Stadelman Fruit, LLC v. Jim D. Voorhies ( 2018 )

FILED
JULY 10, 2018
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
DIVISION THREE
STADELMAN FRUIT, LLC, a )
Washington limited liability company, ) No. 35165-3-III
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
JIM D. VOORHIES, a single person, )
)
Appellant, )
)
JOHN E. HOWARD, as Personal )
Representative for the ESTATE OF )
FLORENCE E. HOWARD, )
)
Defendant. )
FEARING, J. — Plaintiff Stadelman Fruit, LLC filed suit to collect on a debt owed
by defendant Jim Voorhies and to foreclose on a mortgage securing the debt. The trial
court granted Stadelman Fruit summary judgment and dismissed counterclaims asserted
by Jim Voorhies. We affirm.
FACTS
Plaintiff Stadelman Fruit, LLC operates as a fruit packing facility that handles,
packs, markets, and sells fruit grown by Yakima Valley orchardists. As with other fruit
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packing facilities, Stadelman Fruit enters agreements with orchardists, under which
agreements an orchardist agrees to deliver the orchardist’s entire crop for a year and the
facility agrees to store, process, pack, market, and sell the fruit on behalf of the
orchardist. Often the fruit packing facility advances growing and harvesting costs to the
orchardist so that the orchardist need not procure a bank loan. Defendant Jim Voorhies
has operated apple orchards in Yakima Valley since at least 1996.
Jim Voorhies first contracted with Stadelman Fruit to pack, store, and market
Voorhies’ apple crop in 1996. Stadelman Fruit then advanced money to Voorhies for
operating expenses. After the sale of the 1996 crop, Voorhies owed a deficit of $100,000
to Stadelman Fruit. Stadelman Fruit did not then demand payment of $100,000, but
instead insisted that Voorhies deliver three loads of apples to Stadelman Fruit in 1997.
Voorhies did so.
Jim Voorhies next entered a fruit handling agreement with Stadelman Fruit in
1998. Stadelman Fruit loaned money to Voorhies that year. As in 1996, the proceeds
from the 1998 crop did not offset the debt owed to Stadelman Fruit and the charges
assessed by Stadelman Fruit for handling the crop. In a declaration, Jim Voorhies
testified that Pete Stadelman, an owner of Stadelman Fruit, told him that he need not pay
the debt. Pete Stadelman is deceased.
From 1999 to 2007, Jim Voorhies delivered his apple crops to other fruit handling
facilities. Hopefully, he enjoyed a financial return in one or more of those
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years. An agent of Stadelman Fruit approached Jim Voorhies in early 2008 and Voorhies
agreed to market his 2008 crop through Stadelman Fruit in exchange for advances for
growing and harvest expenses from Stadelman Fruit.
On March 5, 2008, Jim Voorhies and Stadelman Fruit entered a fruit handling
agreement. The agreement required Voorhies to deliver to Stadelman Fruit all
marketable apples grown in his orchards during the crop year. In exchange, Stadelman
Fruit, in its sole discretion, handled all necessary processes for postharvest handling,
packing, market and sale. Paragraph 1.2 of the agreement declared:
Basis of Handling and Marketing: During the term of this
Agreement, Grower [Jim Voorhies] hereby authorizes Handler [Stadelman
Fruit] to handle and market Grower’s fruit described in paragraph 2.1
below in Handler’s regular pool(s) as Handler, in its sole discretion,
determines to be in Grower’s best interest.
Clerk’s Papers (CP) at 72. The agreement imposed onerous terms on Jim Voorhies
regarding the wide discretion Stadelman Fruit reserved in handling and marketing
Voorhies’ crop. In addition to the language of paragraph 1.2, paragraph 1.4 of the fruit
handling agreement prescribed:
Handling and Marketing: Handler shall handle and market Grower’s
fruit in accordance with the customs and standards of the industry and in
accordance with Handler’s standard practices, which Handler may, in its
sole discretion, change from time to time, provided such changes shall
apply to and treat all growers similarly situated with respect to quality,
quantity and varieties of fruit alike. Unless otherwise agreed in writing
between Handler and Grower, Handler shall have the following rights,
obligations and authority with respect to the handling and marketing of
Grower’s fruit:
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1.4.1 Packing - Grade Standards: Handler shall have the right and is
authorized to determine the type of pack and packaging of Grower’s fruit to
establish standards for packs and types of packs, which standards may be
greater than those established by state, federal or industry grades. In
addition, Handler reserves the right to establish quality and other
reasonable standards for the purpose of determining which fruit, if any,
may be placed in Handler’s controlled-atmosphere storage facilities.
