WHECO Corporation v. Ross Bros. & Company, Inc., No. 22529-1-III (WA 5/24/2005), 22529-1-III
| Decision Date | 24 May 2005 |
| Docket Number | No. 22529-1-III,22529-1-III |
| Court | Washington Supreme Court |
| Parties | WHECO CORPORATION, a Washington corporation, Plaintiff, v. ROSS BROS. & COMPANY, INC., an Oregon corporation, Appellant, BETHLEHEM CONSTRUCTION, INC., a Washington corporation, Respondent, FIREMAN'S FUND INSURANCE COMPANY, a foreign insurance company, Defendant. |
Appeal from Superior Court of Franklin County. Docket No: 01-2-50738-1. Judgment or order under review. Date filed: 10/20/2003. Judge signing: Hon. Carolyn a Brown.
Counsel for Appellant(s), John Todd Henry, Oles Morrison Rinker & Baker, 701 Pike St Ste 1700, Seattle, WA 98101-3930.
Eileen I. McKillop, Oles Morrison Rinker & Baker LLP, 701 Pike St Ste 1700, Seattle, WA 98101-3930.
Benjamin Michael Schestopol, Oles Morrison Rinker & Baker LLP, 701 Pike St Ste 1700, Seattle, WA 98101-3930.
Counsel for Plaintiff(s), Boris Gaviria, Davis Wright Tremaine, 777 108th Ave NE Ste 2300, Bellevue, WA 98004-5149.
Counsel for Defendant(s), Michael K. McCormack, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Counsel for Respondent(s) Christian Robert Cox, Dunn & Black PS, 10 N Post St Ste 200, Spokane, WA 99201.
Kevin W Roberts, Dunn & Black PS, 10 N Post St Ste 200, Spokane, WA 99201-0705.
A second agreement for the same work must be supported by additional consideration. The agreement here (for crane services) was memorialized by a purchase order. But after the crane and operator arrived at the job site, the crane company presented the buyer's foreman with a preprinted form ostensibly to document hours. But the reverse side of the form included additional terms and conditions. The foreman signed the form. We conclude that any additional terms and conditions are unsupported by additional consideration and are therefore unenforceable. And we affirm the trial court's dismissal of the crane company's claim for damage to the crane.
This litigation follows an agreement for crane services between Bethlehem Construction, Inc. and Ross Crane & Rigging, Inc. Bethlehem was the general contractor for a building in Odell, Oregon. The job involved hoisting and positioning of tilt-up panels; this required a crane. Bethlehem contacted Ross in December 2000. A Ross employee visited the site. Ross offered to perform the crane services, complete with Ross employees as crane operator and crane oiler at a specified price. Bethlehem accepted the offer on December 28. Bethlehem issued and sent Ross a purchase order confirming the deal. Ross delivered the crane, crane operator, and crane oiler to the job site on January 16, 2001.
Ross paid the wages, employment taxes, and workers' compensation insurance for its operator and oiler. Ross was responsible for on-site fueling and repair of the crane. The operator and oiler had sole control over the crane and the keys to the crane. And Ross retained control over their hiring and firing.
On January 17, the second day of operations, Ross's crane operator presented Bethlehem's foreman with the first of four forms titled Standard Short Term Crane Rental Agreement. The forms recorded hours worked and duties performed, along with the amounts owed. The invoice-like pieces of paper included terms on the back. Ross did not provide copies of the forms to Bethlehem until the end of the job.
One of the panels came loose, fell on the crane, and damaged it on January 24, 2001.
A procedurally complex series of suits and countersuits ensued involving Ross, a repair company, and insurance companies. Ross, the defendant in the main action, filed a third party complaint against Bethlehem. At issue here is Ross's allegation that Bethlehem is liable to Ross for damage to the crane under the terms of the forms signed by Bethlehem's foreman.
Bethlehem moved for summary judgment. It contended the facts were undisputed, the terms were boilerplate, and the terms were unenforceable because they modified the preexisting oral contract without consideration. The court agreed and granted summary judgment.
