Franklin R. Lacy v. Richard Rasmussen ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FRANKLIN R. LACY,
No. 71894-1-1
Appellant,
DIVISION ONE
v.
RICHARD RASMUSSEN, BETTY J.
RASMUSSEN, RASMUSSEN WIRE
ROPE & RIGGING CO., RASMUSSEN
EQUIPMENT CO., BILL JOOST, UNPUBLISHED OPINION
LANDMANN WIRE PRODUCTS,
WEISNER, INC., WEISNER STEEL
PRODUCTS, INC., FILED: July 20. 2015
Respondents.
SPEARMAN, C.J. — Franklin Lacy filed this action alleging injuries and
damages resulting from defective shackles that he used to secure his patented rough
water dock system. The trial court dismissed Lacy's claims, primarily on the basis
that they were time barred. Because Lacy fails to demonstrate any error, we affirm.
FACTS
Franklin Lacy appeals from trial court orders dismissing his claims against two
sets of defendants: (1) Rasmussen Wire Rope & Rigging Co., Rasmussen
Equipment Co., Richard Rasmussen, Betty J. Rasmussen, and Bill Joost (collectively
Rasmussen); and (2) Weisner, Inc., Weisner Steel Products, Inc., and Landmann
Wire Rope Products, Inc. (collectively Weisner and Landmann).
Lacy patented a rough water dock system in 1991. In 1995, he contacted
Rasmussen Wire Rope & Rigging Co. and spoke with Bill Joost. Lacy ordered
double braided nylon line and hot-dipped galvanized shackles from Rasmussen to
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secure the dock system. Lacy acknowledged the invoice stated that it was subject to
the conditions set forth on the reverse side and that he read the terms and
conditions.
Lacy installed the dock system, which originally consisted of five docks, on his
Friday Harbor property in 1996. Lacy spent about six months each year in Friday
Harbor and the remainder of the year in Hawaii.
In 2002, Lacy determined that the galvanized shackles were not lasting as
long as he hoped and switched to type 304 stainless steel shackles that he
purchased from Rasmussen. In 2003, the dock failed, causing three sections to
separate and land on the rocks. In his deposition, Lacy acknowledged that the
shackles were the cause of the failure:
The only thing it could be is the shackles. You have the intact eye bolt
under the dock, and it hadn't gone anywhere, other than going with the
dock. ... So it didn't deteriorate at all. It's in perfect shape. And you
are able to check enough of the dock lines that you can find to see that
they haven't deteriorated. You find the end of it that would attach to the
shackle. And so if that side's good and if the other side's good, what
you're coupling has to be the problem.1
The dock system failed again in 2004, causing additional damage. Lacy
repaired the system using only four docks.
In about early 2005, Lacy noticed that the dock system was moving out of
place. Lacy injured his knee while attempting to prevent further damage. After this
1 Clerk's Papers (CP) at 996.
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incident, Lacy reinstalled only one section of the dock, leaving the remaining four
sections on the beach.
In the summer of 2006, the remaining dock rotated, but did not release. Upon
inspection, Lacy noticed that the shackles were missing.
In the summer of 2007, Lacy noticed essentially the same problem, but he
secured the dock with extra lines to prevent a release. When he returned in the
summer of 2008, Lacy again noticed that the shackles had failed, although the
reserve lines had held the dock in place. At this time, a diver discovered a "shackle
with the eaten-away hasp"2 hanging on one of the dock's eye bolts. Following this
discovery, Lacy soaked the remaining shackles in salt water. By June 2009, the
shackles had dissolved.
Beginning in 2008, Lacy purchased type 316 stainless steel shackles from
Rasmussen. He observed no problems with those shackles from 2008 to 2013.
Lacy filed this action for damages against Rasmussen on August 11, 2010.
The complaint alleged claims for misrepresentation, breach of implied warranty,
negligence, damages to patent, reckless and constructive endangerment, and
constructive sabotage. Among other things, Lacy alleged that Rasmussen had
misrepresented the quality of the shackles, causing approximately $25,000,000 in
damages.
2 CP at 1010.
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On August 26, 2011, the trial court granted Lacy leave to add additional
defendants, including Weisner and Landmann. Lacy alleged that Weisner and
Landmann were in the "chain of ownership and purchase of the shackles."3
Lacy served a purported summons and complaint on Weisner and Landmann
in late January 2012. On May 7, 2012, both Weisner and Landmann moved to
dismiss under CR 12(b)(6).
Lacy did not file an amended complaint until May 21, 2012. He then filed an
"expanded amended complaint" on May 24, 2012, and a motion to "approve the
expanded amended complaint" on May 25, 2012.
