Robert Herbruger, V. Bellevue College ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROBERT HERBRUGER, an individual, ) No. 82419-8-I
)
Appellant, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
BELLEVUE COLLEGE, an agency of the )
State of Washington, )
)
Respondent, )
)
GIRARD WEBER in his official and )
individual capacities; CYNTHIA GROSS in )
her official and individual capacities; )
DAVID HALL in his official and individual )
capacities; AARON HILLIARD in his )
official and individual capacities; DEXTER )
JOHNSON in his official and individual )
capacities; RAY WHITE in his official and )
individual capacities; and MARIA WOODS )
in her official and individual capacities, )
)
Defendants. )
)
HAZELRIGG, J. — Robert Herbruger brought suit against his former
employer, Bellevue College, for breach of contract. He claims that a letter he
submitted advising of the withdrawal of an appeal related to his employment
constituted a binding contract on the parties. The trial court dismissed one of
Herbruger’s claims in an earlier motion hearing and then granted summary
judgment in favor of Bellevue College on the breach of contract claim. Herbruger
No. 82419-8-I/2
challenges both the ruling of the trial court and the form of the order granting
summary judgment. Finding that no contract exists, and that the trial court order
on summary judgment comports with requirements under the court rules, we
affirm.
FACTS
Robert Herbruger was hired by Bellevue College in July 2014 as a
temporary employee in an Operations Support position with the campus.
Herbruger was transferred to a different five-month project position entitled Plant
Communications Coordinator with Campus Operations in February 2015. Shortly
after Herbruger assumed this new role, he was dismissed from employment. In
March 2015, the Washington Public Employee’s Associations (WPEA) helped
Herbruger file a Request for Director’s Review with the State Human Resources
Division related to the temporary support staff position which had ended in
February. Lane Hatfield worked with Herbruger as his WPEA representative and
continued to help him throughout his appeal to the State Human Resources
Director.
Herbruger requested “[r]emedial action of nonpermanent or temporary
appointment rules” for government employees under the Washington
Administrative Code. Herbruger asserted that his appointment to the project
position did not take effect until after he had worked 1,050 hours as a temporary
employee in the support staff position and as a result, he should have achieved
permanent status under the civil servant rules.1
1 Title 357 WAC.
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The Director’s office determined that Herbruger’s request for remedial
action was not timely because the temporary Operations Support position at
Bellevue College ended on February 5, 2015 and his request for review was
submitted more than 30 days later. The Director’s office also concluded that the
number of hours Herbruger had worked in the Operations Support position did not
exceed 1,050 hours and thus he did not meet the conditions for remedial action
under WAC 357-19-450.
Hatfield, acting on Herbruger’s behalf, appealed the Director’s
Determination to the Personnel Resources Board (PRB)2. In her May 22, 2015
letter asking the PRB to overturn the Director’s Determination, Hatfield argued that
Herbruger’s appeal was timely and that Bellevue College did not effectively
complete Herbruger’s change from a temporary appointment until after he had
surpassed 1,049 hours of work as a temporary employee. She asserted that he
therefore met the conditions for which the Director may take remedial action under
WAC 357-19-450. Herbruger requested a remedy directing Bellevue College to
appoint him to a “Plant Communications Coordinator” position with permanent
status, despite the fact that his appeal request was premised on his assertion that
he had accrued the requisite number of hours in a different position.
In early November 2015, the Assistant Attorney General (AAG)
representing Bellevue College had a telephone conversation with Hatfield about
withdrawing Herbruger’s appeal. Following the conversation, the AAG emailed
2 A body within the State Human Resources Division, Office of Financial Management.
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Hatfield the following as proposed language for a cover letter to accompany
Herbruger’s appeal withdrawal form to the PRB:
The parties are in agreement that Mr. Herbruger’s appeal number R-
RULE-15-003 will be withdrawn. Bellevue College will work with Mr.
Herbruger to resubmit his Request for Remedial Action for Director’s
Review. The college will not be objecting to Mr. Herbruger’s position
that he surpassed 1050 hours of work on February 9, 2015.
When the AAG asked Hatfield to confirm her satisfaction with the language,
Hatfield proposed the following change: instead of, “Bellevue College will work with
Mr. Herbruger to resubmit his Request for Remedial Action for Director’s Review,”
Hatfield proposed, “Bellevue College will work with Mr. Herbruger to complete the
employment process normally resulting from a successful, timely appeal.”
