Walter L. Tamosaitis, PhD, et ux v. Bechtel National Inc. ( 2014 )

FILED
JULY 01, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
I WALTER L. TAMOSAITIS PHD, an
individual, and SANDRA B.
TAMOSAITIS, representing the marital
community,
)
)
)
)
No. 31451-1-111
(consolidated with
No. 31789-7-111)
)
Appellants, )
)
v. ) PUBLISHED OPINION
)
BECHTEL NATIONAL, INC., a Nevada )
Corporation, URS CORPORATION, a )
Nevada Corporation, FRANK RUSSO, an )
individual, GREGORY ASHLEY, an )
individual, WILLIAM GAY, an )
individual, DENNIS HAYES, an )
individual, and CAMI KRUMM, an )
individual, )
)
Respondents. )
KORSMO, 1. - After a series of escalating professional disagreements and souring
interpersonal relationships, Dr. Walter Tamosaitis was reassigned by his employer at the
request of the project's general manager, Bechtel National, Inc. (Bechtel), but did not
lose any pay. Dr. Tamosaitis then brought state, federal, and administrative suits against
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I numerous defendants, including this state court action against Bechtel and its employees
Frank Russo and Gregory Ashley, for intentional interference with a business
relationship. Because Dr. Tamosaitis failed to carry his burden of production with regard
to proof of damages, we affinn. I
FACTS
Dr. Tamosaitis spent more than 40 years working in the chemical and nuclear
industries, working for URS Corporation, its predecessors, and its subsidiaries during
most of that time. Most recently, Dr. Tamosaitis worked for URS Energy and
Construction, Inc. In 2003, Dr. Tamosaitis moved to Washington State to work for URS
on its contract at the Hanford Waste Treatment Plant (WTP). From 2003 to 2010, he
helped manage design and construction at the Hanford Nuclear Reservation.
The design and construction of the WTP is a federal project under the purview of
the United State Department of Energy (DOE). Bechtel is DOE's prime contractor on
this project. URS in tum is a subcontractor for Bechtel.
Prior to the reassignment at issue, Dr. Tamosaitis served as manager of the
project's Research and Technology Group. Throughout 2009 and 2010, this group was
I Although we doubt Dr. Tamosaitis's ability to satisty other elements of his cause
of action, we do not address those elements in an effort to avoid cluttering the reporter
volumes with dicta. Discussion of the other elements would not provide guidance to
future litigants given the unique and highly fact specific nature of this case. Accordingly,
we do not address the other arguments and nothing in this opinion should be read as
endorsing the other elements at issue in this case.
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Tamositis v. Bechtel Nat 'I
responsible for closing "M3." M3 was the last ofa group of major issues identified in
2005-06 by a DOE review team (which included Dr. Tamosaitis) that needed to be solved
before other parts of the WTP's design and construction could proceed.
In early 2010, Bechtel made a number of management changes on its end of the
project. Bechtel made Frank Russo the director of the WTP and moved Gregory Ashley,
another Bechtel employee, under Mr. Russo's direct supervision. Mr. Ashley had
previously been under the supervision of assistant director Bill Gay, a URS employee.
For a number of reasons, Dr. Tamosaitis could not establish a good professional
relationship with Mr. Russo and Mr. Ashley. One large impediment was the increasing
pressure on Bechtel to close the M3 issue. In April of2010, DOE decided to condition
an approximately $5,000,000 incentive fee on Bechtel's ability to close M3 on June 30,
2010. Bechtel also hoped that timely closure of all of the review team issues would
persuade Congress to allocate an additional $50,000,000 to the WTP.
It initially appeared that M3 would close on schedule. However, an unexpected
problem arose in the spring of 20 10 when outside engineers found a flaw in the testing
parameters that were used to validate the design functionality of the pulse jet mixers that
were to be installed at the WTP. Dr. Tamosaitis and a number of other engineering
professionals concurred in this finding and called for additional testing.
Additional testing, however, would have prevented the timely closure of the M3
issue and jeopardized additional federal funding. Because Bechtel wanted nothing more
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No. 31451-1-III; No. 31789-7-III
Tamositis v. Bechtel Nat 'I
than to close M3 on time, Dr. Tamosaitis's concurrence in the call for additional testing
put him at loggerheads with Bechtel. To keep the M3 closure on schedule, Mr. Russo
solicited contrary opinions from other professionals, and also tried to get some of the
dissenting professionals to retract their opinions. This did not sit well with Dr.
