Reger v. Dell Mktg.
| Docket Number | 83529-7-I |
| Decision Date | 01 August 2022 |
| Parties | THOMAS REGER, an individual, Appellant, v. DELL MARKETING L.P., Respondent. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Thomas Reger sued Dell Marketing LP (Dell) after it denied Reger's attempt to transfer a warranty for a Dell server that Reger purchased through an auction. Reger appeals the trial court's summary dismissal of his claims. Finding no error, we affirm.
In October 2020, Reger purchased a Dell "PowerEdge FX2" server through an online auction. According to Reger's later declaration, he "inspected the server in person" before purchasing it and "found [it] to be brand new with all of its warranty and support papers unopened." Additionally, it "appeared to [Reger] based on a sticker on the side of the box that the server was being auctioned off on behalf of a company called Oak Harbor Freight." Reger declared that he checked Dell's website before purchasing the server, and according to the website, Dell's warranty for the server was valid until March 3, 2023. Reger also declared that he "checked the Dell website on the transferability of the warranty and understood the warranty was transferable."
The record reflects that Reger paid approximately $4,800 for the server ($3,805.00 plus a 15 percent "Buyer's Fee" and 10.2 percent sales tax). He later "attempted several times to transfer the warranty/ownership of the server" using Dell's website, but "all attempts were denied."
In early 2021, Reger initiated this lawsuit against Dell. Reger alleged that the server he purchased "is currently sold on Dell's website for in excess of [$]50,000" and "[t]he server's value is derived from high reliability, extreme performance and arguably most important 'Johnny on the spot support'." He alleged that "Dell's refusal to transfer the warranty diminished the value of the server by over [$]32,000" and that he "was forced to sell the server on Ebay.com, admitting th[at] Dell would not transfer warranty, obliterating the true value of the server." Reger also alleged that "Dell has a business practice of commencing server and consumer warranties when Dell ships the server, prior to the buyer possessing the server."
Reger asserted an unspecified cause of action, as follows:
Reger also asserted a cause of action for violation of the Consumer Protection Act (CPA),[1] premised on Dell's "prematurely starting . . . the 'warranty clock' before the product is in the consumer's possession." Reger sought injunctive relief "stopping the shortening of advertised warranty coverage," as well as actual damages of $32,000 and $25,000 in punitive damages under RCW 19.86.090.[2]
In August 2021, Dell moved for summary judgment on all of Reger's claims. Dell contended that to the extent Reger's complaint stated a claim for breach of contract, "Reger cannot prove the existence of any contract between himself and Dell." Dell presented evidence that the server at issue was sold through a Dell reseller, IT1 Source, to a company called "Intermedia," for shipment to an address in Seattle. Dell also presented evidence that Intermedia never received the server and, on March 31, 2020, Dell submitted a "loss or damage claim" to the shipping company, Mach 1 Global Services, Inc. (Mach 1). Dell pointed out there was no evidence the online auction site through which Reger purchased the server was affiliated with Dell, and it argued that Reger's breach of contract claim failed because "[c]ontracts require mutual assent and consideration [and] Reger cannot show any evidence of mutual assent, and there is absolutely no consideration . . . between himself and Dell."
Dell also observed that Reger's complaint could be read to allege causes of action for promissory estoppel and breach of warranty, and that both of those claims also failed as a matter of law. And Dell argued that Reger lacked standing to assert a CPA claim and, in any event, failed to raise a genuine issue of material fact as to the elements of such a claim.
The trial court granted Dell's motion for summary judgment and dismissed Reger's complaint with prejudice. Reger appeals.
"Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Rublee v. Carrier Corp., 192 Wn.2d 190, 198, 428 P.3d 1207 (2018). Where as here, the defendant moves for summary judgment based on the absence of evidence to support an essential element of the plaintiff's case, the plaintiff must "present admissible evidence demonstrating the existence of a genuine issue of material fact" to defeat summary judgment. Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 351, 144 P.3d 276 (2006). "A material fact is one upon which the outcome of the litigation depends." Gull Indus., Inc. v. Granite State Ins. Co., 18 Wn.App. 2d 842, 893, 493 P.3d 1183 (2021), review denied, 199 Wn.2d 1007 (2022).
We review an order granting summary judgment de novo, performing the same inquiry as the trial court. Nichols v. Peterson Nw., Inc., 197 Wn.App. 491, 498, 389 P.3d 617 (2016). In so doing, we consider the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). "We may affirm on any basis supported by the record whether or not the argument was made below." Bavand v. OneWest Bank, 196 Wn.App. 813, 825, 385 P.3d 233 (2016).
Reger contends that the trial court erred by summarily dismissing his CPA claim. We disagree.
To prevail on his CPA claim, Reger had to establish five elements: "(1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or property; [and] (5) causation." Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). Reger's claim fails on the first element, i.e., whether Dell was engaged in a deceptive act or practice.
"Whether an act is . . . deceptive under the CPA is a question of law." State v. LA Inv'rs, LLC, 2 Wn.App. 2d 524, 538, 410 P.3d 1183 (2018)." 'Deception exists if there is a representation, omission, or practice that is likely to mislead a reasonable consumer.'" State v. Mandatory Poster Agency, Inc., 199 Wn.App. 506, 518-19, 398 P.3d 1271 (2017) (internal quotation marks omitted) (quoting Rush v. Blackburn, 190 Wn.App. 945, 963, 361 P.3d 217 (2015)). While the CPA does not define "deceptive,"" 'the implicit understanding is that the actor misrepresented something of material importance.'" Mandatory Poster Agency, 199 Wn.App. at 519 (internal quotation marks omitted) (quoting State v. Kaiser, 161 Wn.App. 705, 719, 254 P.3d 850 (2011)).
Here, Reger asserts that "Dell activat[es] the warranty upon shipment and not at delivery," i.e., "days if not weeks before the product is owned and in the possession of the consumer," and "this is a deceptive business practice" under the CPA. But Reger fails to explain why a reasonable consumer would believe that the warranty term begins at possession, so as to be misled if it begins earlier. It is undisputed that Dell's warranty expressly states that it "begins on the date of the packing slip, invoice, receipt or other sales documentation" for hardware purchased directly from Dell, and "on the date of your original sales receipt" for hardware purchased from third-party retailers or resellers. Meanwhile, Reger points to no evidence that Dell otherwise represents to consumers that the warranty begins only upon possession. Reger fails to establish that Dell's starting the warranty term before the customer's possession is deceptive, and thus, his CPA claims fails as a matter of law.
Reger disagrees and points out that a Dell employee testified that Dell transferred title to the server when it was shipped, but the same employee also testified that Dell's "Reseller Terms of Sale" (Reseller Terms) applied to the sale of the server. According to Reger, the Reseller Terms "state[ ] title transfers upon delivery to the consumer," thus conflicting with the Dell employee's testimony and creating a genuine issue of material fact. But even assuming Reger's interpretation of the Reseller Terms is correct,[3] he points to no evidence in the record that Dell represented to consumers that the warranty term does not start until title passes. Hence, any conflict between the Dell employee's testimony and the Reseller Terms is not material. The trial court did not err in dismissing Reger's CPA claim.
CPA claim aside, the thrust of Reger's complaint was that Dell had an obligation to approve Reger's warranty transfer, and Dell's refusal to do so diminished the value and marketability of the server, causing damages to Reger. Dell argued below that Reger's claims were grounded in breach of contract, promissory estoppel, or breach of warranty. Reger did not argue...
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