1.4.2 Marketing Decisions: Handler is authorized to market all fruit
subject to this Agreement at such times and prices, and in such quantities as
the market will accept and as Handler, in its sole discretion, deems to be in
the best interest of Grower. All sales and marketing decisions, including
extensions of credit, price adjustments, the use of handlers, dealers,
brokers, dealers, or traders and the geographic location of purchasers, shall
be made in the sole discretion of Handler.
CP at 72-73.
The fruit handling agreement signed in March 2008 applied to the 2008 crop year.
Nevertheless, paragraph 3 of the agreement declared that it automatically renewed in
subsequent crop years unless either party chose to terminate the agreement in writing.
The agreement further extended its terms to include all crop years until Jim Voorhies paid
all debt owed Stadelman Fruit:
3. TERM: The term of this Agreement is for the 2008 crop year;
provided, however, that this Agreement shall be considered as
automatically renewed from year to year thereafter, unless either party
terminates this Agreement by giving the other party written notice not later
than March 1 of the crop year in which termination is desired. In addition,
the term of this Agreement shall automatically be extended and shall
include all subsequent crop years and crops grown during such crop years
until all obligations, including advances, owed by Grower to Handler under
the terms of this Agreement have been paid in full unless otherwise
determined by Handler. In other words, it is contemplated that so long as
Grower is indebted to Handler, Grower will continue to bring Grower’s
fruit to Handler for the purpose of handling and marketing in order to
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accommodate Handler’s economic interest as a handler and packer of
Grower’s fruit and for the purpose of protecting Handler’s rights as a
creditor of Grower. Termination shall be prospective only and shall not,
unless otherwise agreed in writing, affect the rights, liabilities and
obligations of the parties with respect to fruit which previously has been
delivered by Grower to Handler for purpose of handling and marketing.
CP at 75.
The 2008 fruit handling agreement allowed Stadelman Fruit to provide advances
or operating loans to Jim Voorhies, which loans Voorhies would secure with a mortgage.
The parties anticipated use of the advances for growing expenses. Voorhies would not
have marketed his apples through Stadelman Fruit without Stadelman Fruit’s willingness
to provide operating loans. The advances clause in the agreement read:
7. ADVANCES: Handler may make discretionary advances to
Grower to grow and harvest Grower’s fruit crop on such terms and
conditions as Handler shall, in its sole discretion, determine to be
appropriate. If Handler has agreed to make an advance to Grower, Grower
hereby agrees to execute any security agreement, promissory note,
financing statement, and other documents deemed reasonable and necessary
by Handler to ensure the repayment of such advances and, in addition, any
subordination agreements determined reasonable and necessary by Handler
for such purpose. Handler’s decision to make advances in any particular
instance shall not constitute an obligation or agreement by Handler to
provide such advances to Grower in the future, and Grower acknowledges
and agrees that such advances are discretionary with Handler.
CP at 77.
The March 2008 fruit handling agreement allowed Stadelman Fruit to offset any
advancements and any handling charges against the proceeds of the sale of fruit:
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6.2 Right of Offset: The parties understand and agree that Handler
shall have the right to offset all advances, assessments, charges and
expenses owed by Grower prior to the payment of any funds to Grower or
any third party having an interest in Grower’s crops or proceeds thereof.
CP at 76. Voorhies also promised to execute any security documents Stadelman Fruit
requested:
8.2 Security Documents: Grower shall, procure and deliver to
Handler or execute for Handler, at its request, any additional security
agreement, financing statement, negotiable warehouse receipt, promissory
note for advance of credit given by Handler to Grower, or other writing
necessary to create, preserve, protect or enforce Handler’s lien and/or
security interest in Grower’s crops and its rights under state and federal
law.
