Island Air, Inc. v. LaBar
| Decision Date | 18 July 1977 |
| Docket Number | No. 4023-I,4023-I |
| Citation | 566 P.2d 972,18 Wn.App. 129 |
| Parties | ISLAND AIR, INC., Respondent/Cross-Appellant, v. Les LaBAR, d/b/a San Juan Airlines, Appellant. |
| Court | Washington Court of Appeals |
Smith & Rosellini, Philip E. Rosellini, Lynden, for appellant.
Anderson & Anderson, Eugene C. Anderson, Anacortes, for respondent.
United Parcel Service, Inc. (U.P.S.) entered into an oral contract with Skyline Air Service, Inc., in 1964 or 1965, for the delivery of parcels to the San Juan Islands. Skyline Air Service was owned in part by Marjean Wilson. About 1969, Skyline Air Service, Inc., merged with Puget Sound Airlines, Inc., which took over the U.P.S. contract, and the parcel delivery contract was reduced to writing. In October 1970, Puget Sound Airlines went into bankruptcy and ceased doing business.
Marjean Wilson, with a second principal (whose interest was later purchased by John Carabba), formed Island Air, Inc. Island Air, Inc., performed under the contract until August 15, 1973, when the contract was terminated. The U.P.S. contract was carried out as follows: A representative of U.P.S. delivered packages destined for the San Juan Islands to the Anacortes Airport. Island Air, Inc., segregated the packages as to destination and loaded them aboard the plane, together with the afternoon mail, for delivery to the appropriate island. Local deliverymen on the respective islands received the packages and delivered them to their final destination, using their own vehicles.
The initial income from the U.P.S. contract was small, but it had grown to an annual gross income of approximately $30,000 by the time of trial. The contract was particularly profitable for Island Air, Inc., because, except for fees paid to agents for delivery on the islands, there were no additional costs of operation not already incurred in the performance of a separate contract to deliver mail. Island Air, Inc., held an air carrier's permit, but had not been issued a common carrier permit by the state of Washington.
Les LaBar was employed by San Juan Airlines and had had years of aviation experience, both commercial and private. Late in 1972, LaBar and an associate requested a meeting with the two principals of Island Air, Inc., John Carabba and Marjean Wilson. At that meeting LaBar and his associate indicated their interest in purchasing Island Air, Inc., and were quoted a purchase price of $100,000. There was also a general discussion of the business, but no specific discussion of income, profit and volume.
In January of 1973 a second meeting was held. The trial court's findings best reflect what occurred at that meeting and thereafter as follows:
XV.
At said meeting Defendant and his companion expressed an interest in managing the business for the stockholders, which offer was refused. Defendant and his companion then expressed a further interest in purchasing the business if they could have some facts and figures upon which to evaluate the proposed selling price.
XVI.
At said meeting the Plaintiff's stockholders and officers then present indicated that the information would be furnished provided it was understood and agreed that the information so furnished was confidential and was to be used only to evaluate the possible purchase of the business, and not for the purpose of engaging in competition with Plaintiff or in any way hurting Plaintiff's operation.
XVII.
Defendant and his companion agreed and so understood that the information would be utilized only in the manner required by Plaintiff.
XVIII.
Plaintiff's stockholders and officers and directors then and there present then gave to Defendant and his companion details concerning the total operation of Plaintiff's business, including specific details about the United Parcel Services contract and the operation, income and expenses associated therewith.
XIX.
No agreement was reached as to the selling of the business by Plaintiff or the purchase of the same by Defendant and his companion.
XX.
Subsequent to that meeting, Defendant determined that he would not purchase the business of Plaintiff. Subsequent to that determination, Defendant contacted United Parcel Services, Inc., at their Seattle offices, represented that he was considering purchasing Island Air, Inc., and was seeking information about the Island Air, Inc., contract, to determine if it existed, and whether United Parcel Services, Inc., would continue the contract if he purchased the business. At that meeting he received assurances from United Parcel Services, Inc., officials that the contract would continue and that they would continue the contract with him if he purchased the business.
XXI.
Subsequent to that meeting, Defendant contacted United Parcel Services, Inc., and made them an offer to supply the same services then being supplied by Island Air, Inc., at a lesser cost than that being charged by Island Air, Inc.
XXII.
