FILED 


APRIL 21, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DNISION THREE 

GRANT COUNTY PORT DISTRICT ) 

NO.9, PORT OF EPHRATA, ) 

) 

Respondent, ) 

) 

v. ) 

) 

WASHINGTON TIRE CORPORATION, ) 

a Washington Corporation, ) 

) 

Appellant, ) 

) 

CHICAGO TITLE COMPANY OF ) 

OREGON, an Oregon corporation, ) 

) 

Defendant. ) 

No. 3l673-4-III 

OPINION PUBLISHED 

IN PART 

LAWRENCE-BERREY, J. - Grant County Port District No.9 (the Port) and 

Washington Tire Corporation (WTC) entered into an earnest money agreement (EMA). 

Under this agreement, WTC agreed to purchase real property from the Port. Shortly 

before closing, the Port commissioners voted to terminate the agreement. The trial court 

granted summary judgment in favor ofthe Port, concluding that the Port was entitled to 

repudiate the agreement. The trial court also held that WTC's exclusive remedy under the 
No. 31673-4-III 

Grant County Port. Dist. v. Wash. Tire Corp. 

EMA for the Port's breach was rescission and return of its $40,000 earnest money. We 

hold that the Port was not entitled to repudiate the agreement and that the EMA does not 

provide the exclusive remedy for the Port's breach. We therefore reverse the trial court 

and remand for further proceedings. 

FACTS 

As this is an appeal from summary judgment orders favoring the Port, we set forth 

the facts in the light most favorable to WTC, the nonmoving party. 

WTC's principal, Abraham Hengyucius (Abraham), was born in China and earned 

a PhD from Nanjing University in China. In about 2005, Abraham formed American Tire 

Corp., a New Jersey corporation to develop and deliver giant off-the-road (OTR) tires. 

OTR tires are expensive, industrial-sized tires used on large vehicles, primarily in the 

mining industry. 

In about November 2007, the Seattle Office ofthe Washington State Department 

of Community Trade and Economic Development wrote to Abraham to discuss a 

potential facility in Washington. In 2007 and 2008, Abraham visited Washington to view 

potential sites for a manufacturing facility, including a site off of Interstate 90 in Grant 

County. 

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Grant County Port. Dist. v. Wash. Tire Corp. 

In July 2008, Abraham fonned WTC as the entity responsible for developing the 

new OTR tire plant in Washington. In 2009, Abraham fonned Washington Investment & 

Development, LLC (WID), which started working to identifY and obtain commitments 

from investors wishing to obtain an EB-5 visa. 'Such a visa allows foreign nationals who 

invest significant sums in the United States to obtain a green card. WID procured several 

investors to invest in a proposed tire facility in Washington. WTC also engaged Scott 

Fraser of GV A Kidder Mathews to act as a buyer's broker on its behalf. Mr. Fraser 

assisted in detennining WTC's operational needs, and traveled with Abraham toward 

locating an appropriate manufacturing site in Washington. 

In August 2008, Mr. Fraser and Abraham visited a 96-acre site located in Ephrata, 

which was owned by the Port. WTC concluded that this location was a good fit for its 

planned tire manufacturing facility. Mr. Fraser submitted an offer to purchase the 

property on WTC's behalf, including a proposed purchase and sale agreement. The Port 

proposed its own contract and, on October 1, 2008, Abraham executed the EMA. The 

EMA contemplated a number of conditions which were required to be met prior to 

closing. WTC deposited $40,000 into escrow. 

In furtherance of satisfYing these conditions, Abraham, on behalf of WTC, met 

with various government agencies, including the Governor's Office of Regulatory 

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Grant County Port. Dist. v. Wash. Tire Corp. 