CP at 77. The fruit handling agreement provided for periodic accountings:
10. PAYMENT AND ACCOUNTING: Handler shall, upon written
request by Grower, provide periodic accountings of all Grower’s fruit sold
to that date, less charges, advances and authorized deductions. Handler
shall remit any balance due Grower within sixty (60) days after receipt of
the proceeds from the sale of Grower’s fruit and final accountings have
been made and completed, provided, however, that Handler does not
guarantee collection on fruit sold, placed, or consigned. In determining
whether any balances are owed by Grower, charges, expenses and advances
in connection with all fruit subject to this Agreement shall be taken into
consideration. . . .
CP at 80.
In the event Jim Voorhies failed to deliver a crop to Stadelman Fruit, paragraph 13
of the fruit handling agreement granted Stadelman Fruit liquidated damages in the sum of
one hundred and twenty percent of the ordinary handling and marketing fees Stadelman
Fruit would have received from the crop. Finally, paragraph 14.2 of the agreement
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granted the prevailing party recovery of reasonable attorney fees and costs in the event of
litigation between the parties.
On the same day he signed the fruit handling agreement, Jim Voorhies executed
two mortgages to secure Stadelman Fruit’s advances. The first mortgage encumbered
two parcels of Voorhies’ real property, and the second burdened Voorhees’ interest in a
real estate contract. Voorhies ultimately defaulted on the real estate contract, which left
only the mortgage on the real property as security.
The mortgage covered repayment of Stadelman Fruit’s advances and read:
[T]o secure the payment of all sums due Mortgagee [Stadelman
Fruit] pursuant to the crop handling agreement of even date herewith
between Mortgagor [Jim Voorhies] and Mortgagee, including all sums
advanced to provide crop financing for the crop to be grown upon the
following described real estate, situated in the County of Yakima, State of
Washington:
PARCEL A:
The West half of the West half of the Northwest quarter of Section
23, Township 14 North, Range 17, E.W.M.,
EXCEPT the right of way for County Road along the North line
thereof.
(Assessor’s Parcel No. 171423-22002)
PARCEL B:
The East half of the West half of the Northwest quarter of Section
23, Township 14 North, Range 17, E.W.M.,
EXCEPT right of way for County Road along the North line thereof.
(Assessor’s Parcel No. 171423-22001)
To secure the performance of each agreement of the mortgagor
herein contained and the payment of all sums due Mortgagee in providing
crop financing for the 2008 crop to be grown upon said premises, including
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all renewals, modifications, and extensions thereof, and also such additional
sums as shall be agreed upon.
CP at 84-85.
Stadelman Fruit handled all of Jim Voorhies’ crops for the 2008, 2009, and 2010
years. During this period, Stadelman Fruit advanced $575,252.95 to Voorhies.
Stadelman Fruit received $464,080.22 in receipts from Voorhies’ apples to offset the
advances, which left an overdue balance of $111,172.73. Notice that the proceeds from
Jim Voorhies’ crop failed to pay the advances and Stadelman Fruit’s expenses, such that
Voorhies never received any profit. Jim Voorhies testified that the parties never reached
an agreement or understanding that the mortgage on his land extended to crop years 2009
and 2010.
Stadelman Fruit also paid off a $42,380.92 senior lien and property taxes totaling
$23,831.88 on the mortgaged land. Those payments raised the debt owed by Voorhies to
Stadelman Fruit to the total sum of $177,385.53. Presumably because of the debt Jim
Voorhies owed Stadelman Fruit, Stadelman Fruit refused to loan further sums to Jim
Voorhies in 2011, but insisted that Voorhies deliver his 2011 crop to Stadelman Fruit.
PROCEDURE
On July 25, 2011, Stadelman Fruit initiated this suit to foreclose on its mortgage.
In his answer, Jim Voorhies asserted that Stadelman Fruit was negligent and failed to
follow Voorhies’ instructions in packing and selling the crop, which neglect artificially
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deflated prices. Voorhies also complained of Stadelman Fruit’s accounting and claimed
that the company engaged in deceptive acts in violation of the Consumer Protection Act,
chapter 19.86 RCW. Voorhies, in his answer, admitted he executed the mortgage and
agreed Stadelman Fruit handled his fruit from 2008-2010.
Stadelman Fruit and Jim Voorhies filed cross motions for summary judgment.