Ross nonetheless continued to pursue its claims against Bethlehem. It argued that it had other theories independent of the terms of its time sheet. Ross did not have other independent theories. Bethlehem asked the court to clarify the order to make clear that all of Ross's claims against Bethlehem were dismissed. The court did so.
Ross appealed. But after Ross filed its notice of appeal, other activity continued in the superior court, and the appellate pleadings were amended numerous times. Finally, our commissioner remanded for further proceedings and entry of findings and a definite appealable order.
Upon remand, the court certified a final judgment in favor of Bethlehem Construction based on the court's prior orders. The court unequivocally dismissed all of Ross's claims against Bethlehem. The court certified that unadjudicated claims remaining between Ross and other parties did not involve the contract between Ross and Bethlehem. All issues concerning the legal rights between Ross and Bethlehem have been adjudicated and are unlikely to be affected by the remaining claims between Ross and other parties. We, accordingly, address the merits of Ross's appeal of the summary dismissal of its claims.
Ross contends that the case should have been decided under Oregon law because of the `significant contacts' rule. It argues that the disputed agreement was negotiated, executed, and performed in Oregon and Ross is an Oregon corporation. Bethlehem responds that conflict of laws questions only arise when there is a conflict of laws. And here there is no conflict. Washington and Oregon law are in harmony on every aspect of the law applicable here.
We need not engage in a choice of law analysis unless a conflict of laws exists. Cox v. Lewiston Grain Growers, Inc., 86 Wn. App. 357, 364-65, 936 P.2d 1191 (1997).
The lawsuit was filed in Franklin County, Washington, by the Washington company that repaired the crane. Ross argued below that Oregon negligence law differs from Washington's. But the summary judgment motion and this appeal are not about negligence. They are about the contract claims, and there is no conflict of laws there. Compare, for example, the discussion of modification without consideration in Liberty Mut. Fire Ins. Co. v. Hubbard, 275 Or. 567, 569, 551 P.2d 1288 (1976), and Rosellini v. Banchero, 83 Wn.2d 268, 270, 517 P.2d 955 (1974). And the court correctly applied Washington law.
Ross first contends that the controlling agreement was the subsequent written `lease agreement,' rather than the original oral contract. And under Oregon law, a written contract supersedes any prior oral contract. Moreover, Ross contends, the written contract is a lease, and modification of a lease does not require consideration under the Uniform Commercial Code.
Bethlehem responds that Washington law applies. And there is no conflict between Washington and Oregon law in any event. It argues that the facts are indisputable that all the elements of an oral contract were in place by December 28, 2000. And this contract was memorialized by the written purchase order. And, if that were not enough, Bethlehem asserts that Ross showed up and started performance after the exchange of promises. Bethlehem concludes, then, as did the trial court, that additional consideration would have been required to modify the existing oral contract.
We review summary judgments de novo. We engage in the same inquiry as the trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary judgment is proper when `there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.' CR 56(c); Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003).
The material facts here are not disputed. These parties entered into an oral contract on December 28, 2000. The terms of the oral contract are clear. Ross agreed to provide Bethlehem with a crane, operator, and oiler at a specific job site beginning on an agreed date to perform agreed services for an agreed price; this is offer, acceptance, and consideration. Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36, 50, 43 P.3d 23 (2002). Ross appeared at the agreed place with the agreed equipment and personnel and started the agreed performance. Ross suggests that performance did not begin until its operator actually lifted a panel. But we find no authority to support this assertion. And it is clear that Ross performed (showed up) in reliance upon Bethlehem's promise to pay.
The controlling issue is one of law: whether a subsequent written agreement supersedes an earlier oral agreement. The question was settled in Rosellini. A second agreement whereby one party assumes additional obligations while the other is simply to perform its original obligation must be supported by additional consideration. Rosellini, 83 Wn.2d at 273. The trial court correctly concluded that this transaction was controlled by the December 28, 2000 agreement and that additional...
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