Assistance, Grant County public utility district, Grant County economic development 

council (EDC), city of Ephrata officers, and several Port officers. WTC retained 

Columbia Northwest Engineering and environmental professionals to finalize off-site 

infrastructure, water, sewer, and air studies. WTC worked with the Department of 

Ecology in Spokane to discuss environmental, waste water, and air permit issues, and the 

Port required that WTC process all studies necessary to obtain Federal Aviation 

Administration (FAA) approval of the land transaction. In July 2009, WTC completed 

and submitted a 30-year traffic study. In December 2009, WTC provided the Port with a 

2S4-page report relating to environmental issues. 

In January 2010, WTC arranged for its investors to visit Port officials and the 

surrounding area. In March 2010, the Port's manager, Michael Wren, visited China to 

meet with WTC's investors. This meeting was arranged at WTC's cost and expense. 

During the meeting, Mr. Wren was introduced to a number of Chinese people and was 

made aware of the Chinese custom of Chinese people using Americanized names when 

working with people in the West. In May 2010, WTC similarly arranged for Washington 

state senators to visit China in support ofWTC's investment in Washington. 

On July 20,2010, Mr. Wren notified WTC that the Port had received the Land 

Release Notification from the FAA. WTC responded by accepting the conditions of the 

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Grant County Port. Dist. v. Wash. Tire Corp. 

land sale transaction. By doing so, WTC satisfied all of its conditions under the EMA. 

The Port was responsible for completing the two tasks remaining before the sale could 

close: (I) clear title relating to easements, and (2) obtain a single tax identification 

number for the parceL 

In late July 20 I 0, WTC arranged another meeting and presentation for investors to 

visit the property. The program included a slot for Abraham to speak. On August 2, 

2010, Abraham provided Grant County EDC with the visitors' legal names, including his 

own Chinese name. In the e-mail, Abraham requested that'" Regarding the agenda, 

please kindly change my name to Jacqueline Zhn=ang (sic) for the presentation.'" 

Clerk's Papers (CP) at 319. The Port apparently concluded that Abraham intended to 

make the presentation under a different name (Jacqueline Zhang). Abraham subsequently 

clarified to Terry Brewer and the Port that '" [Ms.] Zhang is a lady responsible for EB-5 

marketing'" and that '" Hengyu Zhang is my Chinese name'" and '" Abraham is my 

American name.'" CP at 319. The Port immediately requested that the FAA delay the 

land transfer documentation being prepared for the impending closing. 

On August 4, 2010, Mr. Wren wrote to Abraham stating that he did not want the 

name issue '''to get blown out ofproportion'" but that he was "'tasked by [the Port's] 

commissioners to get some clarification so that we can continue to support [WTC].'" 

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No. 31673-4-111 

Grant County Port. Dist. v. Wash. Tire Corp. 

CP at 319 (alterations in original). In the e-mail.Mr. Wren noted the common cultural 

practice of using a western name: '" After being in China myself, I understand how 

common the use of American names is, however, can you please show me something 

(fax) that shows your legal name to include Abraham, since that is what you've signed all 

of the documents by?'" CP at 319. Mr. Wren indicated that the Port would not move 

forward without this infonnation. 

On August 6, 2010, WTC provided copies of Abraham's identification showing 

his Chinese name and made clear that Abraham Hengyucius is his American name. On 

August l3, 2010, Mr. Wren sent Abraham a letter from the Port's legal counsel, Kathryn 

Kennison. In the letter, Ms. Kennison acknowledged the nearly two years of progress on 

the project that WTC had perfonned to satisfy the conditions prior to closing, resulting in 

the Port finally obtaining FAA approval to close. Ms. Kennison wrote, '" Before 

proceeding any further with closing this transaction, the Port will require certification 

from a Washington attorney known to myself who deals extensively in commercial 

transactions which established the legitimate incorporation of Washington Tire 

Corporation, and the legal authority of "Abraham Hengyucious" [sic] to bind Washington 

Tire Corporation as its President.'" CP at 320 (alterations in original). 

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Grant County Port. Dist. v. Wash. Tire Corp. 