Tamosaitis, but ultimately Bechtel and Mr. Russo prevailed in getting closure of the M3
issue on June 30, 2010.
That same day, Mr. Russo sent an e-mail to the entire M3 team, congratulating
them on a job well done. The next day, Dr. Tamosaitis privately commented via e-mail
about Mr. Russo's e-mail to some of the consultants and professionals who had supported
his position. This e-mail contained some language about the Consortium for Risk
Evaluation with Stakeholder Participation (CRESP), one of the outside organizations that
advised Bechtel on the M3 closure issue. Dr. Tamosaitis's comments ended up being
forwarded to CRESPo CRESP's director found Dr. Tamosaitis's comments disparaging
and a misrepresentation of its position with regard to M3.
CRESP expressed these concerns to Mr. Ashley, who then called Mr. Russo and
asked him to get Dr. Tamosaitis kicked off the WTP project. Mr. Russo then sent an e-
mail to URS's Bill Gay, saying, "Walt[er Tamosaitis] is killing us" and "Get him into
your corporate office today." CP at 1763, 1765. Mr. Gay removed Dr. Tamosaitis from
his role at the WTP.
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Tamositis v. Bechtel Nat 'I
URS did not terminate Dr. Tamosaitis's employment and he did not lose any pay
as a result of the reassignment. However, Dr. Tamosaitis did lose some books and other
personal items of value when Bechtel and URS prohibited him from returning to his WTP
office after the reassignment. Dr. Tamosaitis's removal also negatively affected his
mental health, causing him to start taking depression and anxiety medication. Dr.
Tamosaitis further claimed that his removal negatively affected his professional
reputation throughout the sphere of DOE contractors and prevented him from advancing
to URS's executive pay grades. Finally, Dr. Tamosaitis presented some evidence
suggesting that his removal resulted in him not being considered for some other positions
at the WTP, although there was no evidence showing that any of these positions would
have resulted in higher payor benefits.
A few months after his removal and reassignment, Dr. Tamosaitis brought this
cause of action against Bechtel, Mr. Russo, and Mr. Ashley for intentional interference
with his business relationship with URS-specifically, tortious interference with Dr.
Tamosaitis's employment relationship with URS. After a period of discovery and a
failed attempt to remove this case to federal court, the defendants brought a motion for
summary judgment. The trial court granted summary judgment on a number of grounds
and Dr. Tamosaitis appealed. He initially sought direct review by the Supreme Court, but
the motion was denied and the Supreme Court transferred the case to this court per RAP
4.2(e)(l).
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Tamositis v. Bechtel Nat 'I
While this appeal was pending, URS informed Dr. Tamosaitis in early 2013 that
he would not be receiving an incentive pay bonus for the first time in his history with the
company. URS stated that reinstatement of incentive pay would be conditioned on Dr.
Tamosaitis obtaining an assignment on another URS contract. Dr. Tamosaitis had not
worked on another URS contract since shortly after leaving the WTP. However, he still
received incentive pay in 20 II and 2012.
Dr. Tamosaitis then moved in superior court for CR 60 relief based on his new
evidence of damages. The court denied the motion and Dr. Tamosaitis appealed that
decision to this court. The two appeals were consolidated.
After the consolidation, URS formally terminated Dr. Tamosaitis's employment in
October 2013. Dr. Tamosaitis moved in his brief to supplement the record with evidence
of his termination. Bechtel moved to strike the brief containing the materials.
ANALYSIS
We address, in order, the summary judgment ruling, the motions relating to
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Tamositis v. Bechtel Nat 'I
supplementation of the record, and the order denying CR 60 relief. 2
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Summary Judgment
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I Review of summary judgment is pursuant to well understood principles. The
appellate court engages in the same inquiry as the trial court. Mountain Park
Homeowners Ass 'n v. Tydings, 125 Wn.2d 337,341, 883 P.2d 1383 (1994). "This court
will affirm summary judgment if no genuine issue of any material fact exists and the
moving party is entitled to judgment as a matter of law." Id. "All facts and reasonable
inferences are considered in the light most favorable to the non-moving party, and all
questions oflaw are reviewed de novo." Id. However, "a question of fact may be
determined as a matter of law when reasonable minds can reach only one conclusion."
