IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE RSD AAP, LLC, Appellant,

v.
ALYESKA OCEAN, INC; JEFF HENDRICKS and JANE DOE HENDRICKS, individually and as a marital community, Respondents. No. 71926-2-1 ORDER WITHDRAWING OPINION AND SUBSTITUTING OPINION

The court has determined that the opinionfiled on September 14, 2015, should be withdrawn and a substitute published opinion be filed. Now, therefore, it is hereby ORDERED that the opinion filed on September 14, 2015, be withdrawn and a substitute published opinion be filed. 

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# t^Opi.T-IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON RSD AAP, LLC, Appellant,

ALYESKA OCEAN, INC; JEFF HENDRICKS and JANE DOE HENDRICKS, individually and as a marital community, Respondents. No. 71926-2-1 DIVISION ONE PUBLISHED OPINION

FILED: September 21,2015 Trickey, J. — RSD AAP, LLC (RSD) is a partner in the Auriga/Aurora General Partnership (AAGP). RSD appeals the trial court's summary dismissal of its lawsuit against another partner,Alyeska Ocean, Inc. (AOI). RSD asserts that the trial courterred byholding that (1) the right offirst refusalprovision setforth in the partnership agreement was nottriggered, (2) the partnershipagreement's requirement thatwritten consent from two thirds of the partnership be obtained before encumbering a partnership interest was not breached, and (3) the fiduciary duty of loyalty or good faith and fair dealing was not violated. Finding no error, we affirm.
FACTS JeffHendricks is the sole shareholderof AOI. In 1987, AOI purchased two vessels to convert them for commercial fishing. To raise capital to convert the vessels and prepare them for operation, AOI formed AAGP in 1988. All of the partners who were invited to join AAGP were friends or family of Hendricks.No. 71926-2-1/2 A general partnership agreement (Agreement) was entered into on February 13, 1988. Article VII of the Agreement involved the transferring of partnership interests. It provided, in relevant part:
7.1 Transfer Prohibited. 7.1.1 No Partner may, without the prior written consent of the Partners holding at least a two-thirds interest in the Partnership (excluding the transferring Partner's interest), directly orindirectly sell, lease, transfer, 

### assign, give, pledge, hypothecateorotherwiseencumber orpermitor suffer anyencumbrance ofall or any part of his interestin the Partnership,with or withoutconsideration, except as provided in this ArticleVII and Section 8.2.
7.3 Right of First Refusal. Notwithstanding the provisions ofSection 7.1.1, a Partner may sell his interest in the Partnership upon compliance with the conditions of Section 7.1.2 and the following conditions:

. . . .[1] As setforth in Section 7.3, if a partner decided to accept an offer to purchase his 

### or herpartnership interest, the partnerwas required toprovide written notification to the other partners ofhis or herintention tosell the interest. That notification was toinclude the terms and conditions of the proposed offer. After receiving the selling partner's 

### notification, the other partners would have 30 days to elect to purchase for themselves 

### the selling partner's interest upon the same terms and conditions in the selling partner's notification. If the other partners elected not to purchase the interest or ifthey did not 

### respond within 30 days, the selling partnerwas permitted toeffectthe sale ofhis or her interest upon the same terms and conditions containedin the notification to the other. In addition, the Agreement contained an integration clause: 12.3 Governing Law, Miscellaneous. This Agreement is intended to benefit only the parties hereto, constitutes the entire agreement of the 

### parties relative to the formation, operation, termination and dissolution of

1 Clerk's Papers (CP) at 70-71.No. 71926-2-1/3 the Partnership There are no promises, terms, conditions orobligations other than those contained herein, and this Agreement supersedes all previous communications, representations or agreements, either verbal or written, between the parties concerning the subject matter hereof. No variations, modifications, or changes herein or hereofshall be binding upon either party hereto
. . . .[2] AOI became the general manager of AAGP under the Agreement and Management Agreement, and has continued to hold that position since the formation of the partnership. Robert Resoffbecame an originalpartner of AAGPthrough his corporation Robert E. Resoff, Inc. RSD is a wholly-owned subsidiary of, and managed by, Robert E. Resoff, Inc. In 2010, Robert E. Resoff, Inc. transferred its entire 20.618 percent share of its partnership interest to RSD. George Steers is the president of RobertResoff, Inc. 