Another AAG representing Bellevue College replied to Hatfield:
I want to make sure that we understand your proposed language
correctly, though. As I read it, the language requires Bellevue to work
with Mr. Herbruger following a successful appeal, and not that
Bellevue ensures a successful appeal. With that understanding, I
think the language you have is good.
Hatfield responded:
Since we’re not talking about taking this back to the PRB but working
with Bellevue to look at potential job positions (since Bobby’s
previous work was apparently already completed) which is what they
would have done if the original Director’s appeal had been
successful. I was trying to find a way of describing that process of
looking for job options. I understand that we don’t know what we’ll
find at the end of the process.
The AAG replied, “That is an accurate summary of our conversation this morning.”
On November 13, 2015, Hatfield wrote to the Hearing Coordinator at the
PRB to notify the Board that Herbruger was withdrawing his appeal:
This letter and the accompanying withdrawal form should serve to
notify the Board of the withdrawal of appeal and settlement of the
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case in [Robert Herbruger v. Bellevue College] Case #R-RULE-15-
003.
The parties are in agreement that Mr. Herbruger’s appeal will be
withdrawn. Bellevue College will work with Mr. Herbruger to
complete the employment process normally resulting from a
successful, timely appeal.
The College does not object to Mr. Herbruger’s position that he
surpassed 1050 hours of work on February 9, 2015.
Both Hatfield and the original AAG with whom she had been working signed the
letter to the Board, but Herbruger did not.
Five days after Herbruger withdrew his appeal, the AAG notified Hatfield of
two open classified positions at Bellevue College. Hatfield forwarded that
communication to Herbruger asking him if “either of these positions is something
you’re qualified for?” Herbruger responded two days later, “After consideration
and thought, I request to be reinstated back into my position in Campus
Operations, a position for which I am well suited and qualified.”
Herbruger was placed on the layoff list at Bellevue College. Both Bellevue
College and WPEA attempted to determine whether Herbruger was qualified for
any open classified positions by repeatedly asking him to provide an updated
resume. Herbruger never provided one.
Herbruger later filed suit against Bellevue College for breach of contract and
due process violations by individuals at the college as a result of his dismissal from
employment. Early in the litigation, Bellevue College filed a CR 12(c) motion to
dismiss the 42 U.S.C. § 1983 claims Herbruger brought against the individual
defendants and the breach of contract claim. Herbruger opposed the motion and
argued the court should treat it as a motion for summary judgment under CR 56.
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The court dismissed the individual defendants under CR 12(c), but denied Bellevue
College’s motion to dismiss on the breach of contract claim after considering it
under a summary judgment standard.
Following discovery, Bellevue College moved for summary judgment on the
remaining breach of contract claim. Bellevue College’s position was that no
contract existed between the parties and that the school had met any obligations
to Herbruger that it may have owed. Following oral argument on the motion, the
court granted summary judgment in favor of Bellevue College and dismissed the
remaining claim. Herbruger now appeals.
ANALYSIS
Herbruger argues the trial court improperly granted Bellevue College’s
motion for summary judgment. He further assigns error to the form of the order
granting summary judgment, alleging that it fails to comport with the requirements
of CR 56 and lacked necessary findings, thus impacting review.
Before reaching the substance of Herbruger’s appeal, we address his
assignment of error as to form. Contrary to Herbruger’s assertion, CR 52(a)(5)(B)
expressly states that findings of fact and conclusions of law are unnecessary for
decisions on motions for summary judgment. “Any [findings] that are entered may
be disregarded on appeal, because summary judgment determines issues of law,
not issues of fact.” Redding v. Va. Mason Med. Ctr., 75 Wn. App. 424, 426, 878
P.2d 483, 484 (1994) (citing Duckworth v City of Bonney Lake, 91 Wn.2d 19, 586
P.2d 860 (1978)).
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Herbruger also argues that the trial court’s order granting summary
judgment in favor of Bellevue College does not indicate whether extrinsic evidence
was considered, specifically the unrelated remedial action appeal of another
person and Herbruger’s deposition testimony, therefore it did not comply with CR
56(h). That rule requires that “[t]he order granting or denying the motion for
summary judgment shall designate the documents and other evidence called to
the attention of the trial court before the order on summary judgment [is] entered.”
The order states “The Court has heard oral arguments and considered the files
and pleadings in this case” and then proceeds to specifically set out only two
additional documents: Bellevue College’s motion for summary judgment and a
declaration and attached exhibits in support of that motion. (Emphasis added).
