavit and other materials not of record, without indicating to the court in the brief that those materials were not part of the record and that a motion was pending to allow their consideration. This violates the intention of RAP 10.3 that factual statements in briefs must be referenced to the record. See RAP 10.3(4), (7).

II

The trial court's order does not state whether it held jurisdiction was warranted under the general jurisdiction statute, RCW 4.28.080, or the long-arm statute, RCW 4.28.185. These will be discussed in turn.

Regardless of which statute was applied, the question of personal jurisdiction is one of law which this court reviews de novo when the underlying facts are undisputed. Hein v. Taco Bell, Inc., 60 Wash.App. 325, 328, 803 P.2d 329 (1991). The plaintiff has the burden of establishing that the trial court has personal jurisdiction. Hein, 60 Wash.App. at 328, 803 P.2d 329. The allegations in the complaint must be taken as correct for purposes of appeal. Lewis v. Bours, 119 Wash.2d 667, 670, 835 P.2d 221 (1992); MBM Fisheries, Inc. v. Bollinger Mach. Shop & Shipyard, Inc., 60 Wash.App. 414, 418, 804 P.2d 627 (1991).

Here, with the exception of whether plaintiff tendered a deposit while he was in Washington, the facts are undisputed. Since plaintiff alleged that he did tender the deposit, that will be assumed to be fact for purposes of this appeal.

General Jurisdiction Pursuant to RCW 4.28.080(10)

Under RCW 4.28.080(10), a trial court may assert general jurisdiction over nonresident corporations "doing business within this state". General jurisdiction enables a court to hear cases unrelated to the defendant's activities within the forum. Hein, 60 Wash.App. at 328, 803 P.2d 329. This statute has been held to confer general jurisdiction over a nonresident defendant who transacts business in Washington that is substantial and continuous, and of such a character as to give rise to a legal obligation. Crose v. Volkswagenwerk Aktiengesellschaft, 88 Wash.2d 50, 54, 558 P.2d 764 (1977). This general jurisdiction statute subsumes the due process requirement of a long-arm statute that addresses jurisdiction arising out of or relating to the defendant's activities within the forum. See Hartley v. American Contract Bridge League, 61 Wash.App. 600, 605, 812 P.2d 109, review denied, 117 Wash.2d 1027, 820 P.2d 511 (1991); Hein v. Taco Bell, 60 Wash.App. at 328-30, 803 P.2d 329.

In MBM Fisheries, this court held that receipt of a brokerage fee in an unrelated transaction, a one-time participation in a Seattle trade show, the out-of-state performance of vessel repair for four Washington residents including the plaintiff, and the placement of magazine advertisements, some of which may not have been distributed in Washington, did not suggest continuous or substantial business activity such that general jurisdiction over the defendant could be obtained. MBM Fisheries, 60 Wash.App. at 420-22, 804 P.2d 627. Similarly, in Banton v. Opryland U.S.A., Inc., 53 Wash.App. 409, 417-18, 767 P.2d 584 (1989), overruled on other grounds in Shute v. Carnival Cruise Lines, 113 Wash.2d 763, 783 P.2d 78 (1989), an in-state sales presentation, payment of commissions to travel brokers in Washington, occasional local broadcasts of music, and the receipt of a resident's check and return of a confirmation of reservation of tickets and lodging were not held to be systematic and continuous contacts that would justify general jurisdiction.

Assuming for this analysis that Bear Valley's acts in Washington can be considered for purposes of asserting jurisdiction over Garden Valley, we find nothing in these cases which would allow a finding of general jurisdiction over the defendants based upon a finding of systematic and continuous contacts in this state.

Specific Jurisdiction Under the Long-Arm Statute

We next consider specific jurisdiction under RCW 4.28.185, Washington's long-arm statute. This statute authorizes courts to exercise jurisdiction according to its terms over nonresident defendants to the extent permitted by the due process clause of the United States Constitution. MBM Fisheries, 60 Wash.App. at 423, 804 P.2d 627.

Plaintiff claims jurisdiction is proper...