Maison de France, Ltd. v. Mais Oui!, Inc.

• Decision Date: 31 January 2005
• Docket Number: No. 53130-1-I.,53130-1-I.
• Citation: 108 P.3d 787,126 Wash.App. 34
• Parties: MAISON DE FRANCE, LTD., a Washington corporation, Respondent, v. MAIS OUI!, INC., a Washington corporation; C'est La Vie!, Inc., a Washington corporation; Molly Marking and John Doe Marking, wife and husband, and the marital community comprised thereof; Nancee Rostad, and John Doe Rostad, wife and husband, and the marital community composed thereof; Caroline Beaupere and John Doe Beaupere, wife and husband and the marital community comprised thereof; and Judith White and John Doe White, wife and husband, and the marital community comprised thereof, individuals residing in the State of Washington, Appellants. Mais Oui!, Inc., a Washington corporation, Molly Marking, and Nancee and Rich Rostad, Third-Party Plaintiffs/Appelants, v. Maison de France, Ltd., a Washington corporation and Blaise Bouchand and Jane Doe, wife and husband and Martial community, Third-Party Defendants/Respondents.
• Court: Washington Court of Appeals

108 P.3d 787

126 Wash.App. 34

MAISON DE FRANCE, LTD., a Washington corporation, Respondent, v.MAIS OUI!, INC., a Washington corporation; C'est La Vie!, Inc., a Washington corporation; Molly Marking and John Doe Marking, wife and husband, and the marital community comprised thereof; Nancee Rostad, and John Doe Rostad, wife and husband, and the marital community composed thereof; Caroline Beaupere and John Doe Beaupere, wife and husband and the marital community comprised thereof; and Judith White and John Doe White, wife and husband, and the marital community comprised thereof, individuals residing in the State of Washington, Appellants.

Mais Oui!, Inc., a Washington corporation, Molly Marking, and Nancee and Rich Rostad, Third-Party Plaintiffs/Appelants, v.Maison de France, Ltd., a Washington corporation and Blaise Bouchand and Jane Doe, wife and husband and Martial community, Third-Party Defendants/Respondents.

No. 53130-1-I.

Court of Appeals of Washington, Division 1.

January 31, 2005.

Publication Ordered February 28, 2005.

Thomas E. Loop, Timothy B. McCormack, Delbert J. Barnard, Barbard Loop & McCormack LLP, Seattle, for Appellants.

Randy Barnard, Bellevue, for Respondent.

APPELWICK, J.

¶ 1 Two retailers of French housewares, C'est La Vie and Mais Oui!, and their owners and employees, sued Maison de France, another retailer of French housewares, alleging, among other claims, defamation.The trial court concluded that the publications at issue were substantially true in their stinging points.We conclude that some portions of one publication were materially false and defamatory per se.We affirm in part.We reverse in part and remand.

FACTS

¶ 2 In September 1998, Blaise Bouchand(Bouchand) and his wife, Jasmine Bouchand, opened Maison de France, a retail shop in Bellevue that sells French furnishings and housewares.

¶ 3 Bouchand hired Nancee Rostad(Rostad) in 1997 to work at Maison de France as a buyer and liaison with French vendors.In late 1998, about three months after Maison de France opened, Bouchand fired Judith White(White), another Maison de France employee.The following week, Rostad submitted her letter of resignation to Bouchand.

¶ 4 Rostad, White, and Karen Lewis Smith(Smith) formed C'est La Vie, Inc.(C'est La Vie), which was incorporated in April 1999.C'est La Vie was not a retail store.Rather, Rostad, White, and Smith planned to hold "two shows" in a rented space each year, at which they would offer French housewares for sale.C'est La Vie stocked its first show in May 2000 with merchandise acquired from about thirty to thirty-five vendors.About eight of the vendors also supplied Maison de France with products.Rostad testified at trial that the Bouchands visited the May 2000 show to check C'est La Vie's prices on merchandise.Although the May 2000 show grossed $30,000, after expenses C'est La Vie lost about $7,000 on it.Rostad testified that products from a French vendor named Terre e Provence were some of the best-selling items at the May 2000 show.

¶ 5C'est La Vie's second sales event was planned for November 2000.To stock its second show, C'est La Vie placed orders with at least some of the same vendors that stocked its May 2000 show.C'est La Vie placed an order for the November show with Terre e Provence in June 2000.Rostad testified that Terre e Provence "told us that they were not going to do business with us."The record does not indicate when Terre e Provence communicated its refusal to fill C'est La Vie's order.

¶ 6 On or around September 8, 2000, Bouchand sent a letter to vendors in France who had been providing merchandise to Maison de France.The English translation of the September 8, 2000 letter states:

¶ 7 Re: Important Information

Dear Madame, Dear Sir,

I hereby notify you that Maison de France, Ltd.No longer employs as of the end of 1998 and beginning of 1999 the following former employees:

— Caroline Beaupere

— Nancee Rostad

— Judith White

These persons were discharged or were forced to resign for serious misconduct.