### On April 24, 2012, Hendricks contacted Mark O'Brien, a partner of O'Brien 

### Enterprises, Inc., to ask if he was interested in selling his partnership interest to him. 

### During that conversation, O'Brien informed Hendricks for the first time that he had terminal cancer and only had a few weeks to live. O'Brien was receptive to the notion of 

### selling his interestand suggested that Hendricks give him his "idea" ofapurchase price.3 OnApril 30 throughMay 10, 2012, Hendricks communicatedwith Clayton Lynch, O'Brien's certified public accountant, about the valuation of O'Brien's interest and determined that a purchase by way of an option would be the best method of 

### accomplishing the transaction. Hendricks forwarded to Lynch an updated valuation of O'Brien's 20.618 percent interest—$3,482,478—that was prepared by Hendicks' accountant. On May 10, Hendricks wrote to Lynch offering to pay $4 million plus

2 CP at 77. 3 CP at 55.No. 71926-2-1/4 $500,000 for O'Brien's share of the partnership funds held for distribution and inreserve for a pending shipyard expense. Hendricks notified Lynch that his counsel, Doug Fryer, would draft an Option Agreement. OnMay 15, 2012, Hendrickssent a letter to the partners alerting them of O'Brien's health condition.4 He told them that he and O'Brien "agreed that after his death [AOI] 

### would purchase [O'Brien's] corporate interestin the partnership."5 In the letter, Hendricks attached a "CONSENT AND WAIVER as required by our partnership agreement" to be returned to Hendricks.6 Hendricks also instructed the partners to "[f]eelfree to call ifyou 

### have questions about the agreement or[O'Brien's] condition."7 

### By May 21, 2012, counselfor O'Brien and Hendricks agreed on a form ofOption 

### Agreement to be executed. TheOption Agreement stated thatit "is entered into as of May 24, 2012."8 Although the Option Agreement had been executed effective May 24, 

### 2012, according to Hendricks, O'Brien and his wife did not sign it until May 31.9 The option was not exercisable until O'Brien's death. By May 31, 2012, Hendricks received the consent of two-thirds ofthe partnership, excluding O'Brien's consent. On June 4, 2012, Matt Lieske contacted Hendricks about the details of the transaction. Lieske inquired about the value agreed upon for O'Brien's interest. 

### Hendricks replied, providing a detailed explanation of what he believed his valuation of the company was for a sale of a less-than-controlling interest versus the sale of a

4 CP at 117. 5 CP at 117. 6 CP at 117-19. 7 CP at 117. 8 CP at 121. 9The Option Agreement does not indicate the dates on whicheach party signed it.No. 71926-2-1/5 controlling interest. On June 6, 2012, Hendricks wired O'Brien $200,000 as consideration
to finalize the Option Agreement. ByJune 8, 2012, Hendricks had not heard from RSD. Hendricks contacted Twig Mills, one of the Robert E. Resoff, Inc. trustees, to inquire about RSD's consent. Mills responded that George Steers was meeting with the other managers on the week ofJune
14 to discuss the O'Brien transaction. On June 20, 2012, Steers wrote to Fryer, asking for the details of the O'Brien purchase. Steers also notified Fryer that RSD may want to exercise its right offirst refusal. Fryer responded the next day. He informed Steers that all of the partners had 

### given written approval of the acquisition by AOI of the option to purchase O'Brien's partnership interest. Fryer stated his opinion that under the Agreement, because two

### thirds of the partnership had consented, the right offirst refusal did not apply. Steers 

### responded by letter dated June 25, 2012, asserting that as a partner, Hendricks was required by the Revised Uniform Partnership Act (RUPA), chapter 25.05 RCW, to meet his fiduciaryduties and disclose the terms of the transaction. O'Brien died on July 9, 2012. Under the Option Agreement, this event triggered 