WTC provided the Port with its articles of incorporation and certificate of 

incorporation. Abraham also offered to execute any and all documents the Port might 

require to resolve the Port's concerns. Abraham used his American name on the articles 

of incorporation in which he signed as "Incorporator," and he also was identified on the 

Secretary of State's website as the chairman ofWTC. CP at 337. 

On August 27,2010, Abraham legally changed his name from Hengyu Zhang to 

Abraham Hengyucius. Abraham provided the Port with a copy of the Pierce County 

District Court's Order Changing Name, filed on August 27, 2010. In addition, WTC had 

its broker-Mr. Fraser-go to Ephrata to meet with the Port, and he offered to have WTC 

execute whatever replacement documents may be required to further clarify Abraham's 

authority to execute documents as Abraham Hengyucius on behalf of WTC. 

Although the Port received documentation and assurances from WTC on the issues 

it deemed important, it did not timely receive the "certification from a Washington 

attorney known to [the Port's attorney] who deals extensively in commercial transactions" 

verifying Abraham's authority. CP at 253. On September 20, the Port commissioners 

voted to terminate the EMA based on "unresolved issues regarding WTC['s] corporate 

status and Mr. Hengyucius' [Zhang] authority to sign on behalf ofWTC." CP at 140. 

The Port soon after brought this declaratory action, seeking to have the court declare that 

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No. 31673-4-III 

Grant County Port. Dist. v. Wash. Tire Corp. 

WTC breached the EMA by failing to give adequate assurances, or, alternatively, that 

WTC's exclusive remedy for the Port's breach was return of its $40,000 earnest money 

deposit. WTC counterclaimed for specific performance or, alternatively, damages under 

theories of restitution and promissory estoppel. WTC also counterclaimed for rescission 

and return of its earnest money, but later chose not to pursue this relief. 

In the first summary judgment proceeding, the trial court held as a matter of law 

that WTC anticipatorily breached the EMA by failing to give adequate assurances, and 

this failure allowed the Port to repudiate the EMA. The trial court dismissed all of 

WTC's counterclaims except promissory estoppel. In the second summary judgment 

proceeding, the trial court held as a matter of law that WTC was not entitled to damages 

under promissory estoppel; but, rather, its exclusive remedy under the EMA was a refund 

of its $40,000 earnest money deposit. The trial court ordered the return ofWTC's earnest 

money, less the Port's reasonable attorney fees, costs, and expenses as provided under the 

EMA. WTC appealed the trial court's summary judgment orders. 

ANALYSIS 

This court reviews summary judgment orders de novo. Lunsford v. Saberhagen 

Holdings, Inc., 166 Wn.2d 264, 270, 208 P.3d 1092 (2009). When reviewing summary 

judgment orders, the appellate court engages in the same inquiry as the trial court, 

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No. 31673-4-III 

Grant County Port. Dist. v. Wash. Tire Corp. 

viewing the facts and all reasonable inferences in the light most favorable to the 

nonmoving party. Riojas v. Grant County Pub. Util. Dist., 117 Wn. App. 694, 697, 72 

P.3d 1093 (2003). Summary judgment is appropriate only if the moving party can show 

that "there is no genuine issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law." CR 56( c). "A material fact is one upon which the 

outcome of the litigation depends in whole or in part." Atherton Condo. ApartmentOwners Ass'n v. Blume Dev. Co., 115 Wn.2d 506,516,799 P.2d 250 (1990). 

The burden is on the moving party to show an absence of an issue of material fact. 

Youngv. Key Pharm.} Inc., 112 Wn.2d 216, 225,770 P.2d 182 (1989). If the moving 

party submits adequate affidavits to meet its burden, the burden shifts to the nonmoving 

party to set forth specific facts to rebut the moving party's contentions and show that a 

genuine issue of material fact exists. Seven Gables Corp. v. MGMlUA Entm 't Co., 106 

Wn.2d 1, 13,721 P.2d 1 (1986). The nonmoving party may not rely on speculation or 

argumentative assertions to defeat summary judgment. Id. 