Miller v. Likins, 109 Wn. App. 140, 144,34 P.3d 835 (2001).
2 RAP 10A(b) limits a respondent's brief to no more than 50 pages. Although the
respondents' initial brief contains exactly 50 full pages, its excessive use of footnotes, 47
in all, is clearly intended to circumvent the page limits set by RAP 1OA(b). Many of
these footnotes take up a third of a page or more, and contain core facts and substantive
argument intended to directly support the respondents' argument for affirming summary
judgment. Had the respondents put these items in the body of their brief, the brief would
have greatly exceeded the 50 page limit.
We have repeatedly told parties to make their argument in the body of their brief,
not their footnotes. State v. Harris, 164 Wn. App. 377, 389 n.7, 263 P.3d 1276 (2011);
State v. NE., 70 Wn. App. 602, 606 n.3, 854 P.2d 672 (1993); State v. Johnson, 69 Wn.
App. 189, 194 nA, 847 P .2d 960 (1993). We have also rejected attempts to circumvent
the page limits by trying to incorporate by reference pages from arguments made at the
trial court. Diversified Wood Recycling, Inc. v. Johnson, 161 Wn. App. 859, 890,251
P.3d 293 (2011). While the complicated nature of this case likely justified the need for
over-length briefing, we have rules for seeking permission to file an over-length brief.
RAP lOA(b).
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1
"To prove tortious interference, the plaintiff must produce evidence sufficient to
support all the following findings: (1) the existence of a valid contractual relationship or
business expectancy; (2) the defendant's knowledge of and intentional interference with
that relationship or expectancy; (3) a breach or termination of that relationship or
expectancy induced or caused by the interference; (4) an improper purpose or the use of
improper means by the defendant that caused the interference; and (5) resultant damage."
Eugster v. City ofSpokane, 121 Wn. App. 799,811,91 P.3d 117 (2004). As previously
stated, we solely address the final element of damages.
Bechtel primarily argues that the "resultant damage" element requires some
evidence of damages that are of pecuniary value and cites to Washington cases that stated
as much in passing. See e.g., Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins.
Grp., Inc., 114 Wn. App. 151, 158,52 P.3d 30 (2002). We now expressly hold that a
claim of tortious interference with a business expectancy requires a threshold showing of
resulting pecuniary damages.
Washington courts have had few opportunities to consider what types of damages
are compensable under this tort and none of those cases have dealt with the issue of
whether anyone type of damages must be present as a threshold matter. See Cherberg v.
Peoples Nat 'I Bank of Wash., 88 Wn.2d 595,564 P.2d 1137 (1977) (emotional distress);
Mutual ofEnumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 315 P.3d 1143(2013) (loss of reputation), review denied, 180 Wn.2d 1011 (2014).
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Tamositis v. Bechtel Nat 'I
In the absence of local authority, the Washington State Supreme Court has
historically relied on the provisions of the Restatement (Second) ofTorts to guide the
development of this tort in Washington. See, e.g., Sea-Pac Co., Inc. v. United Food and
Commercial Workers Local Union 44,103 Wn.2d 800,699 P.2d 217 (1985); Calbom v.
Knudtzon, 65 Wn.2d 157,396 P.2d 148 (1964). Recently, Division Two of this court
partially adopted the Restatement's damages section for this tort. Mutual ofEnumclaw,
178 Wn. App. at 714. Following these examples, we too look to the Restatement for
guidance.
The Restatement expressly characterizes this tort as one stemming from wrongful
interference with a business relationship that would be of pecuniary value. Restatement
(Second) ofTorts § 766B cmt. c (1979). The Restatement goes on to explain that this tort
generally does not cover other noncommercial relationships such as "interference with
personal, social and political relations." Id. In some states, a similar tort has been
recognized for tortious interference with some noncommercial activities, including
interference with gift or inheritance, interference with winning a prize contest, and
interference with obtaining benefits from natural resources. See id. § 774B and
accompanying Special Note. However, the Restatement notes that each of these
noncommercial activities involves some element of measurable pecuniary value. Id. §
766B cmt. c.
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Restatement § 766(B), cmt. (g), concerning the tort of interference with a business
expectancy, directs the reader to Restatement § 766, cmt. (t), which addresses the related
tort of interference with a contract. That comment expressly provides:
The cause of action is for pecuniary loss resulting from
interference. Recovery may also be had for consequential
harms for which the interference was a legal cause.