### the 30-dayperiod for Hendricks to exercise the option to purchase O'Brien's interestin the partnership. OnJuly 10, Fryerreceived Steers' June 25 letter. Fryer responded that same daywith details of the transaction by sending a copy of the Option Agreement and advising Steers that O'Brien had died and Hendricks planned to close the transaction within 30 days.No. 71926-2-1/6 On July 30, 2012, Fryer received the executed closing documents, including a bill ofsale for the O'Brien partnership interest. Hendricks wired the balance of the purchased price shortly after August 2, 2012. Prior to the acquisition of O'Brien's interest, AOI, O'Brien Enterprises, Inc., and RSD each owned a 20.618 percent partnership interest in AAGP. On August 8, 2012, Steers advised Fryer that Robert E. Resoff, Inc. had elected to purchase the O'Brien interest on the same terms set forth in Hendricks' Option Agreement. 

### On February 13, 2013, RSD filed a complaint for declaratory and equitable relief 

### againstAOI. RSD alleged breach offiduciary duty, breach ofcontract, and interference with business expectancy. In its prayer for relief, RSD requested (1) declaratory relief 

### thatits alleged rightoffirst refusal underSection 7.3 oftheAgreementberecognized; (2) that thecourt impose a constructive trusttoprotect RSD's alleged interest in theO'Brien transaction based upon its purported right offirst refusal; and (3) specific performance of 

### theAgreementthatwould requireAOI tomaketheO'Brientransaction subjecttotheright of first refusal as determined by Section 7.3 ofthe Agreement. 

### AOI moved for summary judgment against RSD. AOI maintained that under the 

### plain language oftheAgreement, only where a partner cannotobtain consentfrom twothirds ofthe partnership to a transfer ofinterest does the right offirst refusal apply. AOI argued thatbecause the transfer ofO'Brien's partnership interest was approved bytwothirds of the partnership, the right offirst refusal was never triggered. The trial court granted AOI's motion for summaryjudgment. RSD appeals.No. 71926-2-1/7

ANALYSIS We review summaryjudgment orders de novo. Durland v. San Juan County, 182 Wn.2d 55, 69, 340 P.3d 191 (2014). Summaryjudgment is appropriate only ifthere is no genuine issue of material fact in the pleadings, affidavits, and depositions on file, and the moving party is entitled to judgment as a matter of law. CR 56(c). Material facts are those upon which the outcome of the litigation depends. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997). RSD first contends that the trial court's interpretation of the Agreement was
erroneous because, it argues, under the Agreement, even where a partner obtains consent of two-thirds of the non-selling partners under Section 7.1.1, itstill must comply 

### with the right offirst refusal provision set forth in Section 7.3. We disagree with RSD's interpretation ofthe Agreement. 

### "The interpretation of a contract can be a mixed question oflaw and fact. But where the contract presents no ambiguity and noextrinsic evidence is required to make
sense of the contractterms, contract interpretation is a question oflaw." Rekhter v. Dep't of Soc. & Health Servs., 180 Wn.2d 102, 134, 323 P.3d 1036 (2014) (internal citations omitted). The touchstone of contract interpretation is the parties' intent. See Newport Yacht Basin Ass'n ofCondo. Owners v. Supreme Nw.. Inc., 168 Wn. App. 86, 100, 285 P.3d 70 

### (2012); 25 David K. DeWolf &KellerW. Allen, Washington Practice: ContractLaw and Practice § 5:7, at 152 (2d ed. 2007). We construe contracts "to reflect the intent of 

### the parties." Corbravv. Stevenson, 98Wn.2d 410,415, 656 P.2d 473 (1982). Wefollow the "'objective manifestation theory'" of contract interpretation, focusing on theNo. 71926-2-1/8 "'reasonable meaning of the contract language to determine the parties' intent.'" Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 712, 334 P.3d 116 (2014) (quoting Hearst Commc'ns. Inc. v. Seattle Times Co.. 154 Wn.2d 493, 503, 115 P.3d 262 (2005)). 

