Kim v. Moffett

• Decision Date: 29 June 2010
• Docket Number: No. 38426-4-II.,38426-4-II.
• Court: Washington Court of Appeals
• Parties: John H. KIM, Min H. Kim and Eugene H. Kim, Appellants,v.Frank C. MOFFETT and “Jane Doe” Moffett, husband and wife, and T.A.A., Incorporated, Respondents.

156 Wash.App. 689

234 P.3d 279

John H. KIM, Min H. Kim and Eugene H. Kim, Appellants,v.Frank C. MOFFETT and “Jane Doe” Moffett, husband and wife, and T.A.A., Incorporated, Respondents.

No. 38426-4-II.

Court of Appeals of Washington Division 2.

June 29, 2010.

COPYRIGHT MATERIAL OMITTED

Douglas Duane Sulkosky, Attorney at Law, Tacoma, WA, for Appellants.

Paul H. Meyer, Attorney at Law, Olympia, WA, for Respondents.

QUINN-BRINTNALL, J.

¶ 1 Chul Mo Kim contracted with an Olympia architect for professional services to facilitate the development of California properties that were owned at different times by Kim, and then his sons, in various partnerships. When Kim, and then the sons, sued the architect, alleging breach of contract, the trial court dismissed the claims, ruling that the plaintiffs were not real parties in interest and that an undisclosed principal may not enforce a personal services contract. Only the Kim children appeal. At issue on appeal is the propriety of those dismissals. We hold that as a party to a contract for personal architectural services, only Kim has a right to enforce that contract and we affirm the trial court's orders dismissing the Kim children's claims.

FACTS

Chain of Title/Chronology of Events

¶ 2 On December 28, 1987, Kim and his wife, Sun Hae Kim, purchased property located in Orinda, California, that later became known as 2 Alice Court and 7 Alice Court. On December 28, 1989, and December 15, 1992, Kim and his wife transferred the parcels to trusts for their three sons, John H. Kim, Min H. Kim, and Eugene H. Kim (hereafter the Kim Children).

¶ 3 On June 10, 1999, Kim formed the Strykowski Limited Partnership (a California limited partnership), listing Kim's Olympia address as the partnership's address and Kim's California attorney as the registered agent. The partnership consisted of Kim as the general partner and the Kim Children as the limited partners. On August 13, 1999 the above noted trusts transferred the real property in question to the Strykowski Limited Partnership.

¶ 4 On April 28, 2001, Kim and Frank Moffett, an Olympia architect licensed in California, entered into an initial agreement authorizing Moffett to gather information “preliminary to a formal agreement” as necessary for preparing construction designs for a residence on each of the two California properties. Clerk's Papers (CP) at 121.

¶ 5 On September 7, 2001, Kim, as general partner in the Strykowski Limited Partnership, signed a grant deed transferring the California property to the Kim Children, who were then adults. The deed was recorded in the California Contra Costa County Recorder's Office on October 1, 2001.

¶ 6 Meanwhile, based on another architect's work, Kim obtained initial design review approval from the Orinda Planning Commission on August 28, 2001 and October 9, 2001, regarding 7 Alice Court and 2 Alice Court, respectively. ¹

¶ 7 On October 19, 2001, Kim and Moffett formally contracted for Moffett's architectural services regarding the two California parcels. On the same day, Kim and Moffett signed Moffett's proposal letter for the project and signed the noted contract. The contract contained an integration clause stating, “This constitutes our entire agreement, and any provisions not included herein are specifically excluded.” CP at 136. The contract is in the format of a letter written from Kim to Moffett on Kim's letterhead authorizing Moffett to perform listed architectural services regarding the Alice Court properties or as modified and authorized by Kim. The contract provides that “[t]his authorization may be withdrawn by me [Kim], or resigned by you [Moffett], for cause upon written notice.” CP at 136. Kim signed Moffett's October 19 proposal letter, the October 19 contract, and the earlier April 28 preliminary agreement as “owner” of the California properties.

¶ 8 After October 19, 2001, Moffett performed design work for which Kim paid $9,500. Around early February 2002, Moffett informed Kim that he was moving to California, would no longer be working on the project, and referred Kim to another architect in Olympia, R. Chandler Sogge. Purportedly, Sogge was not licensed in California, the work that Sogge and his associates performed was not acceptable to the planning commission, delays resulted in permits expiring before completion and approval of the required designs, and Kim had to start over with the development permitting and approval process.

¶ 9 On December 30, 2002, the Kim Children signed a grant deed transferring title to the California properties to JME Limited Partnership. JME was subsequently formed as a Washington limited partnership on January 7, 2003. The Kim Children's grant deed (signed on December 30, 2002) was subsequently recorded in the California Contra Costa County Recorder's Office on April 17, 2003.