The record confirms that the court also reviewed the documents regarding two
other appeals that Herbruger argues should have been considered and his own
deposition testimony. These documents were included as exhibits to the pleadings
of this case and the transcript of the hearing clearly demonstrates that the court
considered them.
A trial court’s failure to list in the summary judgment each declaration and
pleading considered is a technical error but a harmless one when the declarations
and pleadings are all included in the record on appeal. W.R. Grace & Co.—Conn.
v. Dept. of Revenue, 137 Wn.2d 580, 591, 973 P.2d 1011 (1999); Citibank S.D.
N.A. v. Ryan, 160 Wn. App. 286, 290 n. 1, 247 P.3d 778 (2011) (trial court order
was technically erroneous because it did not specifically list responsive materials
but error is harmless). Accordingly, while the court should have expressly included
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those documents in the enumerated list contained in the order granting summary
judgment, its failure to do so was harmless. However, despite this nonprejudicial
irregularity, we now consider whether the court’s ultimate ruling was proper.
This court reviews a grant of summary judgment de novo, engaging in the
same inquiry as the trial court. Gunnier v. Yakima Heart Ctr., Inc., 134 Wn.2d 854,
858, 953 P.2d 1162 (1998). The reviewing court “may affirm on any basis
supported by the record.” Redding, 75 Wn. App. at 426 (citing Hadley v. Cowan,
60 Wn. App. 433, 444, 804 P.2d 1271 (1991)). Summary judgment dismissal is
proper if no genuine issue as to any material fact exists and the moving party is
entitled to judgment as a matter of law. CR 56(c). “The facts and all reasonable
inferences are considered in the light most favorable to the nonmoving party, and
all questions of law are reviewed de novo.” Hollis v. Garwall, Inc., 137 Wn.2d 683,
690, 974 P.2d 836 (1999). “If reasonable minds can reach different conclusions,
summary judgment is improper.” Kalmas v. Wagner, 133 Wn.2d 210, 215, 943
P.2d 1369 (1997).
As made clear by the focus of the parties’ briefing and argument to the trial
court on summary judgment, the substantive issue before us is whether the
November 13, 2015 letter signed by Herbruger’s union representative and an AAG
representing Bellevue College constitutes an enforceable contract between the
parties. The essential elements of a contract are the subject matter, the parties,
the promise, the terms and conditions, and the price or consideration. DePhillips
v. Zolt Const. Co., Inc., 136 Wn.2d 26, 31, 959 P.2d 1104 (1998). A contract
requires offer, acceptance, and consideration; without such no valid contract
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exists. Veith v. Xterra Wetsuits, LLC, 144 Wn. App. 362, 366–67, 183 P.3d 334(2008). Acceptance is an expression of the intention to be bound by the offer’s
terms. Id. In a breach of contract claim, the burden is on the plaintiff to prove that
a valid agreement existed between the parties, the agreement was breached, and
the plaintiff was damaged. Lehrer v. Dep’t of Soc. & Health Servs., 101 Wn. App.
509, 516, 5 P.3d 722 (2000). In a motion for summary judgment, “[t]he moving
party is ‘entitled to a judgment as a matter of law’ because the nonmoving party
has failed to make a sufficient showing on an essential element of [their] case with
respect to which [they have] the burden of proof.” Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Guile v. Ballard
Community Hospital, 70 Wn. App. 18, 23, 851 P.2d 689, 692 (1993).
Washington follows the objective manifestation theory of contracts. Hearst
Commc’ns, Inc., v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005).
“Under this approach, we attempt to determine the parties’ intent by focusing on
the objective manifestations of the agreement, rather than on the unexpressed
subjective intent of the parties.” Id. “For a contract to exist, there must be a mutual
intention or ‘meeting of the minds’ on the essential terms of the agreement.”
Saluteen-Maschersky v. Countrywise Funding Corp., 105 Wn. App. 846, 851, 22
P.3d 804 (2001) (quoting McEachren v. Sherwood & Roberts, Inc., 36 Wn. App.
576, 579, 675 P.2d 1266 (1984)). The terms assented to must be sufficiently
definite. Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 178, 94 P.3d
945 (2004). “If an offer is so indefinite that a court cannot decide just what it
means, and fix exactly the legal liability of the parties, its acceptance cannot result
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in an enforceable agreement.” Sandeman v. Syres, 50 Wn.2d 539, 541, 314 P.2d
428 (1957). “[A]n agreement to do something which requires a further meeting of
the minds of the parties and without which it would not be complete is
unenforceable.” Id. at 541–42.
