Seth Burrill Productions, Inc. v. Rebel Creek Tackle, Inc. ( 2015 )

FILED
JULY 7, 2015
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
SETH BURRILL PRODUCTIONS, INC., )
a Washington corporation, ) No. 32119-3-111
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
REBEL CREEK TACKLE, INC., )
)
Appellant. )
KORSMO, J. This is an appeal from a finding of contempt for violation of an
order resolving a previous dispute between the parties. Concluding that this appeal is
completely without merit, we affirm the contempt finding and award costs and attorney's
fees for the appeal.
FACTS
Allen Osborn invented and patented a fishing lure, and formed Rebel Creek
Tackle, Inc. (RCT) to handle the ensuing business. In order to begin manufacture of the
lures, RCT had prototypes and steel injection molds produced in China. RCT then
licensed Seth Burrill Productions, Inc. (SBP) to be the exclusive producer and distributor
of the lures, granting it "full, unrestricted use of the injection molds." The molds were
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then transferred to Richland based manufacturer, Plastic Injection Molds, Inc. (PIM) for
production.
Following a breakdown in relations with SBP, ReT unilaterally terminated the
license in 2012, and began its own distribution of lures obtained from PIM. In response,
SBP brought an action for breach of contract. In May 2013, an arbitrator found that ReT
had breached the licensing agreement, and entered an award providing for damages and
the reinstatement of a modified licensing agreement. The arbitration award was then
confirmed in a court order filed June 7, 2013. Pertinently, the arbitration award and court
order amended the provision in the licensing agreement granting SBP use of the injection
molds to additionally require that ReT "cooperate in the transfer and/or delivery of said
molds as requested by [SBP]."
Immediately thereafter, SBP contacted PIM to arrange the transfer of the molds.
However, because the molds are the property of ReT, PIM would not release the molds
without permission. SBP attempted to contact ReT, but was unable. SBP eventually
contacted ReT's attorney, who refused to agree to the transfer, instructed PIM not to
release the molds, and then informed SBP that he no longer represented ReT. SBP then
made several additional, unsuccessful attempts to directly contact ReT before bringing
the present action for contempt, four months after the court order was filed. The trial
court found that ReT had intentionally violated the court order and imposed remedial
sanctions. ReT appealed.
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ANALYSIS
RCT challenges the contempt finding, arguing that the licensing agreement, as
modified by the court order, was ambiguous and that its violation of the order was
justified in order to protect its property interests. We will address those arguments and
then consider SBP's request for attorney's fees.
Contempt
A party is subject to contempt where there is intentional disobedience of a valid
court order. RCW 7.21.010. A finding of contempt is within the discretion of the trial
court and will not be reversed absent an abuse of that discretion. Schuster v. Schuster, 90
Wn.2d 626,630,585 P.2d 130 (1978). Discretion is abused when it is exercised on
untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wash. 2d 12,
26,482 P.2d 775 (1971).
RCT argues that the modification to the licensing agreement imposed by the
arbitration award and court order is ambiguous because the word "transfer" can mean
alternatively a change in possession or a sale. See BLACK'S LA W DICTIONARY 1727
(10th ed. 2014). However, a term in a contract is not rendered ambiguous merely
because one word is susceptible to multiple meanings. Grant County Constructors v.
E. V Lane Corp., 77 Wash. 2d 110, 121,459 P.2d 947 (1969). Rather, the word must be
read in the context of the contract as a whole, and where the language used is
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unambiguous, an ambiguity will not be read into the contract. Hering v. St. Paul-
Mercury Indem. Co., 50 Wn.2d 321,323,311 P.2d 673 (1957).
The clause requiring RCT to "cooperate in the transfer and/or delivery of the
molds," unambiguously contemplates only a change in possession in order to facilitate
SBP's use of the molds for the duration of the contract. 1 "Transfer" could not reasonably
mean "sale" in this context since that word already is used in the same phrase as an
alternative possibility to "transfer." Furthermore, the parties agree on this meaning of the
word "transfer" in this context. Consequently, the modified licensing agreement was
unambiguous.
RCT next contends that its actions were justified as a means to protect its property
interests in the molds. It contends that SBP intends to perpetrate fraud by misreporting
sales and that SBP could lose or damage the molds while in its possession. However,
RCT has presented no evidence that any of these hypothetical future harms will occur2
1 RCT argues that resolving the ambiguity entails adding conditions to SBP's
possession of the molds. These conditions were not included in the original agreement
nor in the court order, and a court order cannot be collaterally attacked in contempt
proceedings. State v. Cae, 101 Wn.2d 364,369-70,679 P.2d 353 (1984). Additionally,
even if this were a reasonable interpretation, RCT would still have been in contempt of
court for refusing to cooperate with the transfer.
2 The contention that SBP intended to defraud RCT stems from the fact that SBP
previously failed to submit the quarterly sales reports required by the licensing
agreement. However, the arbitrator determined that this failure was inconsequential
because SBP had instead reported all sales as they occurred.
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nor is there any legal support that this constitutes a defense to contempt. ReT also has
the ability to enforce any breach of the agreement by SBP by bringing its own action.
ReT has failed to demonstrate that the trial court's finding of contempt was in any
manner untenable. Therefore, we affirm.
Attorney's Fees
SBP requests that this court award costs and attorney's fees as sanctions under
RAP 18.9(a) for bringing a frivolous appeaP An appeal is frivolous when it presents no
debatable issues upon which reasonable minds might differ, and it is so devoid of merit
that there is no possibility of reversal. Tiffany Family Trust Corp. v. City ofKent, 155
Wn.2d 225,241,119 P.3d 325 (2005). Doubts as to whether an appeal is frivolous
should be resolved in favor of the appellant. ld. Raising at least one debatable issue
precludes a finding of frivolousness. Advocates for Responsible Dev. v. W Wash.
Growth Mgmt. Hr'gs Bd., 170 Wn.2d 577,580,245 P.3d 764 (2010).
Here, ReT has appealed from a finding of contempt, while conceding all of the
essential facts establishing that it intentionally violated a court order. It contends instead
that its actions were acceptable because the court order is ambiguous. Yet under any
interpretation, it would still have been in violation of the order. It also contends that its
actions were justified without any factual or legal support. Thus, ReT has not presented
3 Because ReT is not the prevailing party, we need not address its claim for
attorney's fees on appeal.
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any debatable issue and this appeal is completely without merit. SBP is awarded its costs
and attorney's fees for this appeal upon compliance with RAP 18.l(d).
Affirmed
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, .
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