Tim Welch, Stadelman Fruit’s chief financial officer, filed a declaration to address
Voorhies’ accounting concerns. Although Jim Voorhies alleged in a counterclaim that
Stadelman Fruit negligently handled, packed, and marketed Voorhies’ fruit, Voorhies did
not assert any facts supporting a claim of negligence in response to Stadelman Fruit’s
summary judgment motion. The trial court granted Stadelman Fruit’s summary judgment
motion in its entirety. The trial court awarded Stadelman Fruit $103,632.95 in
prejudgment interest and $93,667.05 in attorney fees and costs.
LAW AND ANALYSIS
Issue 1: Whether the agreement between Stadelman Fruit and Jim Voorhies
requires Voorhies to pay to Stadelman Fruit any deficiency after applying the proceeds
from the sale of Voorhies’ crop to debt owed Stadelman Fruit?
Answer 1: Yes.
Jim Voorhies claims that he never agreed to pay any shortfall of money resulting
from the proceeds of his crop failing to retire the debt incurred to Stadelman Fruit for
advances and handling charges. Jim Voorhies does not posit that this argument raises a
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question of fact. Instead, he asserts that one party should prevail as a matter of law based
on the language of the fruit handling agreement. Voorhies argues he should prevail
because the fruit handling agreement lacks any language requiring his payment of any
shortfall of sums advanced. We disagree.
A reviewing court attempts to determine the parties’ intent by focusing on the
objective manifestations of the agreement, rather than on the unexpressed subjective
intent of the parties. Max. L. Wells Trust v. Grand Central Sauna & Hot Tub Co. of
Seattle, 62 Wash. App. 593, 602, 815 P.2d 284 (1991). The critical language in the fruit
handling agreement arises in paragraph 7 that addresses advances. The language dictates:
If Handler has agreed to make an advance to Grower, Grower hereby
agrees to execute any security agreement, promissory note, financing
statement, and other documents deemed reasonable and necessary by
Handler to ensure the repayment of such advances . . . .
CP at 77 (emphasis added). Although the language does not expressly require repayment
of any shortfall, the language does not declare that Stadelman Fruit waives any right to
repayment of the deficiency. Stadelman Fruit could demand that Jim Voorhies sign a
promissory note for debt owed and this provision would serve no purpose if Jim Voorhies
lacked an obligation to pay any deficiency after a credit for sale proceeds.
Jim Voorhies emphasizes that paragraph 7 of the fruit handling agreement refers to
“advances,” rather than “loans.” Nevertheless, Voorhies provides no authority to
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distinguish between a loan and an advance and does not explain why advances need not
be paid in full.
Jim Voorhies also highlights that he never signed a promissory note and
Stadelman Fruit never asked him to sign a note. Voorhies does not provide any authority,
however, establishing that a promissory note must evidence a debt in order that the debtor
become obligated to pay the debt. To the contrary, an “account” or a debt need not be
evidenced by any writing or promise to pay. In re Stratman’s Estate, 231 Iowa 480, 1
N.W.2d 636, 641-43 (1942).
Jim Voorhies asserts that Wallace v. Kuehner, 111 Wash. App. 809, 46 P.3d 823
(2002), requires a ruling in his favor. In Wallace, a father loaned his daughter money.
Thereafter the father discarded the promissory note and declared that, if his daughter lost
the money loaned, the amount would be taken from her inheritance. The court ruled that
the father could not recover on the debt because of the agreement to collect the money
only by deducting the sum from the daughter’s inheritance. Jim Voorhies supplies no
testimony that Stadelman Fruit ever agreed to forgo amounts owed to it for the crop years
2008, 2009, and 2010.
Jim Voorhies provided some testimony that Stadelman Fruit a decade earlier
agreed to take any default in payment from the next year’s crop. We note that such a
waiver of amounts owed occurred only after the sale of the crop. Voorhies provides no
testimony that Stadelman Fruit waived payment after the sale of the 2008, 2009, or 2010
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crops. Also, on appeal, Voorhies does not argue or provide authority that the earlier
practice constituted a custom that bound Stadelman Fruit in later years. Anyway, the
agreement in the earlier years was that Voorhies would deliver additional fruit to pay for
the debt. Voorhies exhibits no willingness to deliver any further crops to Stadelman
Fruit.