### "We impute an intention corresponding to the reasonable meaning of the words used." Hearst, 154 Wn.2d at 503. We also follow the context rule that "extrinsic evidence relating to the context in which a contract is made may be examined to determine the meaning ofspecific words and terms" used in the contract. William G. Hulbert. Jr. & Clare Mumford Hulbert Revocable Living Trust v. Port of Everett, 159 Wn. App. 389, 399-400, 245 P.3d 779 

### (2011) (emphasis added). Extrinsic evidence includes both the contract's subject matter 

### and objective, the circumstances surrounding contract formation, both the parties' conduct and subsequent acts, and the reasonableness of the parties' respective 

### interpretations. Hulbert, 159 Wn. App. at400. However, extrinsic evidence may not be used to"'showanintention independentofthe[contract]' orto'vary, contradict[,] ormodify the written word.'" Hearst, 154Wn.2d at 503 (quoting Hollis v. Garwall. Inc., 137Wn.2d 

### 683, 693, 974 P.2d 836 (1999)). Moreover, extrinsic evidence of a party's subjective, unilateral, or undisclosed intent regarding the meaning of a contract's terms is inadmissible. Hulbert, 159Wn. App. at 400. "Noris itadmissible under the parol evidence rule to add to the terms of a fully integratedwritten contract." Hulbert, 159Wn. App. at
400. 

### We "should ultimately give effect to . . . the intent of the parties at the time of execution." 25 DeWolf &Allen, § 5:7, at 154 (2007). If contractual language is "clear

8No. 71926-2-1/9 and unambiguous,"we must enforce the written contract. Lehrerv. Dep't of Soc. &Health Servs., 101 Wn. App. 509, 515, 5 P.3d 722 (2000). The primarily disputed sections of the Agreement are repeated as follows: 7.1.1 No Partner may, without the prior written consent of the Partners holding at least a two-thirds interest in the Partnership (excluding the transferring Partner's interest), directly or indirectly sell, lease, transfer, assign, give, pledge, hypothecate or otherwiseencumberor permitor suffer any encumbrance of all or any part of his interest in the Partnership, with or without consideration, except as provided in this ArticleVII and Section 8.2. 7.3 Right of First Refusal. Notwithstandingthe provisions ofSection 7.1.1, a Partner may sell his interest in the Partnership upon compliance with the conditions of Section 7.1.2 and the following conditions: ....[10] 

### RSD interprets these provisions, in addition to others quoted above, to mean that the right offirst refusal in Section 7.3 trumps the two-thirds consent requirement in Section 7.1.1. The plain language of Sections 7.1.1 and 7.3, when read together, delineates two 

### separate mechanisms oftransferring partnership interest. The first is Section 7.1.1's general requirementthatin ordertotransferapartnership interest, thepartnermustobtain written consent of the partners holding at least a two-thirds interest in the partnership. The second mechanism is outlined inSection 7.3, the right of first refusal provision. The term "notwithstanding" indicates that this is a separate method oftransferring interest. 

### "Notwithstanding" is defined as "without prevention or obstruction from or by"; "nevertheless, however, yet." Webster's Third New International Dictionary 1545 (2002).

10 CP at 70-71 (emphasis added).No. 71926-2-1/10 The term "may" in Section 7.3 also supports this interpretation. It establishes that 

### the right of first refusal procedure is optional, not required. The language of the Agreement does not state that it is mandatory that a transferring partner follow the procedure offirst refusal. The Agreementcould have done so bymirroring the language of Section 7.1.1. Nor does the Agreement state that Section 7.3 is an additional requirement to Section 7.1.1. RSD relies on extrinsic evidence to buttress its argument that the Agreement 

### requires a selling partnertocomplywith therightoffirst refusal regardless ofwhetherthe 

### partner obtained consentfrom the partnership. Forexample, RSD focuses attention on a 1987 Offering Memorandum, offered byAOI, which contained a provision regarding the 

### right of first refusal. But resorting to extrinsic evidence such as this is unwarranted. [S]urrounding circumstances and other extrinsic evidence areto beused 'to determine themeaning ofspecific words andterms usedand notto'show anintention independent ofthe instrument' or to 'vary, contradict ormodify thewritten word.'" Hearst, 154Wn.2d 

### at 503 (quoting Hollis. 137 Wn.2d at 695-96). RSD seeks to modify—not define—the clear terms ofthe contract to support its interpretation. 

