Mary Mitchell v. Soundview Investment Group ( 2016 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON.
MARY MITCHELL,
No. 71165-2-1
Appellant, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). While
Mitchell argued to the small claims court, both at trial and in her motion for relief
from judgment, that she did not receive the counterclaim, she failed to raise the
issue in her appeal to the superior court. An issue cannot be raised on a second
appeal if it could have been raised on the first appeal. State v. Sauve, 100 Wn.2d
84, 87, 666 P.2d 894 (1983).
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Mitchell argues that "[i]n a small claims trial... [t]he parties are not
required to make formal objections on the record to preserve them for appeal."
Br. of Appellant at 9. She cites no authority for this argument, however. RAP
2.5(a) contains no exception for review of small claims judgments or decisions.
Under RCW 12.36.055, the appeal from a small claims judgment shall be de
novo upon the record of the case, as entered by the district court. Itwould be
difficult, if not impossible, for an appellate court to review an issue that was not
part of the district court's record. Mitchell also argues that service is a
jurisdictional issue that may be raised for the first time on appeal. But as the
plaintiff, she has already submitted to the jurisdiction of the district court. There
are no jurisdictional issues that would enable Mitchell to raise the issue of service
of a counterclaim for the first time on appeal.
Even if Mitchell had properly preserved the issue for appeal, we would find
no error. The record contains evidence that Soundview complied with the court
rule and attempted to serve Mitchell with the counterclaim. Under CRLJ
5(a)(b)(1), "every pleading subsequent to the original complaint" shall be served
on an attorney or party "by delivering a copy to him or by mailing it to him at his
last known address...." If service is made by mail, "the papers shall be deposited
in the post office addressed to the person on whom they are being served, with
the postage prepaid. The service shall be deemed complete upon the third day
following the day upon which they are placed in the mail...." CRLJ 5(b)(2)(i).
Proof of service of all papers permitted to be mailed may be made by
written acknowledgment of service, by affidavit of the person who mailed the
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papers, or by certificate of an attorney. CRLJ 5(b)(2)(ii). Here, the record
contains a certified mail receipt dated August 7, 2013, and testimony from
Johnson that he mailed the claim to the post office box listed on the notice of
small claim. Upon proof of mailing, it is presumed that the mail proceeds in due
course and the letter is received by the person or entity to whom it is addressed.
Olson v. The Bon, Inc.. 144 Wn. App. 627, 634, 183 P.3d 359 (2008).
Mitchell argues that the small claims court erred by overlooking
Soundview's failure to have obtained a return receipt. But failure to make proof of
service does not affect the validity of the service, even for service of a summons
and complaint. CRLJ 4(h)(7); Jones v. Stebbins, 122 Wn.2d 471, 482, 860 P.2d
1009 (1993). Soundview has presented unrebutted evidence of mailing the
counterclaim; mere denials are insufficient to rebut the presumption of receipt.
Wash. Fed. Savings v. Klein. 177 Wn. App. 22, 28, 311, P.3d 53 (2013), review
denied, 179 Wn.2d 1019 (2014).
Furthermore, even if Mitchell were able to prove insufficient service of the
counterclaim, she cannot show that she was prejudiced. She argues that she
"could not prepare argument for court" against Soundview's argument that it
properly sanded the floor before treating it. Br. of Appellant at 13. Her claims
against Soundview, however, included breach of contract and filing of a false
lien. These claims required her to prove that Soundview did not fulfill its
expectations under the contract and that it had no basis to file a lien for amounts
owed for labor performed on April 3, 2013. Mitchell was not required to provide
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any new or additional arguments or evidence in order to defend against the
counterclaim.
Next, Mitchell argues that the district and superior courts erred in failing to
find that Soundview had made fraudulent misrepresentations based on its work
and/or its status as a contractor. According to Mitchell, Soundview denied its
failure to properly sand the floor before treating it, and also stated that it was a
bonded contractor when it was not.
Fraudulent misrepresentation requires proof by clear, cogent, and
convincing evidence of the nine elements of fraud: (1) representation of an
existing fact; (2) materiality; (3) falsity; (4) speaker's knowledge of its falsity; (5)
intent of the speaker that it should be acted upon by the plaintiff; (6) plaintiff's
ignorance of its falsity; (7) plaintiff's reliance on the truth of the representation; (8)
plaintiff's right to rely upon it; and (9) damages suffered by the plaintiff. Stilev v.
Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996).
Mitchell argues that Soundview, via Johnson, represented that it was a
contractor and that it would do the work on the floor. She also argues that
Johnson misrepresented his own status as a contractor to the small claims court.
The record contains no evidence that Johnson or anyone represented to Mitchell
that Soundview was a licensed general contractor, only Mitchell's testimony that
Johnson told her that he was a contractor. Even if such misrepresentations had
been made, Mitchell cannot demonstrate that either Soundview's or Johnson's
status was material to the contract. The purpose of the Contractor's Registration
Act is "to afford protection to the public including all persons, firms, and
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corporations furnishing labor, materials, or equipment to a contractor from
unreliable, fraudulent, financially irresponsible, or incompetent contractors." RCW
18.27.140. The act requires all contractors to provide the customer with proof of
registration with the Department of Labor and Industries, which includes
evidence of bonding and liability insurance. RCW 18.27.114.
Both Art and Soundview were parties to the contract with Mitchell; the
record contains undisputed evidence that Art did the work and was a licensed
and bonded contractor. Johnson was not a party to the contract. Mitchell could
therefore have filed a claim for substandard performance under the contract and
she would be protected by Art's bond. It is not required for Soundview or
Johnson to also be registered as a contractor, especially when there is no
dispute that Johnson was not a party and Soundview did not perform any work.
Mitchell argues that she spoke with Art personally and that a
representative told her that they "'had nothing to do with that contract'" and only
did the mirrors. Br. of Appellant at 14 (quoting VRP at 18). This testimony,
without more, is insufficient to establish that Soundview, not Art, performed the
work on the floors as an unlicensed contractor. The record contains a letter from
Art specifically stating that Soundview did none of the work and that Art agreed to
do the work for Mitchell as long as Soundview was involved in the billing and
customer communication. Mitchell's testimony about conversations she had with
other representatives of Art do not prove otherwise.
Mitchell also argues that Soundview committed fraud by claiming that it
properly sanded the floor. Again, the record contains no evidence that suggests
No. 71165-2-1/10
that Soundview and Art failed to perform the work specified in the contract in a
workmanlike manner. Mitchell has not carried her burden of showing that
Soundview made any false representation when it claimed to have fulfilled its
obligations under the contract.
We affirm the superior court, and decline to award fees to either party on
appeal.
Affirm.
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WE CONCUR:
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