This court reviews an order for summary judgment de novo. Keck v. Collins, 184
Wash. 2d 358, 370, 357 P.3d 1080 (2015). The court must determine whether the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, 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; Parkin v. Colocousis,
53 Wash. App. 649, 653, 769 P.2d 326 (1989). Summary judgment on an issue of contract
interpretation is proper when the parties’ written intent, viewed in light of the parties’
other objective manifestations, has only one reasonable meaning. Hall v. Custom Craft
Fixtures, Inc., 87 Wash. App. 1, 9, 937 P.2d 1143 (1997).
We conclude that the fruit handling agreement bears only one reasonable meaning.
Jim Voorhies does not provide extrinsic testimony that clashes with that meaning.
Voorhies agrees the meaning of the fruit handling agreement creates only a question of
law.
Issue 2: Whether the mortgage secured debt for crops years after crop year 2008?
Answer 2: Yes.
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Jim Voorhies argues that the mortgage he signed in March 2008 did not extend to
any debt owed for the 2009 and 2010 crops. Since crops delivered to Stadelman Fruit in
2008 and the beginning of 2009 retired the 2008 debt, Voorhies contends that debt no
longer encumbers his property through the mortgage. In so arguing, Voorhies relies on
his own testimony that the parties never entered an agreement or understanding that the
mortgage applied to debt other than debt incurred in 2008. He does not testify, however,
that the parties ever expressly concurred that the mortgage did not cover debt beyond
crop year 2008. He provides no testimony that the parties bespoke about what crop years
the mortgage controlled. We deem the question of the debt covered by the mortgage to
be controlled by the language of the mortgage and fruit handling agreement.
The mortgage signed by Jim Voorhies in March 2008 posited that it secured “the
payment of all sums due [Stadelman Fruit] in providing crop financing for the 2008 crop
to be grown upon said premises, including all renewals, modifications, and extensions
thereof, and also such additional sums as shall be agreed upon.” CP at 85. The debt
created by advances in 2009 and 2010 could be considered renewals or modifications.
But we need not base our decision on such a conclusion since the 2009 and 2010 debt
resulted from such “additional sums as shall be agreed upon.” CP at 85. The language
does not require that both parties agree that the mortgage will secure additional sums,
only that the parties agree to additional sums provided by Stadelman Fruit for crop
financing. Jim Voorhies obviously agreed to the sums advanced in 2009 and 2010 or he
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would not have accepted the funds.
Issue 3: Whether Jim Voorhies owes interest on the debt owed to Stadelman Fruit?
Answer 3: Yes.
Jim Voorhies next contends that the fruit handling agreement does not afford
Stadelman Fruit interest on any debt owed. Nevertheless, an agreement need not
expressly provide for interest on any debt for interest to be owed. RCW 19.52.010 reads,
in part:
(1) Every loan or forbearance of money, goods, or thing in action
shall bear interest at the rate of twelve percent per annum where no
different rate is agreed to in writing between the parties. . . .
The statute applies to advances from one party to another. Hewitt v. Jones, 149 Wash.
360, 364-65, 271 P. 76 (1928); Puget Sound Telephone Co. v. Telechronometer Company
of America, 130 Wash. 468, 481, 227 P. 867 (1924).
Stadelman Fruit charged Jim Voorhies for interest from the date it filed its
complaint. Voorhies provided the trial court no countervailing calculation for interest
owed. The trial court correctly granted interest to Stadelman Fruit.
Issue 4: Whether Jim Voorhies created a genuine issue of material fact regarding
the accounting provided by Stadelman Fruit as to amounts owed?
Answer 4: No.
Next, Jim Voorhies claims Stadelman Fruit failed to account for all of Voorhies’
apple revenue in the company’s accounting. Stadelman Fruit included in its July 2011
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complaint an accounting summary, which included statements listing the advances made,
costs incurred, and sale proceeds received by Stadelman Fruit. Voorhies never then
challenged the accounting.
As part of this lawsuit, Jim Voorhies avers that Stadelman Fruit did not credit
three bins of apples and thereby failed to account for $26,014.74 in revenue during 2008.
Nevertheless, Stadelman Fruit’s Chief Financial Officer Tim Welch’s declaration and
attached accounting establishes that Stadelman Fruit credited Voorhies for the purported
missing pool returns totaling $26,014.74.