Summary judgment on the interpretation of a contract is "proper where 'the 

parties' written contract, viewed in the light of the parties' other outward objective 

manifestations, has only one reasonable meaning.'" Spradlin Rock Prods.} Inc. v. Pub. 

Util. Dist. No.1 o/Grays Harbor County, 164 Wn. App. 641, 655, 226 P.3d 229 (2011) 

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No. 3 I 673-4-III 

Grant County Port. Dist. v. Wash. Tire Corp. 

(quoting Hall v. Custom Craft Fixtures, Inc., 87 Wn. App. 1,9,937 P.2d 1143 (1997)). 

The interpretation ofan unambiguous contract is a question of law that we review de 

novo. Stranberg v. Lasz, 115 Wn. App. 396, 402, 63 P.3d 809 (2003). 

Paragraph 9 of the EMA provides: 

ENFORCEMENT: If title is insurable and all other terms of the Agreement are 

satisfied, and Purchaser refuses to complete purchase, then the earnest money 

shall be forfeited to Seller as liquidated damages. IfSeller refuses to complete the 

sale then Purchaser shall be entitled to rescission of this Agreement and return of 

its earnest money. 

CP at 26 (bold in original) (emphasis added). 

The Port has two alternative arguments. The first argument is that WTC 

repudiated the purchase and sale agreement by failing to give adequate assurances that it 

would perform. Under this theory, WTC is in breach, and the remedy provision 

applicable to purchaser's breach needs to be reviewed. The second argument is that it, 

the Port, breached the purchase and sale agreement when it refused to proceed with the 

closing. Under this theory, the Port is in breach, and the remedy provision applicable to 

seller's breach needs to be reviewed. We begin by determining whether the evidence, 

taken in the light most favorable to WTC, supports the Port's repUdiation argument; and, 

if so, whether the doctrine of anticipatory repudiation applies in the context of a purchase 

and sale of real property. 

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No. 3 I 673-4-II1 

Grant County Port. Dist. v. Wash. Tire Corp. 

A. Whether WTC repudiated the EMA 

WTC challenges the trial court's finding that it repudiated the EMA as a matter of 

law. A party's anticipatory repudiation of a contract excuses the other party's 

performance. CKP, Inc. v. GRSConstr. Co., 63 Wn. App. 601, 620,821 P.2d63 (1991). 

Such repudiation must occur before the other party's performance is due. Wallace v. 

Kuehner, III Wn. App. 809, 816,46 P.3d 823 (2002). "An intent to repudiate may be 

expressly asserted or circumstantially manifested by conduct." CKP, 63 Wn. App. at 620. 

The repudiation must consist of a '''positive statement or action by the promisor 

indicating distinctly and unequivocally that he either will not or cannot substantially 

perform any of his contractual obligations.'" Wallace Real Estate Inv. Inc. v. Groves, 124 

Wn.2d 881,898,881 P.2d 1010 (1994) (quoting Olsen Media v. Energy Scis., Inc., 32 

Wn. App. 579, 585, 648 P.2d 493 (1982)). A party's "doubtful and indefinite statements" 

suggesting only that it may not perform do not demonstrate repudiation. Wallace Real 

Estate, 124 Wn.2d at 898. 

Restatement (Second) ofContracts § 251 (1981 )-which sets forth the doctrine of 

anticipatory repudiation by failing to give adequate assurances-provides: 

(1) Where reasonable grounds arise to believe that the obligor will commit 

a breach by non-performance that would of itself give the obligee a claim for 

damages for total breach[,] the obligee may demand adequate assurance of due 

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No. 31673-4-III 


Grant County Port. Dist. v. Wash. Tire Corp. 


performance and may, if reasonable, suspend any performance for which he has 

not already received the agreed exchange until he receives such assurance. 

(2) The obligee may treat as a repudiation the obligor's failure to provide 

within a reasonable time such assurance of due performance as is adequate in the 

circumstances of the particular case. 