### The Agreement's language is clear and unambiguous. The consent provision in Section 7.3 is a separateprocess oftransferring a partnership interest from theright of first refusal in Section 7.1.1. The trial court did not err in so concluding. RSD next contends that material questions of fact remain as to whether AOI 

### complied with Section 7.1.1 oftheAgreement. According to RSD, because the Option Agreement is datedMay 24, itwas onthat date thattheagreementtogrant Hendricks an option became binding and, thus, encumbered O'Brien's partnership interest. RSD

10No. 71926-2-1/11 argues, as it did to the trial court, that because May 24 predates May 31, the date that the partners consented to the transfer, AOI failed to comply with Section 7.1.1's requirementthatthe transferring partnerobtain pr/orwritten consent. RSD did notpresent evidence refuting the fact that O'Brien signed the Option Agreement on May 31. Its argument was that the Option Agreement was binding on May 24 by virtue ofthe effective date listed on the agreement. The trial court based its summaryjudgment decision on its finding that the Option Agreement became binding when O'Brien signed it on May 31, after two-thirds of the partnership consented to the transaction. Nevertheless, AOI argues on appeal that the Option Agreement, which is different 

### from a purchase and sale agreement, was notbinding on O'Brien until he received the $200,000 consideration on June 6. We agree with this assertion. An option to purchase property is a contract wherein the owner, in return for a valuable consideration, agrees with another person that the latter shall have the privilege ofbuying the propertywithin a specified time 

### upon the terms and conditions expressed in the option. Ifnoconsideration passes, the transaction resolves itself into a mere offer which may be withdrawn by the optionor at any time before acceptance by the optionee. Butwhen supported by a consideration, as in the case at bar, the execution of the agreement results in a contractbinding upon the optionorwhich may not be withdrawn by him during the time setforth therein. Whitworth v. Enitai Lumber Co., 36 Wn.2d 767, 770, 220 P.2d 328 (1950). Accordingly,


### an option contract is notbinding until consideration passes. Here, consideration did not change hands until June 6, when Hendricks wired O'Brien $200,000. Thetrial courtdid
not err. See Wendle v. Farrow. 102 Wn.2d 380, 382, 686 P.2d 480 (1984) (reviewing court may affirm the trial court's judgment on any theory established by pleadings and supported by proof).

11No. 71926-2-1/12
RSD further contends that there was no evidence that Hendricks obtained written consent from the partners. RSD asserts that the trial court misread Hendricks' declaration. In Hendricks' declaration, he stated, "By [May 31] Ihad the consent of 2/3 of the partners excluding the transferring partner."11 However, in its summary judgment motion, AOI also attached a copy of the consentforms mailed to the partners. Additional evidence offered by AOI on summary judgment demonstrated that the consent was in written form. Furthermore, RSD presented no evidence that contradicted AOI's evidence that the consent was in writing. A trier of fact could reasonably infer, based on this evidence, that AOI properly obtained consent in writing from the partners. The trial court correctly concluded that no material question of fact remained as to whether the consent received was in writing and obtained priorto encumbering O'Brien's partnership interest,
as required by Section 7.1.1. ofthe Agreement. 

### RSD contends, finally, that the trial court erredby summarily dismissing hisclaim that Hendricks breached his duties ofloyalty and goodfaith and fairdealing to the partners and partnership. We disagree. Partners are accountable to each other and the partnership as fiduciaries. Bishop of Victoria Corp. Sole v. Corporate Bus. Park, LLC. 138 Wn. App. 443, 457, 158 P.3d 

### 1183 (2007). One ofthe duties owed as a fiduciary is the duty ofloyalty, which includes refraining from self-dealing, secret profits, andconflicts ofinterest. Bishop, 138Wn. App. at 457 (citing RCW 25.05.165(2)(a)-(c)). A partner also has an obligation ofgood faith andfair dealing to discharge duties to the partnership and other partners under the terms ofthe partnership agreement. RCW 25.05.165(4).