Maison de France, Ltd. has no direct or indirect relationship with the named persons that conduct business under the company name "C'est la Vie" which is the object of an investigation by U.S. Customs, the FDA and the Seattle Police for multiple counts of fraud.

Maison de France, Ltd. has become since 1999 a family company since my wife and partner, Jasmine Bouchand, works with me.We are the sole authorized buyers for the Maison de France, Ltd.

...

Blaise Bouchard, president Maison de France, Ltd.

The record does not show which vendors, or precisely how many vendors, received the September 8th letter, but Bouchand testified that it was sent to approximately 150 vendors in France.

¶ 8 Rostad testified that she made the decision, "Right before" the November 2000 sales event, that she didn't want to go forward with C'est La Vie, because it would not be profitable."[Rostad] informed White of that before the second event, and [she] informed Karen Lewis Smith of that fact during the [November sales] event."Rostad explained in a letter to White and Smith that one reason she resigned from C'est La Vie was that it "lacked money-making potential."Rostad testified that her decision to leave C'est La Vie severely strained her relationships with White and Smith.The November 2000 sales event grossed approximately $40,000 with a loss of approximately $6,000.Smith sold her shares in C'est La Vie in November 2001.Rostad sold her shares in C'est La Vie to her husband, Richard Rostad, in September 2002.

¶ 9 In December 2000, Molly Marking(Marking), who was interested in opening a retail shop selling French housewares and wine, incorporated Mais Oui!.Marking employed Rostad as buyer and visual merchandiser.Mais Oui! opened as a retail shop in Bellevue, about one block from Maison de France, in June 2001.

¶ 10 Mais Oui! purchased goods from approximately French 125 vendors.Six or seven of those vendors also sold products to Maison de France.Marking and Rostad traveled to France to attend a semi-annual housewares show, Maison et Objet, to place orders for Mais Oui!.Marking testified that she first became aware of Bouchand's September 8th letter to French vendors when she and Rostad attended the January 2001 Maison et Objet show.

¶ 11 Rostad testified that Crossings refused to fill a Mais Oui! order placed in April 2001.Although Marking testified that Mais Oui! had lost about $20,000 by not having Crossing food items, Rostad testified that Mais Oui! had found an alternative source for the products it desired, so Mais Oui! was "no longer interested" in Crossings products.Mais Oui! placed an order with Idex, another vendor, in early September 2001.Idex initially refused to fill the order, then agreed to fill it, but informed Mais Oui! that they would not fill any future orders.Mais Oui! never attempted to place orders with Idex after September 2001.

¶ 12 On or about April 22, 2001, Bouchand sent a letter to a number of vendors in France which had been providing Maison de France with merchandise.The English translation of the April 22, 2001 letter states:

Bellevue, April 22, 2001 Attention: Souleiado

Helene, Service Export

RE: Important Information

Dear Madam:

I thank you for your honest and professional decision that we appreciate.We are honored to represent our French vendors, of course, we know them to be of French origin.This is the address of that new store that is situated facing our store on the same street:

Mais oui!Molly Marking, owner 1075 NE 10th Street & Bellevue Way Bellevue, WA 98004

...

The following people are no longer a part (no longer associated with, no longer working for) of Maison de France, for a[sic] least two years.Please note that these people have no relation to our store, they have been trying (using all available means) to obtain credit from our vendors including lying about their names and about the store for which they are working and their address.This information is very important as it concerns our relationship with you.Here is the list:

-Nancee Rostad

-Caroline Beaupere

-Judith White

These people are friends of Molly Marking and work as buyers for Mais oui!.Unfortunately, you are not the only vendor that these ex-employees have contacted.We have been informed that these ex-employees have stolen and copied the concept and the identity of Maison de France.Fortunately, Maison de France is a registered trademark in the United States, therefore we are the only owners.Thank God, the law protects us.We are doing all that is within our power to protect our trade name and our trademarked image.Fortunately, the `pseudo' store Mais Oui! will without a doubt not open by virtue of the law of the State of Washington.

I know that you believe in family enterprises.You have always indicated to us that we are your only client in Washington State.

We know that you don't wish to have your products sold in 2 stores situated in the same city, much less on the same street, especially if you already have an client with which [we] have worked for several years.We would appreciate it if you would be able to sign this letter and then fax it to us.

Thank you in advance.

Best regards,

We will see you in September at the Maison et Object.

Blaise & Jasmine Bouchand

Maison de France

The record does not show which vendors, or how many vendors, received the April 22nd letter, or whether the recipients of the September 8th letter also received the April 22nd letter.

¶ 13 In May 2001, Maison de France filed a complaint in King County Superior Court against Mais Oui!, alleging intentional interference with contractual relations, misappropriation of trade secrets, breach of duty of loyalty, and violations of the consumer protection act.Maison de France later voluntarily withdrew its charges, but not before the appellants filed counterclaims.The appellants' counterclaims included allegations that the Sept 8th...