Following a hearing on June 15, 2012, the trial court granted Weisner's and
Landmann's motions to dismiss, concluding that Lacy's claims were barred by the
statute of limitations. The trial court denied the motion to approve the expanded
amended complaint as moot.
On March 14, 2014, the trial court granted Rasmussen's motion for partial
summary judgment and dismissed the majority of Lacy's claims. The trial court
concluded that (1) Lacy's claims for shackles purchased from Rasmussen before
August 11, 2006, were time barred; (2) Lacy's claims for consequential damages and
lost profits were precluded by the terms of the sales contract and the absence of any
admissible supporting evidence; (3) Lacy's tort claims for events occurring prior to
August 11, 2007, were time barred; (4) Lacy's tort claims for the 2008 failure were
3 CP at 92.
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precluded by the independent duty doctrine; and (5) the Rasmussen defendants did
not owe Lacy a fiduciary duty.
The court allowed Lacy to amend his complaint to add additional claims,
including alleged violations of the Consumer Protection Act and the Uniform
Commercial Code. Lacy later moved to amend the partial summary judgment order
to a final order of dismissal, explaining that the trial court had already effectively
denied all of his claims. On June 30, 2014, the trial court granted the motion and
dismissed all of Lacy's claims with prejudice. The court awarded Rasmussen
approximately $64,000 in attorney fees.
DISCUSSION
Much of Lacy's briefing on appeal is rambling, disjointed, and unsupported by
any coherent legal theory or citation to the appellate record or relevant authority. The
briefs also contain numerous violations of RAP 10.3(a)(6), which requires a party to
provide "argument in support of the issues presented for review, together with
citations to legal authority and references to relevant parts of the record." RAP
10.3(a)(6).
In lieu of legal argument on appeal, Lacy repeatedly attempts to incorporate
pleadings directed to the trial court by inviting this court to review hundreds of pages
of the clerk's papers. This we decline to do. See In re Guardianship of Lamb, 173
Wn.2d 173, 183, 265 P.3d 876 (2011) (party waives issue not fully argued in
appellate brief; Washington courts have repeatedly rejected attempts by litigants to
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incorporate by reference arguments raised only in the trial court). Nor will we search
through the record for evidence relevant to a litigant's arguments. See Mills v. Park,
67 Wn.2d 717, 721, 409 P.2d 646 (1966).
In the trial court and on appeal, Lacy has blamed others for his inability to
follow court rules and clear legal authority. But even though Lacy is representing
himself pro se, we must hold him to the same standards as an attorney. See In re
Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993). Consequently, the
failure to comply with all procedural rules may preclude review. Id,
Standard of Review
To the extent that Lacy is challenging the trial court's dismissal of his claims
on summaryjudgment, our review is de novo. We consider the materials before the
trial court and construe the facts and inferences in the light most favorable to the
nonmoving party. Hubbard v. Spokane County, 146 Wn.2d 699, 706-07, 50 P.3d 602(2002). Summary judgment is proper only if there is no genuine issue of material
fact. CR 56(c); Hubbard, 146 Wn.2d at 707.
Lacy appears to raise the following issues on appeal:
Sales of Shackles Before 2006
Relying on Architechtonics Constr. Management. Inc. v. Khorram, 111 Wn.
App. 725, 45 P.3d 1142 (2002), Lacy asserts that the statute of limitations did not
commence until June 2009 when he discovered that his remaining shackles had
dissolved in buckets of salt water. But in Washington, Article 2 of the Uniform
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Commercial Code (UCC) generally governs the sale of goods. See RCW 62A.2-102
(UCC covers all "transactions in goods"). The UCC statute of limitations provides
that "[a]n action for breach of any contract for sale must be commenced within four
years after... the breach occurs, regardless of the aggrieved party's lack of
knowledge of the breach." RCW 62A.2-725(1)(2) (emphasis added). Our Supreme
Court has rejected the analysis in Architechtonics and held that, absent exceptions
not applicable here, the discovery rule does not apply to breach of contract claims.
1000 Virginia Ltd. P'ship v. Vertecs Corp.. 158 Wn.2d 566, 578-83, 146 P.3d 423(2006). Because Lacy filed this action on August 10, 2010, the trial court did not err
in concluding that contract claims accruing before August 11, 2006 were time barred.
Events Occurring Before August 11. 2007
Lacy alleged claims against Rasmussen for breach of warranty,
misrepresentation, and negligence, all arising out of Rasmussen's sale of the
defective shackles. In Washington, the Washington Product Liability Act (WPLA),
chapter 7.72 RCW, is the exclusive remedy for product liability claims. Wash. State
Physicians Ins. Exch. & Ass'n v. Fisons Corp.. 122 Wn.2d 299, 322-23, 858 P.2d
1054 (1993); Wash. Water Power Co. v. Gravbar Elec. Co.. 112 Wn.2d 847, 853, 774
P.2d 1199,779 P.2d 697 (1989). A product liability claim under the WPLA "preempts
any claim or action that previously would have been based on any 'substantive legal
theory except fraud, intentionally caused harm or a claim or action brought under the
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No. 71894-1-1/8
consumer protection act, chapter 19.86 RCW.'" Bvlsma v. Burger King Corp.. 176
Wn.2d 555, 559, 293 P.3d 1168 (2013) (quoting RCW 7.72.010(4)).
