IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHNSON BROTHERS CONTRACTING,

INC.,

Appellant,

SIMPSON TACOMA KRAFT COMPANY,

LLC,

Respondent.

No. 71735-9-1

ro °

DIVISION ONE S 3°

f- 3*

UNPUBLISHED OPINION ?> o- i

XT :-. n

K •--

FILED: August 4, 2014 5 ^ o

Appelwick, J. — Johnson Brothers Contracting, Inc. appeals the summary

judgment order dismissing its breach of contract, promissory estoppel, and negligent

misrepresentation claims against Simpson Tacoma Kraft Company, LLC. JBC sued after

Simpson declined to follow through with an oral eighteen month contract for the sale of

hog fuel. Simpson argues that JBC's claims are barred by the statute of frauds and the

independent duty doctrine. We affirm.

FACTS

In early 2009, Simpson Tacoma Kraft Company LLC was building a power plant

that would require large quantities of "hog fuel" to operate. "Hog fuel" is ground forest

slash that is used to fuel generators. Johnson Brothers Contracting Inc. (JBC), a Montana

company, produces hog fuel. Simpson approached JBC to supply hog fuel for its plant.

The parties met on March 3, 2009 at a Chehalis restaurant owned by Brent Deroo.

Deroo acted as JBC's hog fuel sales broker in the negotiations. Simpson was

represented by Steve Regelin, its fuel procurement manager at that time. Regelin

indicated that Simpson was a few months away from completing its plant and would soon

need about 100 truckloads of hog fuel per day to run the plant's generators.
No. 71735-9-1/2

During their discussion, the parties agreed on JBC supplying 90 truckloads a week

for 12 months, after which either party could give written notice to terminate the

agreement six months from that date. Each truckload held about 33 tons. The parties

discussed an initial price of $53 per ton. The going rate for hog fuel at that time was $63

per ton, so this was a good deal for Simpson. Simpson also proposed that JBC set up a

processing site in Olympia, nearby Simpson's plant, to reduce trucking and transport

costs. No written contract was produced.

A few days later, Regelin sent an e-mail to JBC acknowledging the meeting and

their discussions. Johnson requested that Regelin send a more detailed letter of intent

so Johnson could present it to a lender if he needed to obtain funding. Regelin did so,

writing, "This letter is to confirm Simpson Tacoma Kraft Company's desire to enter into

an agreement with Johnson Brothers Contracting, Inc. to purchase hog fuel produced in

your facilities." It then detailed the terms set forth bythe parties. The letter concluded, "I

believe this captures the items we discussed and I'm looking forward to developing this

important source of hog fuel using forest slash material."

Though the letter was sufficient to obtain funding, itwas more "wishy-washy" than

Johnson would have liked. But,Johnson thought the parties made a deal at the March 3

meeting. Johnson also thought that Regelin and Deroo were proceeding as if the deal

was done. Deroo treated the March 3 meeting as a commitment, one that obligated JBC

to move forward on the project.

According to Johnson and Deroo, Regelin called at the end of March and

confirmed that JBC should proceed with the Olympia site per the terms of the March 23

letter. JBC obtained a site lease from Welco LLC, and developed the Olympia location
No. 71735-9-1/3

for the purpose of providing hog fuel to Simpson. JBC expended about $200,000 setting

up the processing site. Simpson's representatives visited the processing site regularly as

it progressed. One Simpson representative, Blayde Fry, visited several times that spring.

In late spring, Regelin retired and a new fuel buyer, Bill Disbrow, took over. At this

point, Disbrow indicated that Simpson would not be purchasing hog fuel from JBC's

Olympia site as discussed. Fry had expressed concern about the quality of JBC's

Olympia hog fuel, which he said led to Simpson's ultimate decision not to enter into a

contract with JBC. According to Regelin, neither the March 3 meeting nor the March 23

letter constituted a binding contract. Instead, they were demonstrations of interest in

entering into an agreement in the future. Johnson maintained, however, that the parties

had formed a contract that Disbrow broke because he overcommitted to other suppliers

that offered better deals.

Disbrow instructed JBC to shut down the site to "stop the bleeding." JBC resold

its hog fuel to another company, but at a loss.

On March 12, 2012, JBC sued Simpson for breach of contract, promissory

estoppel, and negligent misrepresentation. Simpson moved for summary judgment

seeking to dismiss all of JBC's claims. Simpson argued that the statute of frauds barred

JBC's breach of contract and promissory estoppel claims; that JBC failed to present a

valid negligent misrepresentation claim; and that the statute of limitations precluded JBC's

suit.