11 CPat56.
12No. 71926-2-1/13 

### RUPA governs partnership affairs to the extent not defined in the partnership agreement. Home v. Aune, 130 Wn. App. 183, 200-01, 121 P.3d 1227 (2005); RCW 25.05.165. RUPA is considered a "gap filler" in this manner. Home, 130 Wn. App. at 200-01. "With few exceptions . . . partners may 'write their ownticket.'" Home, 130Wn. 

### App. at 200-01 (internal quotation marks omitted) (quoting Seattle-First Nat'l Bk. v. Marshall, 31 Wn. App. 339, 347, 641 P.2d 1194(1982)). Included within those exceptions 

### is the duty of loyalty under RCW 25.05.165(2). RCW 25.05.015(2)(c) prohibits a 

### partnership agreement from eliminating the duty ofloyalty under RCW 25.05.165(2). 

### Partnership agreements alsocannot "[unreasonably reduce theduty ofcareunder RCW 25.05.165(3)," or "[e]liminate the obligation ofgood faith and fair dealing under RCW 25.05165(4)." RCW25.05.015(2)(d), (e). RSD contends that Hendricks breached the duty of loyalty because, he argues, 

### theopportunity to purchase theO'Brien interest was a "partnership opportunity." RSD points to Section 8.2 ofthe Agreement, which gave the partnership an opportunity to purchase a partner's interest upon his or her death. Section 8.2 of the Agreement provided: 

### Upon the death
... of any partner, the Partnership shall continue the Partnership business under its then present name. . . . The Partnership 

### may elect to (but need not) liquidate the interest of the . . . deceased . . . Partner and cause the Partnership to purchase the interest of the . . . deceased
... Partner at a purchase price equal to 100% ofthe Value ofthe

. . . deceased
. .. Partner's interest.
. . .[12] 

### Notably, notonepartnerexpressedaninterestin purchasing O'Brien's partnership interest for the benefit of the partnership. Hendricks informed the partners of the

12CP at 74.
13No. 71926-2-1/14 transaction in his May 15, 2012 letter to them, and gave them the opportunity to inquire further about the details of the transaction. Had any of the partners been interested in purchasing the interestfor the partnership as a "partnership opportunity," they could have taken action to do so. RSD communicated its interest in purchasing the O'Brien interest weeks after having been informed of the transaction. And RSD sought to purchase the interest on its own behalf as an individual partner, and not on behalf of the partnership
interest. RSD also argues that Hendricks failed to disclose the material terms of the transaction before seeking timely, informed consent from the partners. The good faith obligation of a partner includes a duty of candor, which demands that the partner abstain 

### from any and all concealment concerning matterspertaining to the partnership business and to refrain from making false statements to a copartner. Bow v. Graham, Cohen & Wampold. 17 Wn. App. 567, 570-71, 564 P.2d 1175 (1977) (citing Karle v. Seder, 35 Wn.2d 542, 214 P.2d 684 (1950)). Hendricks satisfied the good faith obligation by 

### promptly informing the partners ofO'Brien's impending death and the deal upon which they agreed. Indeed, Hendricks eventually disclosed the details of the transaction to
RSD. RSD cites Bow for the proposition that as managing partner Hendricks is held to 

### the highest standard offiduciary obligation. In Bow, Division Two stated in a footnote, "We also note that as managing partner, Bovy occupied a higherfiduciary position and had the burden ofdispelling all doubts concerning the discharge of his duties. In the event a managing partner is unable to satisfy this burden, all doubts would ordinarily be resolved against him." 17Wn. App. at 571 n.3 (citing Conradv. Judson, 465 S.W.2d 819

14No. 71926-2-1/15 

### (Tex. Civ. App. 1971); Bakalis v. Bressler. 1 III. 2d 72, 115 N.E.2d 323 (1953)). No Washington case has adopted this proposition since Bow. Because it is merely dicta, we do not apply this proposition forthe first time here. RCW 25.05.165(5) states that no duty is violated under either RUPA or a 

### partnership agreement "merely because the partner's conductfurthers the partner's own interest." AOI did not violate the duty ofloyalty or any other obligation imposed because itsought an opportunity for itselfas a partner in the enterprise. 

### Wereject RSD's claim thatAOI breached its fiduciary duties. Thetrial court did

not err.We affirm. 

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