Restatement (Second) ofTorts § 766 cmt. (t) (1979) (emphasis added).
We conclude that the Restatement contemplates pecuniary loss as a threshold
element for recovery under the tort of interference with a business relationship just as it is
for the tort of interference with a contract. Additional damages may be recoverable in
conjunction with the pecuniary loss.
Dr. Tamosaitis has not provided this court with any cases or other authority
supporting his position. He cites Cherberg to show that other forms of damages are
compensable under this tort. However, even the plaintiff in Cherberg showed some
minimal pecuniary loss, $3,100 in lost profits, before obtaining secondary forms of
damages. Cherberg, 88 Wn.2d at 600. The plaintiff in Mutual ofEnumclaw also
suffered some pecuniary loss, $530 in lost profits. Mutual ofEnumclaw, 178 Wn. App. at
710, 725.
Courts outside of Washington have dismissed lawsuits brought under this tort for
the plaintiff s failure to prove any pecuniary loss. In at least one reported case a court
dismissed a cause of action under this tort at summary judgment because the employees,
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Tamositis v. Bechtel Nat 'I
who were wrongfully suspended, did not lose any pay. Kent v. Iowa, 651 F. Supp.2d
910, 961 (S.D. Iowa 2009). The court observed that while the investigation, discipline,
and rumor mill concerning certain allegations made the employees' jobs more difficult to
perform, the fact that they still remained employed and had not lost any pay during the
investigation precluded their cause of action due to a lack of pecuniary loss. Id. Kent is
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The Appeals Court of Massachusetts addressed the necessity for proof of
pecuniary loss resulting from interference with a business expectancy in Tech Plus, Inc.
v. Ansel, 59 Mass. App. Ct. 12, 793 N.E.2d 1256 (2003). There a trial court had set aside
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a verdict in favor of the plaintiff for interference with a business expectancy due to
failure to prove pecuniary loss. Id. at 1260. Citing earlier rulings, the appellate court
affirmed on the basis that plaintiff had failed to establish the pecuniary loss element of
the tort. Id. at 1262-263.
In another case, Pennsylvania's intermediate appellate court affirmed a dismissal
where the plaintiff could only demonstrate reputational harm. Pelagatti v. Cohen, 370
Pa. Super. 422, 435-36, 536 A.2d 1337 (1987). As the Pelagatti court aptly observed:
"In the absence of pecuniary loss, an action for interference with contract brought for the
purpose of recouping damages for loss of reputation only, would be nothing more than a
defamation action under a different caption." Pelagatti, 370 Pa. Super. at 436.
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In Massachusetts, an appellate court reversed a jury verdict in favor of the plaintiff
under this tort and ordered entry ofjudgment in favor of the defendant. Ratner v. Noble,
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35 Mass. App. Ct. 137,617 N.E.2d 649 (1993). The appellate court reversed the verdict
I because there had been no evidence of pecuniary loss. Id. at 138-39. The plaintiff
apparently only suffered reputational and possibly some emotional harm. Id. at 138.
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In the absence of any pecuniary loss, we hold that Dr. Tamosaitis's emotional
1 harm and speculative reputational harm are not recoverable under this tort. Recognizing
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this difficulty, Dr. Tamosaitis claims that the loss of his books and personal effects
I should satisfy the element of pecuniary loss. While these belongings are of obvious
I pecuniary value, their loss lacks any causal relation to the elements of this tort.
"[T]he essence of the tort is damage to a business relationship or contemplated
contract of economic benefit." Ratner, 35 Mass. App. Ct. at 138; Restatement § 766B.
Dr. Tamosaitis's cause of action is for harm to his employment relationship with URS.
Dr. Tamosaitis's books have no relationship to the conditions of his employment. While
these two losses arose out of a common nucleus of facts, they are separate and distinct.
Dr. Tamosaitis could have stated a replevin or conversion claim against Bechtel in his
same complaint, but it does not mean that he can merge two distinct torts into one. See
CR 18; Murphy v. Prosser, 96 Wash. 499,501,165 P. 390 (1917).
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Having not established that he suffered pecuniary losses from the reassignment,
Dr. Tamosaitis's action against Bechtel necessarily failed. Accordingly, we affirm the
lower court's grant of summary judgment for the defendants.
Record Arguments
Before reaching the merits of the CR 60 issue, we must first resolve Dr.