Jim Voorhies contends that Stadelman Fruit’s accounting for his individual return
for 2009 shows a “net” of $25,954.75, while the “pool return” shows a net credit to his
account of $61,662.89, a difference of $35,708.14. Tim Welch addressed this concern.
Voorhies misreads the pool and grower statements. Welch observed:
In sum, both statements are wholly consistent as to the revenue and
charges to Pool 4, that is, Mr. Voorhies’ apples, and that analysis is quite
simple. That is, the apples in Pool 4 returned $88,118.91 in gross revenue,
Pool 4 was therefrom charged with $62,164.14 in packing/storage charges,
and the difference of $25,954.75 was credited to Mr. Voorhies account.
The matter raised by Mr. Voorhies only serves to cause confusion as he
refers to the Pool Statement’s listing of internal accrual/cost type
accounting entries used by Stadelman in the management of its operation
and confuses that the “net amount credited to your account” is referring to
Stadelman (and not Mr. Voorhies) as Stadelman is the intended user of the
“Pool Statement.”
CP at 460-61. Tim Welch’s declaration demonstrates the pool returns to which Voorhies
refers actually are from 2010.
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Jim Voorhies next complains Stadelman Fruit did not credit him $11,896.11 in
2010. Nevertheless, Tim Welch’s declaration establishes that Stadelman Fruit credited
Voorhies with the correct amount and Voorhies again misread the accounting statements.
Although Stadelman Fruit initially omitted the income in its accounting, the company
later credited, as shown in records attached to Welch’s declaration, the full $11,896.11.
Issue 5: Whether any facts can sustain Jim Voorhies’ claim under the Consumer
Protection Act?
Answer 5: No.
Jim Voorhies also alleges the trial court incorrectly dismissed the Washington
Consumer Protection Act counterclaim. The five elements of a private Consumer
Protection Act action include: (1) an unfair or deceptive act or practice, (2) in the conduct
of trade or commerce, (3) which impacts the public interest, (4) injury to the plaintiffs in
their business or property, and (5) a causal link between the unfair or deceptive act and
the injury suffered. Mason v. Mortgage America, Inc., 114 Wash. 2d 842, 852, 792 P.2d
142 (1990).
Jim Voorhies highlights purported accounting inaccuracies to contend that
Stadelman Fruit’s bookkeeping constituted an unfair practice that could impact other
growers with whom Stadelman Fruit conducted business. But we have concluded no
facts show any accounting error.
Issue 6: Whether the independent duty doctrine bars Jim Voorhies’ negligence
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claim?
Answer 6: We need not address this issue since Voorhies no longer claims
Stadelman Fruit performed negligent acts.
Jim Voorhies claims the independent duty doctrine, contrary to the trial court’s
ruling, does not bar his negligence claim. To the extent the independent duty doctrine
still exists, the doctrine may bar a party to a contract from asserting a tort theory against
the other contracting party. Alejandre v. Bull, 159 Wash. 2d 674, 683, 153 P.3d 864 (2007).
In response to Stadelman Fruit’s summary judgment motion to grant it judgment
for debt owed and to dismiss Jim Voorhies’ counterclaims for Consumer Protection Act
violations and negligence, Voorhies raised no facts supporting his negligence theory.
During oral argument before this court, Voorhies, in response to questioning as to
whether he still asserted a negligence claim, answered that no negligence was asserted
before the trial court. Since Voorhies no longer asserts a claim of negligence, we need
not address whether the independent duty doctrine bars any claim.
Issue 7: Whether this court should grant Stadelman Fruit reasonable attorney fees
and costs incurred on appeal?
Answer 7: Yes.
Both Jim Voorhies and Stadelman Fruit request reasonable attorney fees according
to the attorney fees clause in the fruit handling agreement. Pursuant to RAP 18.1, we
grant Stadelman Fruit, as the prevailing party, reasonable attorney fees and costs incurred
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on appeal.
CONCLUSION
We affirm the trial court's grant of summary judgment in favor of Stadelman Fruit
for amounts owed, for foreclosure of the mortgage, and for dismissal of Jim Voorhies' ·
counterclaims. We grant Stadelman Fruit reasonable attorney fees and costs incurred on
appeal.
A majority of the panel has determined this opinionwill not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Korsmo, J. .1
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Siddoway, J. {J
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