Procedural Background

¶ 10 On May 18, 2006, Kim filed a complaint alleging that Moffett breached the October 19, 2001 contract for architectural services. On May 25, 2007, Kim filed an amended complaint that added JME as a plaintiff and stated that Kim was acting as JME's agent when he contracted with Moffett in October of 2001.

¶ 11 On December 14, 2007, Moffett filed a motion for an order of dismissal, judgment on the pleadings, and summary judgment seeking dismissal of all claims by Kim and JME. On May 23, 2008, the trial court granted Moffett's motion to dismiss Kim's claim on the grounds that Kim was not a real party in interest and also granted Moffett's motion for an order on summary judgment dismissing JME's claim.²

¶ 12 On June 2, 2008, Kim and JME filed a motion for reconsideration. The trial court denied the motion for reconsideration in a June 11, 2008 letter opinion and by written order filed on September 12, 2008.

¶ 13 The Kim Children filed a second amended complaint on February 12, 2008. The second amended complaint identified the plaintiffs as John H. Kim, Min H. Kim, and Eugene H. Kim, and stated that Chul Kim, acting as agent for the plaintiffs, contracted with Moffett, who breached the contract thereby damaging the plaintiffs.

¶ 14 On June 20, 2008, Moffett filed a motion for summary judgment regarding the second amended complaint by the Kim Children. On September 12, 2008, the trial court granted the motion. The trial court ruled that the Kim Children were undisclosed principals on a personal services contract between Moffett and Kim, who was acting as an agent for the Kim Children.³

¶ 15 The Kim Children now appeal the trial court's September 12, 2008 orders denying Kim and JME's motion for reconsideration and granting Moffett's motion for summary judgment dismissing the second amended complaint.

ANALYSIS

Standard of Review

¶ 16 We review an order granting summary judgment de novo and engage in the same inquiry as the trial court. Weden v. San Juan County, 135 Wash.2d 678, 689, 958 P.2d 273 (1998). Summary judgment is proper “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.” CR 56(c). A material fact is one upon which the outcome of the litigation depends. Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267, 279, 937 P.2d 1082 (1997). Summary judgment is proper when reasonable minds could reach but one conclusion regarding the material facts. Greater Harbor 2000, 132 Wash.2d at 279, 937 P.2d 1082.

¶ 17 By contrast, we review a trial court's denial of a motion for reconsideration for abuse of discretion. Davies v. Holy Family Hosp., 144 Wash.App. 483, 497, 183 P.3d 283 (2008). A trial court abuses its discretion only if its decision is manifestly unreasonable or rests upon untenable grounds or reasons. Davies, 144 Wash.App. at 497, 183 P.3d 283. An abuse of discretion exists only if no reasonable person would have taken the view adopted by the trial court. Davies, 144 Wash.App. at 497, 183 P.3d 283.

¶ 18 To the extent we are required to interpret contract provisions, we apply the noted de novo review standard.⁴ While interpretation of a contractual provision is often an issue of fact,⁵ construction⁶ is always a question of law In re Marriage of Burke, 96 Wash.App. 474, 476, 980 P.2d 265 (1999), and, thus, amenable to summary judgment.

Dismissal of Kim's and JME's Breach of Contract ClaimsA. Kim's Dismissal

¶ 19 Appellants, the Kim Children, first contend that the trial court “abused it's [sic] discretion” in dismissing Kim's breach of contract claim.⁷ Br. of Appellant at 11. They argue that Kim was a real party in interest in several ways.

¶ 20 “CR 17(a) demands: ‘Every action shall be prosecuted in the name of the real party in interest.’ ” ⁸Goodwin v. Bacon, 127 Wash.2d 50, 54, 896 P.2d 673 (1995). “[T]o enable one to maintain a cause of action to enforce private rights he must show that he has some real interest in the cause of action. ‘His interest must be a present, substantial interest, as distinguished from a mere expectancy, or future, contingent interest, and he must show that he will be benefited by the relief granted.’ ” State ex rel. Hays v. Wilson, 17 Wash.2d 670, 672, 137 P.2d 105 (1943) (quoting 39 Am.Jur. 860); cf. Denman v. Richardson, 284 F. 592, 594 (1921) (applying former Rem. & Bal.Code § 179 (1910) (recodified as former RCW 4.08.010 (repealed 1985) and now found in CR 17), which required actions to be brought in the name of the real party in interest and holding that an agent cannot maintain an action on behalf of his principal in his own name).

¶ 21 The Kim Children contend that Kim lost management fees as the contractor for building the residences that he would have made had Moffett completed the contract and the designs been approved within the required time limit. But this is mere expectancy or future contingent interest and, thus, is insufficient to qualify Kim as a real party in interest. Hays, 17...