While this Restatement has been adopted for the sale of goods in RCW 62A.2.-609 

and RCW 62A.2.-61 0, the Restatement and doctrine of adequate assurances has not yet 

been accepted for general application. Even ifwe were to find the doctrine applicable to 

real estate transactions, the doctrine does not support the Port's position. 

Nothing in the record supports the Port's argument that WTC would not perform. 

F or two years, WTC committed itself toward fulfilling, and did fulfill, all of the 

conditions ofthe EMA. When the Port questioned WTC about WTC's corporate status 

and Abraham's authority, Abraham and WTC's broker provided the Port with 

documentation of WTC's corporate status and Abraham's authority. Both Abraham and 

WTC's broker assured the Port of its desire to move forward and close the transaction, 

offering to sign whatever documents the Port deemed necessary. 

Moreover, regardless ofAbraham's authority, WTC clearly ratified the EMA over 

the two-year period it performed under the EMA. The corporate principal may impliedly 

ratify the unauthorized contract of an officer agent. Barnes v. Treece, 15 Wn. App. 437, 

443,549 P.2d 1152 (1976). There is no evidence that WTC sought to rescind the EMA. 

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No. 31673~4-III 

Grant County Port. Dist. v. Wash Tire Corp. 

Rather, WTC consistently sought to close the transaction, and closing was prevented 

solely by the actions of the Port. The trial court erred in declaring that WTC 

anticipatorily breached the EMA. 

B. Whether the EMA limits WTC's remedy to return ofits earnest money 

WTC contends that the trial court erred by construing the EMA as providing an 

exclusive remedy of return of its earnest money for the Port's breach. WTC contends that 

the EMA does not limit its remedies, and that it may seek specific performance or 

damages. 

Washington follows the objective manifestation theory of contracts, looking for 

"the parties' intent by its objective manifestations rather than looking at the parties' 

unexpressed subjective intent." Paradiso v. Drake, 135 Wn. App. 329, 336, 143 P.3d 859 

(2006). Courts should consider "only what the parties wrote, giving words in a contract 

their ordinary, usual, and popular meaning unless the agreement, as a whole, clearly 

demonstrates a contrary intent." Id. Courts interpret what was written rather than 

intended to be written. JW Seavey Hop Corp. v. Pollock, 20 Wn.2d 337,348-49, 147 

P.2d 310 (1944). 

If a contract is subject to two interpretations, then the contract must be "interpreted 

as to preserve the rights of all the parties, rather than be interpreted in such a way to 

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No. 31673-4-III 


Grant County Port. Dist. v. Wash. Tire Corp. 


destroy the rights of either one." Asia Inv. Co. v. Levin, 118 Wash. 620, 628, 204 P. 808 

(1922). Unless parties to a contract clearly and definitely decide to limit their rights, 

courts will not interpret contract language to have that effect. Id. 

The sentence ofthe EMA relating to seller's breach provides: "If Seller refuses to 

complete the sale then Purchaser shall be entitled to rescission of this Agreement and 

return of its earnest money." CP at 26. The EMA does not contain express language 

excluding the right to damages or specific performance. 

Paradise Orchards General Partnership v. Fearing, 122 Wn. App. 507,94 P.3d 

372 (2004) controls the disposition of this issue. There, an earnest money agreement 

provided that in the event of buyer's default, the seller'" shall have the right''' to 

repossess the property and'" shall have the right'" to sell the apple crop and keep the 

proceeds. Id at 518. The agreement further provided that the seller'" shall have no 

obligation'" to refund the earnest money deposit. Id The court held: 

By using the clauses "shall have the right" and "shall have no obligation" 

the paragraph unambiguously implies that the buyer has discretion to invoke 

the enumerated remedies. In other words ... the agreement does not 

specifY mandatory and exclusive remedies. Rather, it reserves the seller's 

right to invoke the enumerated remedies. No language in the agreement 

states the remedies are exclusive. 