The statute of limitations under the WPLA is three years. RCW 7.72.060(3).
Lacy's tort claims for damages and injuries occurring before August 11, 2007, are
therefore barred.
Lacy maintains that the discovery rule tolled the statute of limitations until June
2009, when he determined that the shackles were dissolving in salt water. But under
the discovery rule, the plaintiff must show that he or she could not have discovered
the relevant facts earlier. Giraud v. Quincv Farm and Chemical. 102 Wn. App. 443,
449, 6 P.3d 104 (2000). "'[Wjhen a plaintiff is placed on notice by some appreciable
harm occasioned by another's wrongful conduct, the plaintiff must make further
diligent inquiry to ascertain the scope of the actual harm. The plaintiffis charged with
what a reasonable inquiry would have discovered.'" 1000 Virginia Ltd. P'ship, 158
Wn.2d at 581 (quoting Green v. A.P.C.. 136 Wn.2d 87, 96, 960 P.2d 912 (1998)).
Here the evidence was undisputed that Lacy knew the shackles were
repeatedly failing as early as 2003. Lacy provides no evidence or plausible argument
suggesting why, after exercising due diligence, he could not have determined the
cause of the failure. Lacy fails to demonstrate any material factual dispute regarding
application of the discovery rule to the events occurring before August 2007.
Lacy appears to allege that the statute of limitations was also tolled by
fraudulent concealment. See generally Giraud. 102 Wn. App. at 452. But because
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he offers nothing more than conclusory allegations to support this claim, we decline
to consider it.
Consequential Damages
Lacy contends that the trial court erred in dismissing his claims for
consequential damages and lost profits. His primary argument appears to be that the
defective shackles prevented him from licensing his patent to dock builders.
Although Lacy need not establish the precise amount of damages, "the
evidence or proof of damages must be established by a reasonable basis and it must
not subject the trier of fact to mere speculation or conjecture." ESCA Corp. v. KPMG
Peat Marwick. 86 Wn. App. 628, 639, 939 P.2d 1228 (1997). Lacy acknowledged
that all of his income since 2000 has been from investments. On appeal, he fails to
identify any admissible evidence in the record suggesting that the defective shackles
prevented him from marketing his patent or otherwise supporting his claims for
consequential damages and lost profits resulting from the defective shackles. See
Tacoma Auto Mall. Inc. v. Nissan North America. Inc.. 169 Wn. App. 111, 135, 279
P.3d 487 (2012) (to establish lost profits, parties must demonstrate that they would
have earned the claimed profits but for the defendant's breach).
A party cannot defeat summary judgment by relying solely on "conclusory
allegations, speculative statements or argumentative assertions." Las v. Yellow Front
Stores. Inc.. 66 Wn. App. 196, 198, 831 P.2d 744 (1992). Rather, the party must
identify specific, admissible evidence that demonstrates a genuine issue. JdL Lacy
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failed to demonstrate a genuine factual issue as to consequential damages and lost
profits.4
Independent Duty Doctrine
Lacy contends the trial court erred in concluding that his tort claims for
damages arising from the 2008 dock failure are barred by the independent duty
doctrine. Under the independent duty doctrine, "'[a]n injury' ... is remediable in tort if
it traces back to the breach of a tort duty arising independently of the terms of the
contract." Eicon Const.. Inc. v. Eastern Washington Univ.. 174 Wn.2d 157, 165, 273
P.3d 965 (2012) (quoting Eastwood v. Horse Harbor Found.. Inc., 170 Wn.2d 380,
389, 241 P.3d 1256 (2010)). Our Supreme Court has directed lower courts not to
apply the doctrine to tort remedies "'unless and until this court has, based upon
considerations of common sense, justice, policy and precedent, decided otherwise.'"
Eicon. 174 Wn.2d at 165 (quoting Eastwood. 170 Wn.2d at 417 (Chambers, J.,
concurring)).
In any event, however, Lacy has not presented any coherent legal argument
establishing the existence and nature of Rasmussen's alleged breach of tort duties.
We therefore decline to address Lacy's challenge. See Saunders v. Lloyd's of
London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will decline to
4 Because Lacy failed to identify a factual issue as to consequential damages, we need
not address the validity of the consequential damage limitation in the parties' sales
agreement.