Following further negotiations with Defendant, United Parcel Services Inc., accepted a revised offer from Defendant and cancelled the Island Air, Inc., contract, effective August 15, 1973.
XXIII.
Although there were some minor differences in operations of the delivery services offered by Defendant from that then being performed by Island Air, Inc., the reason for the cancellation of the contract from United Parcel Services, Inc., standpoint was the lessening of expense to it of delivery of packages in the islands, under Defendant's offer.
XXIV.
Prior to the contacts made by Defendant with United Parcel Services, Inc., officials, no complaints were made by United Parcel Services, Inc., officials to Island Air, Inc., officials about Island Air, Inc.'s performance and United Parcel Services, Inc., was satisfied with the services being performed by Plaintiff for United Parcel Services, Inc.
XXV.
Between the time of Defendant's first meeting with United Parcel Services, Inc., officials and his subsequent offer to them in competition with Plaintiff's contract, United Parcel Services, Inc., officials made an independent analysis of whether or not they could deliver packages to the San Juan Islands themselves in their normal manner, and United Parcel Services Inc., officials determined they could not make such deliveries and that the type of service offered by Island Air, Inc., should continue.
XXVI.
Upon learning that Defendant was making a proposal to United Parcel Services Inc., Plaintiff requested details concerning the proposal but was refused them by United Parcel Services Inc., and was not given an opportunity to make its own proposal before the final proposal of Defendant was accepted.
XXVII.
Defendant with his wife, is the owner and sole stockholder of Aeronautical Services Inc., which was the corporation which was organized for performance of and was awarded the United Parcel Services Inc., contract to perform the services previously performed by Plaintiff. Said contract was for a three year period, with a three year renewal period, but with the right reserved to both United Parcel Services, Inc., and Aeronautical Services Inc., to terminate the contract upon giving of sixty (60) days written notice.
XXVIII.
Aeronautical Services Inc., had performed the services formerly performed by Plaintiff for United Parcel Services Inc., from August 15, 1973 to the date of trial, and had at that time received no notice of cancellation or indication that the contract was going to be terminated.
XXIX.
But for the actions of Defendant, Plaintiff's contract with United Parcel Services Inc., would have continued.
XXX.
The damage sustained by Plaintiff because of the cancellation and termination of their contract was $18,000.
The findings of fact are unchallenged except for findings of fact No. 20, 29 and 30, to which the defendant assigns error.
The defendant asserts that the trial court should have granted summary judgment to him, and that the findings of fact enumerated were entered erroneously. The defendant further claims that the trial court wrongfully concluded that the defendant had tortiously interfered with the plaintiff's business, that the defendant had breached a contractual duty not to use the information furnished him to the plaintiff, and that the plaintiff was entitled to judgment in the sum of $18,000, plus costs. The plaintiff maintains that the judgment was inadequate.
The defendant states that the trial court should have granted his motion for summary judgment. He claims that uncontroverted evidence before the trial court showed that (1) U.P.S. voluntarily terminated its contract with the plaintiff; (2) U.P.S. has an established policy of entertaining competitive bids; (3) U.P.S. encourages competition and is willing to divulge contract information to prospective bidders to assist them in submitting bids; and (4) the defendant never represented that he intended to purchase the stock of the plaintiff. We do not agree.
The purpose of a motion for summary judgment is to examine the sufficiency of the evidence supporting the plaintiff's formal allegations so that unnecessary trials may be avoided where no genuine issue of material fact exists. CR 56; Morris v. McNicol, 83 Wash.2d 491, 519 P.2d 7 (1974); Garbell v. Tall's Travel Shop, Inc., 17 Wash.App. 352, 353, 563 P.2d 211 (1977). A material fact is one upon which the outcome of litigation depends in whole or in part. Morris v. McNicol, supra; Amant v. Pacific Power & Light Co., 10 Wash.App. 785, 520 P.2d 181 (1974), aff'd per curiam, 84 Wash.2d 872, 529 P.2d 829 (1975). The motion will be granted only if after viewing the pleadings, depositions, admissions and affidavits, and all reasonable inferences that may be drawn therefrom in the light most favorable to the nonmoving party, it can be stated as a matter of law that (1) there is no genuine issue as to any material fact, (2) all reasonable persons could reach only one conclusion,...
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