The body of the letter that Herbruger argues constitutes a contract reads as
follows:
This letter and the accompanying withdrawal form should serve to
notify the Board of the withdrawal of appeal and settlement of the
case in [Robert Herbruger v. Bellevue College] Case #R-RULE-15-
003.
The parties are in agreement that Mr. Herbruger’s appeal will be
withdrawn. Bellevue College will work with Mr. Herbruger to complete
the employment process normally resulting from a successful, timely
appeal.
The College does not object to Mr. Herbruger’s position that he
surpassed 1050 hours of work on February 9, 2015.
The crux of Herbruger’s argument is that these three sentences notifying the PRB
Hearing Coordinator of the withdrawal of his appeal were also intended to bind the
parties. The question for this panel is, to what? Here, the language “process
normally resulting from a successful, timely appeal” is vague at best. Based on
the four corners of the document, we cannot conclude that it clearly reflects mutual
assent to any agreed upon terms by which the parties intended to be bound.
Though Herbruger points to the remedial action set forth in WAC 357-19-450 as
defining “the employment process normally resulting from a successful, timely
appeal,” this cannot be discerned from the language contained in this letter. The
same is true as to Herbruger’s desire to raise results of two wholly separate PRB
appeals of other parties, which he continuously referenced throughout the
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negotiation and litigation. He contends that both the process set out in the WAC
and the procedural histories and outcomes of the appeals define the “process
normally resulting from a successful, timely appeal.”
Because this letter is vague on its face, it’s proper to consider parol
evidence. DePhillips, 136 Wn.2d at 32. “‘[P]arol evidence is admissible . . . for the
purpose of ascertaining the intention of the parties and properly construing the
writing.’” Id. (alterations in original) (internal quotation marks omitted) (quoting
Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990)). “[T]he ‘parol
evidence rule’ precludes use of parol evidence to add to, subtract from, modify, or
contradict the terms of a fully integrated written contract.” Id.Neither party disputes the email exchange between Hatfield and Davis,
which was properly considered as extrinsic evidence and goes to the question of
their mutual understanding. The email exchange makes clear that neither party
intended to be bound to a particular result, or even a specific process, and that this
letter merely memorialized the parties’ understanding that the appeal would be
withdrawn and Bellevue College would work with Herbruger to find a suitable
position if one was available. Hatfield expressly indicated “I understand that we
don’t know what we’ll find at the end of the process.” Further, the email thread
clearly demonstrates that Hatfield contacted Herbruger and indicated the
“employment process” in the letter “means working with Bellevue College to find
another equivalent job on campus.”
Herbruger now discusses WAC 357-19-450 and wishes the focus to be on
records regarding two completely separate appeals. However, this position
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ignores a key fact: the job to which Herbruger sought reappointment via remedial
action was a project position which the Director’s Review Program Investigator
expressly determined was not subject to such action under the WAC. Herbruger
does not attempt to explain why the WAC would guide the process here despite
this factual distinction from the successful remedial action appeals he presented
to the court. More importantly, however, there is nothing in the record before us
to suggest that Bellevue College agreed that either the WAC or the cited appeals
would guide their process with Herbruger. If the intention of the parties was to
have the sort of specificity that Herbruger posits, it is puzzling that neither the AAG
nor WPEA representative identified the rules they intended to guide this process
in the letter.
Even if the record suggested, as Herbruger asserts, these were in fact the
terms of the agreement with Bellevue College, Herbruger actively failed to
cooperate when Bellevue College reached out about other positions on campus.
Numerous depositions discuss Herbruger’s failure to provide a resume after
multiple inquiries from Bellevue College. Additionally, when Bellevue College sent
Herbruger information about two open classified positions and inquired if he was
qualified for either, he replied “After consideration and thought. I request to be
reinstated back into my position in Campus Operations, a position for which I am
well suited and qualified.” It is clear that Herbruger sought one position and one
position only, which was neither set out in the letter he now claims to bind the
parties, nor in the email thread preceding the letter. Even with the benefit of all
reasonable inferences as the non-moving party, the record is clear that
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Herbruger’s expectation was not communicated to Bellevue College during
discussions of the withdrawal of his appeal, so there cannot be mutual assent as
to this purported term.
As such, the November 13, 2015 letter does not constitute a valid contract
and the trial court did not err in dismissing the breach of contract claim on summary
judgment.
Affirmed.
WE CONCUR:
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