Tamosaitis's motion to supplement the record with evidence of his termination and
Bechtel's corresponding motion to strike his brief.
We deny Dr. Tamosaitis's motion to supplement due to his failure to comply with
the Rules of Appellate Procedure. Dr. Tamosaitis brought his motion in the body of his
brief. The only motion that a party can make in the body of their brief is a dispositive
motion or a motion for attorney fees. RAP lO.4(d); RAP 18.1(b). A motion to
supplement the record under RAP 9.11 is nondispositive.
Dr. Tamosaitis also asks this court to take judicial notice of these same facts under
ER 201. However, a motion to take judicial notice under ER 201 is nondispositive, and
is still an attempt to supplement the record, which requires compliance with RAP 9.11
and IO.4(d).
Because Dr. Tamosaitis extensively cited to these inadmissible documents in his
second reply brief, Bechtel asks this court to strike his reply brief. Striking the reply brief
would further delay the appeal by requiring us to give Dr. Tamosaitis leave to fix his
reply brief; we thus deny the motion to strike. RAp· 10.7. Instead, we will simply ignore
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the offending portions of the reply brief. Becerra v. Expert Janitorial, LLC, 176 Wn.
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App. 694, 730, 309 P.3d 711 (2013) ("We deny the motion to strike. This court is aware
j of what is properly before us and what is not. We have not considered material that is not
properly before us in deciding this case."),3 review granted, 179 Wn.2d 1014,318 P.3d
279 (2014).
Accordingly, the motion to supplement and the motion to strike are both denied.
CR 60(b)
We conclude that the superior court did not err when it refused to vacate its
summary judgment order. We review a trial court's ruling under CR 60(b) for an abuse
of discretion. Showalter v. Wild Oats, 124 Wn. App. 506, 510,101 P.3d 867 (2004).
Discretion is abused if it is exercised without tenable grounds or reasons. State ex rei.
Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
Here, Dr. Tamosaitis sought relief under CR 60 by claiming that he had new
evidence of damages. To support his motion, he provided this court with documents
showing that he had lost his incentive pay and that URS would not consider him for any
other positions at the WTP. Rather than bringing his motion under CR 60(b)(3), the
provision expressly reserved for newly discovered evidence, he brought his motion under
3 Even if we were to consider the evidence of Dr. Tamosaitis's termination, we
would reach the same result because this after-occurring evidence could not have affected
the trial court's ruling that is under review.
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1 CR 60(b)(11), a catchall provision.
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1 Dr. Tamosaitis took this tact because motions under (b )(3) can only be brought
J within one year of the entry ofjudgment. CR 60(b). However, "[t]he use ofCR
j 60(b)(11) should be confined to situations involving extraordinary circumstances not
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covered by any other section of the rule." In re Marriage ofYearout, 41 Wn. App. 897,
902,707 P.2d 1367 (1985) (internal quotation marks omitted). In other cases where
parties have tried to use CR 60(b)( 11) to skirt the one year limit on motions brought
under CR 60(b)( 1)-(3), this court has soundly rejected those attempts as violating the
spirit of the rule. Friebe v. Supancheck, 98 Wn. App. 260, 267, 992 P.2d 1014 (1999);
Bergren v. Adams Cnty., 8 Wn. App. 853, 857, 509 P.2d 661 (1973). We agree with
those cases and hold that the superior court did not abuse its discretion by denying Dr.
Tamosaitis's CR 60 motion.
Dr. Tamosaitis tries to distinguish these decisions by speculating-without any
supporting evidence-that Bechtel manipulated the timing ofURS's bonus decision to
come just after the CR 60(b )(3) one year time limit. That, however, presents another
problem of causation. Dr. Tamosaitis has no new evidence showing that any person or
entity other than DRS had any part in these new adverse actions. But, even assuming that
Dr. Tamosaitis had prima facie evidence establishing a causal link through DRS to
Bechtel, the trial court still did not err in refusing to grant the motion. CR 60
reliefwill not be granted when the new evidence is a change in facts that had not yet
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occurred at the time judgment was entered. State v. Dorosky, 28 Wn. App. 128, l33, 622
P.2d 402 (1981). Stated differently, newly occurring evidence is not the same as newly
discovered evidence for purposes ofCR 60. Accordingly, the trial court did not abuse its
discretion in denying the motion.
Affirmed.
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WE CONCUR:
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