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consider issues unsupported by cogent legal argument and citation to relevant
authority).
Attorney Fees
The trial court awarded Rasmussen attorney fees based on the terms and
conditions of the sales invoices, which provided that the "prevailing party in any suit,
or proceeding shall be entitled to recover reasonable attorney fees." In his
deposition, Lacy acknowledged that when he first started purchasing items from
Rasmussen, the invoice stated that it was subject to the "conditions set forth on the
reverse side"5 and that he then read the terms and conditions on the reverse side.
On appeal, Lacy contends that he was not told in advance that Rasmussen
would be seeking attorney fees and that the terms and conditions were difficult to
read. These contentions are irrelevant and, in any event, at odds with Lacy's own
deposition testimony.
Lacy further claims that the terms and conditions applied only to the sale or
rental of "equipment" and therefore did not apply to Rasmussen's sale of "goods."
But Lacy makes no showing that this distinction affects the validity of the attorney fee
provision, which applies to the "prevailing party in any suit."
Finally, for the first time in his response to Rasmussen's motion for attorney
fees, Lacy alleged that he had written an objection to the terms and conditions on an
5 CP at 1015.
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No. 71894-1-1/12
invoice. But Lacy has not identified any evidence in the record supporting this
assertion.
Dismissal of Weisner and Landmann
Lacy also assigns error to the trial court's dismissal of his claims against
Weisner and Landmann. He alleges that Rasmussen fraudulently concealed the
identity of the new defendants and that the trial court gave him "a year to file his
summons and complaint" involving Weisner and Landmann.6 Under the WPLA,
Lacy's claims against Weisner and Landmann related to the sale of the shackles
were subject to the three-year statute of limitations. See RCW 7.72.060.
In attempting to add them as defendants, Lacy never identified the specific
nature of Weisner's and Landmann's alleged liability. He alleged that they were in
the "chain of ownership and purchase" but raised no specific allegations against them
in the amended complaint.
At the June 15, 2012 hearing on the motion to dismiss, Lacy conceded that his
claim arose in August 2008. He also acknowledged that he was aware of Weisner's
and Landmann's identities by May 2011, well before the statute of limitations expired.
Nonetheless, Lacy did not serve Weisner and Landmann with an amended summons
and complaint until January 2012, after the statutory period had expired, and did not
file the amended complaint until May 2012. Lacy's assertion that Rasmussen's
Appellant's Br. at 45.
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No. 71894-1-1/13
fraudulent concealment prevented timely commencement of the action is therefore
meritless.
Lacy's contention that the trial court gave him a year to file the amended
summons and complaint is frivolous. At the August 26, 2011 hearing on Lacy's
motion for leave to add the new defendants, Lacy asked about setting the trial date
and a discovery cut off deadline. The court informed Lacy that the trial date had not
yet been set and that there was no discovery cut off date. At this point, the court
observed that "ifthere's no action at all, just nothing happens for 12 months,"7 the
court clerk would send out a 30-day dismissal notice. Nothing in the court's
comments referred to the filing of an amended complaint.
Remaining Allegations
Lacy's remaining allegations, including assertions that Rasmussen doctored
evidence and breached a fiduciary duty and that the trial court took "shortcuts"8 and
failed to consider all of his arguments and evidence, are irrelevant, unintelligible, or
too conclusory to address. Lacy has raised numerous new allegations and
arguments in his reply brief. An issue "raised and argued for the first time in a reply
brief is too late to warrant consideration." Cowiche Canyon Conservancy v. Bosley,
118 Wn.2d 801, 809, 828 P.2d 549 (1992) (citing In re Marriage of Sacco, 114 Wn.2d
1,5, 784P.2d 1266(1990)).
7 Verbatim Report of Proceedings (VRP) (08/26/11) at 7.
8 Appellant's Br. at 1.
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Attorney Fees on Appeal
As the prevailing party, Rasmussen is entitled to an award of attorney fees on
appeal. The request is granted. See RAP 18.1(a).
Weisner and Landmann request an award of attorney fees for a frivolous
appeal. See RAP 18.9(a). An appeal is frivolous "if the appellate court is convinced
that the appeal presents no debatable issues upon which reasonable minds could
differ and is so lacking in merit that there is no possibility of reversal." In re Marriage
of Foley. 84 Wn. App. 839, 847, 930 P.2d 929 (1997). That standard is satisfied
here. Not only has Lacy mischaracterized some of the facts underlying his attempts
to add Weisner and Landmann as defendants, but he made no reasonable attempt to
challenge the legal basis for the trial court's decision.
Rasmussen, Weisner and Landmann are awarded attorney fees on appeal,
subject to compliance with RAP 18.1(d).
Affirmed.
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