Id 

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No. 31673-4-III 

Grant County Port. Dist. v. Wash. Tire Corp. 

Similarly here, the operative language states that if seller refuses to perform, then 

buyer "shall be entitled" to rescission and return of its earnest money. As in Paradise 

Orchards, this language unambiguously implies that the buyer has discretion to invoke, or 

not to invoke, the enumerated remedies. 

The Port cites Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510,210 P.3d 

318 (2009), in support of its position that the remedy provision in the EMA, quoted 

above, provides an exclusive remedy. That case is factually distinguishable. There, the 

remedy provision stated in relevant part, '" [A]ny default by Seller under this Agreement 

... shall enable Buyer, as its sole and exclusive remedy, to terminate this Agreement and 

recover from Seller the portion of the Deposit paid by Buyer.'" Id. at 515 (alterations in 

original) (emphasis added). As noted above, there is no similar "exclusive remedy" 

language in the EMA. 

The Port next cites United Glass Workers' Local No. 188 v. Seitz, 65 Wn.2d 640, 

399 P.2d 74 (1965) and contends that the exclusive remedy presumption for foreseeable 

conditions applies to the EMA. In United Glass Workers, the union fined its member for 

working behind an authorized picket line. Id. at 641. The constitution of the plaintiff 

union provided for the imposition of fines on members for infraction of union rules. Id. 

The constitution further provided in relevant part, '" In the event of non-compliance with 

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No. 31673-4-III 


Grant County Port. Dist. v. Wash. Tire Corp. 


the decision handed down ... the member ... shall stand suspended from all privileges of 

[union membership] until ... the decision ha[s] been complied with.'" Id. at 641·42. 

When the member refused to pay the fine, the union brought suit. The member moved to 

strike the complaint. The trial court treated the motion as one for summary judgment. 

The trial court granted the member's motion, concluding that the constitution provided 

the exclusive remedy for nonpayment ofthe fine, i.e., expUlsion from the union. Id. at 

641. On appeal, the union argued that it had the option of expelling the member or 

collecting the fine. Id. Our high court disagreed and held: 

[W]hen parties to a contract foresee a condition which may develop and 

provide in their contract a remedy for the happening ofthat condition, the 

presumption is that the parties intended the prescribed remedy as the sole 

remedy for the condition, and this presumption is controlling where there is 

nothing in the contract itself or in the conditions surrounding its execution 

that necessitates a different conclusion. 

Id. at 642. This rule has repeatedly been applied to construction cases where the parties 

foresaw change orders or weather-related delays, and provided specific remedies for such 

foreseen conditions. See, e.g., F.S. Jones Constr. Co. v. Duncan Crane & Rigging, Inc., 2 

Wn. App. 509,468 P.2d 699 (1970); Donald B. Murphy Contractors, Inc. v. State, 40 

Wn. App. 98, 696 P.2d 1270 (1985); s.L. Rowland Constr. Co. v. Beall Pipe & Tank 

Corp., 14 Wn. App. 297, 540 P.2d 912 (1975). 

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No. 31673-4-III 


Grant County Port. Dist. v. Wash. Tire Corp. 


As noted in United Glass Workers, the exclusive remedy presumption is 

controlling unless (1) the contract itself or (2) the conditions surrounding its execution 

necessitates a different outcome. United Glass Workers, 65 Wn.2d at 642. Here, the 

contract itself necessitates a different outcome. As noted in Paradise Orchards, the 

contract clause "shall have the right" "unambiguously implies that [the nonbreaching 

party] has discretion to invoke [or not invoke] the enumerated remedies." Paradise 

Orchards, 122 Wn. App. at 518. On this basis, United Glass Workers is distinguished. 