The court granted Simpson's motion in its entirety. JBC appeals.
No. 71735-9-1/4

DISCUSSION

This court reviews summary judgment orders de novo. Hadlev v. Maxwell, 144

Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate only where

there are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. CR 56(c); Peterson v. Groves, 111 Wn. App. 306, 310, 44 P.3d 894

(2002). When considering the evidence, we draw reasonable inferences in the light most

favorable to the nonmoving party. Schaaf v. Hiqhfield, 127 Wn.2d 17, 21, 896 P.2d 665

(1995). We may affirm the trial court's ruling on any grounds adequately supported by

the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).

I. Breach of Contract

JBC asserts that the trial court improperly concluded that the statute of frauds

barred its breach of contract claim. Under the statute of frauds, certain contracts must be

in writing to be valid. See RCW 19.36.010. This includes contracts that will not be

performed in one year. RCW 19.36.010(1). Where a contract is for the sale of goods,

the Uniform Commercial Code (UCC) applies. RCW 62A.2-101, .2-102. The UCC has

its own statute of frauds provision, which states that a contract for the sale of goods for

$500 or more is not enforceable unless it is in writing. RCW 62A.2-201(1). JBC does not

assert that it had a written contract for this transaction, nor that it had an oral agreement

for a year or less.

A. Contract for Services or Goods

Johnson contends that its agreement with Simpson was not for the sale of goods,

but for a service—namely, the processing and transport of hog fuel. Where a contract

involves both goods and labor, this court looks to the "predominant factor" of the contract
No. 71735-9-1/5

to determine whether it is for goods or services. Tacoma Athletic Club, Inc. v. Indoor

Comfort Svs.. Inc., 79 Wn. App. 250, 257, 902 P.2d 175 (1995).

In Tacoma Athletic, the defendant sold and installed a dehumidification system for

the plaintiff. Id. at 252. The defendant argued that the parties had a construction contract,

not a sale of goods, jd. In applying the predominant factor test, the Court of Appeals

looked at both the written terms of the contract and the parties' negotiations, jd. at 258-

59. The court found that substantial evidence supported the trial court's conclusion that

the contract was for the sale of goods:

The negotiations leading up to the contract focused on the goods, not the

services, aspect of the sale. Comfort Systems recommended a specific

product to the Club, Dri-Aire dehumidifiers. The Club president insisted on

viewing other facilities at which Dri-Aire dehumidifiers had been installed.

The written contract predominantly lists the goods being sold [and] states

that the "system includes" labor. This language clearly suggests that the

subject of the sale is "the system," with the labor incidental to the system.

\j±

Here, the parties' negotiations similarly reflect a focus on the goods aspect of the

contract. Simpson approached JBC with the desire to purchase a specific tonnage of hog

fuel. JBC replied with its production capacity, also expressed in terms of quantity. The

parties discussed a price per ton, not per hour. And, Regelin's letter of intent, which

reflects the parties' negotiations, refers to Simpson's desire to "purchase hog fuel" and

notes Simpson's quality standards for a product, not for services.

This is not a case where Simpson hired JBC to exclusively process forest slash

that Simpson had on site. JBC obtained the slash from various sources, processed it,

and prepared it for sale by the ton. Though labor was required to convert the slash into
No. 71735-9-1/6

the final product, the predominant factor of the contract was the hog fuel. The parties'

contract was for the sale of goods and thus falls under the UCC.1

B. Exception to Writing Requirement

JBC argues that its agreement with Simpson was nonetheless enforceable under

an exception to the UCC writing requirement. Where a contract does not satisfy the

writing requirement, but is valid in other respects, it is enforceable if

the goods are to be specially manufactured for the buyer and are not

suitable for sale to others in the ordinary course of the seller's business and

the seller, before notice of repudiation is received and under circumstances

which reasonably indicate that the goods are for the buyer, has made either

a substantial beginning of their manufacture or commitments for their

procurement.

RCW62A.2-201(3)(a).

JBC argues that section (3)(a) preserves the parties' contract, because JBC

substantially changed its position in reliance on Simpson's oral agreement and incurred

damages as a result. JBC notes that itset up the Olympia site specifically for Simpson.