Moreover, the conditions surrounding the contract's execution necessitate a 

different outcome. Here, the parties knew that WTC would spend considerable time and 

money toward complying with the EMA conditions. To conclude that the parties foresaw 

that the seller would breach and intended nothing but return of WTC's own deposit would 

allow the Port to commit a breach without consequence, despite WTC's anticipated 

expenditure of significant resources oftime and money. Parties do not enter into 

contracts to allow one party to breach without consequences. Such a construction is 

unreasonable, and courts must avoid construing contracts in a way that leads to absurd 

results. City o/Tacoma v. City 0/Bonney Lake, 173 Wn.2d 584, 593, 269 P.3d 1017 

(2012) (To avoid an absurd result, the court construed the contract so a contracting party 

had a remedy against a breaching party.). We, therefore, hold that the exclusive remedy 

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No. 31673-4-111 


Grant County Port. Dist. v. Wash. Tire Corp. 


presumption does not apply here when its application would allow a party to breach the 

contract without consequences. 

The remainder ofthis opinion has no precedential value. Therefore, it will be filed 

for public record in accordance with RCW 2.06.040, the rules governing unpublished 

opmlons. 

C. Whether WTC 's promissory estoppel claim was properly dismissed 

WTC challenges the trial court's order dismissing its claim for promissory 

estoppel. To establish a claim for promissory estoppel, a plaintiff must show five 

elements: '" (1) A promise which (2) the promisor should reasonably expect to cause the 

promisee to change his position and (3) which does cause the promisee to change his 

position 

(4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided 

only by enforcement ofthe promise.'" Farm Crop Energy, Inc. v. Old Nat 'I Bank of 

Wash., 109 Wn.2d 923,939, 750 P.2d 231 (1988) (quoting Corbit v. J.! Case Co., 70 

Wn.2d 522, 539,424 P.2d 290 (1967». Promissory estoppel is an alternative theory of 

liability based on the absence ofan express agreement. Tradewell Group, Inc. v. Mavis, 

71 Wn. App. 120, 130, 857 P.2d 1053 (1993). The doctrine ofpromissory estoppel 

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No. 31673-4-III 

Grant County Port. Dist. v. Wash. Tire Corp. 

addresses situations where consideration is lacking. Id. (quoting Hatfield v. Columbia 

Fed. Sav. Bank, 57 Wn. App. 876, 885, 790 P.2d 1258 (1990)). 

The trial court correctly dismissed WTC's claim for promissory estoppel. The 

EMA was an express agreement backed by consideration. As previously stated, WTC's 

promise to buy and submission of earnest money was given in return for the Port's 

promise to sell, a promise we construe as having consequences. There was mutual 

consideration for this promise. The trial court correctly dismissed WTC's promissory 

estoppel claim. 

D. 	 Whether the Port must refund the money paid by WTC pursuant to the reversed 

summary judgment order 

WTC requests that this court require the Port to refund the money the Port received 

as attorney fees and costs should we reverse the first summary judgment order. Because 

we conclude that the first summary judgment order was erroneous, we agree with WTC. 

WTC is entitled to a refund of the money it paid to the Port. 

E. 	 Whether either party is presently entitled to an award ofattorney fees, costs, and 

expenses on appeal 

The parties each request an award of attorney fees, costs, and expenses pursuant to 

the EMA. The EMA provides for an award of reasonable attorney fees, and all costs and 

expenses to the prevailing party. The parties' requests are premature because such an 

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No. 3 1 673-4-III 


Grant County Port. Dist. v. Wash. Tire Corp. 


award must abide the ultimate outcome ofthis litigation. See MRC Receivables Corp. v. 

Zion, 152 Wn. App. 625, 631, 218 P.3d 621 (2009). At the conclusion of the proceedings 

below, the trial court has authority to award the prevailing party reasonable attorney fees, 

costs, and expenses, both at the trial court level, and for this appeal. 

In conclusion, we reverse the summary judgment orders, hold that WTC did not 

anticipatorily breach the EMA, and that the EMA does not provide an exclusive remedy 

for the Port's breach. 

Lawrence-Berrey, J. 

WE CONCUR: 


Brown, A.C.J. 

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