However, JBC cites no authority to indicate that goods produced at a specific site would

be necessarily be "specially manufactured" under the UCC. Importantly, the goods here

were suitable for sale to others in the ordinary course of JBC's business: JBC's President

Ernest Johnson stated that JBC was able to sell all of the hog fuel to another buyer

"without any trouble." Thus, they were not specially manufactured nor unsuitable forsale

to others as required to trigger this section.

1 JBC argues that, were this court to find that the parties' contract was for

services—not goods—the contract would survive under the general statute of frauds

provision, RCW 19.36.010. However, that statute similarly bars JBC's claim, as itrenders

void an oral contract exceeding one year. RCW 19.36.010(1). It contains no exception

for contracts for services.
No. 71735-9-1/7

The parties did not form a valid contract. The trial court properly granted summary

judgment on JBC's breach of contract claim.

II. Promissory Estoppel

JBC argues that the trial court improperly dismissed its promissory estoppel claim.2

However, an oral promise for the sale of goods that is otherwise barred by the statute of

frauds is not enforceable on the basis of promissory estoppel. Liqe Dickson Co. v. Union

Oil Co. ofCal., 96 Wn.2d 291, 292, 635 P.2d 103 (1981). JBC attempts to distinguish the

present case, arguing that the Liqe court had limited facts that did not require it to

intervene with equity. Though the Liqe court commented that equitable estoppel did not

seem appropriate on the facts before it, its ultimate conclusion was a legal one:

"[pjromissory estoppel cannot be used to overcome the statute of frauds in a case which

involves the sale of goods." ]d, at 299.

Liqe controls here. The trial court properly granted summary judgment on JBC's

promissory estoppel claim.

III. Negligent Misrepresentation

JBC contends that the trial court improperly dismissed its negligent

misrepresentation based on the independent duty doctrine. Under this doctrine, a party

seeking to recover for breach of contract may also recover for breach of a tort duty ifthe

tort duty arose independently of the terms of the contract. Eastwood v. Horse Harbor

2Simpson argues that JBC's promissory estoppel and negligent misrepresentation

claims were barred due to JBC's lapsed corporate registration status at the time of suit.

However, JBC cured this problem by paying its license fee on June 28, 2012. See

Portland Ass'n of Credit Men. Inc. v. Earlev, 42 Wn.2d 273, 279, 254 P.2d 758 (1953)

("Nonpayment of the license fee affects only the corporation's capacity to maintain the

action at time of trial."), overruled on other grounds by Ford v. Logan, 79 Wn.2d 147, 150,

483 P.2d 1247 (1971).
No. 71735-9-1/8

Found., Inc., 170 Wn.2d 380, 389, 241 P.3d 1256 (2010). JBC fails to demonstrate an

independent tort duty.

JBC alleges that Simpson committed negligent misrepresentation when Regelin

orally agreed to honor an 18 month hog fuel contract with JBC, even though he lacked

the authority to do so. Washington law recognizes the tort of negligent misrepresentation

as set forth in Restatement (Second) of Torts § 552(1) (1977):

"One who, in the course of his business, profession or employment, or in

any other transaction in which he has a pecuniary interest, supplies false

information for the guidance of others in their business transactions, is

subject to liability for pecuniary loss caused to them by their justifiable

reliance upon the information, if he fails to exercise reasonable care or

competence in obtaining or communicating the information."

Hinesv. Data Line Svs., Inc., 114Wn.2d 127, 150, 787 P.2d 8 (1990) (emphasis added).

"[T]o prevail on a claim of negligent misrepresentation, a plaintiff must prove by clear,

cogent, and convincing evidence that he or she justifiably relied on the information that

the defendant negligently supplied." Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536,

545, 55 P.3d 619 (2002).

The statute of frauds renders void any oral agreement that cannot be performed in

one year. RCW 19.36.010(1). Therefore, as a matter of law, it would be impossible for

Regelin to make an enforceable 18 month oral contract with JBC. Accordingly, JBC

cannot present clear, cogent, and convincing evidence that it justifiably relied on a

negligent misrepresentation.

The trial court properly granted summary judgment on JBC's negligent

misrepresentation claim.

8
No. 71735-9-1/9

IV. Attorney Fees

JBC requests attorney fees and costs under RCW 4.84.010. RCW 4.84.010(6)

provides that a prevailing party shall be allowed to recover certain expenses, including

statutory attorney fees. JBC is not the prevailing party. We deny JBC's request.

The trial court properly granted summary judgment dismissing JBC's suit in its

entirety. We affirm.

WE CONCUR:

IA <Me j } X