Spokane Slavic Baptist Church v. Joe Trenchuk ( 2020 )

FILED
APRIL 7, 2020
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
SPOKANE SLAVIC BAPTIST ) No. 36565-4-III
CHURCH, )
)
Respondent, )
)
v. )
)
JOE TRENCHUK, individually and on )
behalf of his marital community dba )
GREEN GLOBAL ENTERPRISES, LLC, ) UNPUBLISHED OPINION
JOE TRENCHUK TRUST, )
)
Appellant, )
)
IVAN KRIGER, individually and on )
behalf of his marital community dba )
GREEN GLOBAL and GREEN GLOBAL )
ENTERPRISES, LLC, and GREEN )
GLOBAL ENTERPRISES, LLC, an )
inactive Washington limited liability )
company, )
)
Defendant. )
LAWRENCE-BERREY, J. — Joe Trenchuk appeals the trial court’s order granting
summary judgment in favor of Spokane Slavic Baptist Church. He argues there are
several genuine issues of material fact that preclude summary judgment. We disagree and
affirm.
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
FACTS
Joe Trenchuk and Ivan Kriger are co-owners of Green Global Enterprises, LLC
(Green Global). On February 14, 2014, Green Global agreed to acquire the old Fred
Meyer building, and Spokane Slavic Baptist Church (the Church) agreed to purchase it
from Green Global for $2,500,000. The parties agreed that the Church would pay Green
Global the purchase price over a period of 25 years at 5 percent interest per year.
From March 20 through May 6, Kriger sent a series of e-mails to the Church. The
e-mails generally requested the Church to quickly pay $250,000 to Kennedy Funding.
One e-mail referred to the $250,000 as “loan fees.” Clerk’s Papers (CP) at 239. The e-
mails explained that the $250,000 was to facilitate a $21 million loan Kennedy Funding
agreed to make to Green Global, which, in part, would allow Green Global to obtain the
old Fred Meyer building. The Church refused to pay $250,000 to facilitate Green
Global’s loan with Kennedy Funding.
The parties reached an agreement on May 15, 2014, memorialized by the following
deposit agreement:
Agreement Letter with Joe Trenchuk Trust
Spokane Slavic Baptist Church is depositing $250,000.00 (Two Hundred
Fifty Thousand) to Joe Trenchuk Trust account for the purpose of obtaining
the loan for the closing [of] the old building of Fred Meyer located at 555
E. Francis Ave. Spokane, Wa.
2
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
If the old building of Fred Meyer is not purchased by Spokane Slavic
Baptist Church by June 15, 2014, the $250,000 is refundable.
CP at 20. Mr. Trenchuk signed the deposit agreement on behalf of his trust, Mr. Kriger
signed on behalf of Green Global, and two Church representatives signed on behalf of the
Church.
In late May 2014, Mr. Trenchuk wired the $250,000 to Kennedy Funding at the
request of Mr. Kriger. The Church did not know of this. As of June 15, 2014, Green
Global had not obtained financing from Kennedy Funding nor was it in a position to
obtain the old Fred Meyer building, much less to sell it to the Church.
In July 2014, Green Global terminated its arrangement with Kennedy Funding.
Green Global released Kennedy Funding from all claims to the $250,000 in exchange for
receiving a partial refund of $30,900.
In December 2015, the Church and Green Global sent a joint letter to Kennedy
Funding requesting a refund of the $250,000 deposit. Kennedy Funding refused the
request. In May 2016 and May 2017, the Church sent written notices to Green Global and
Mr. Trenchuk requesting a refund of the $250,000 deposit. Green Global and Mr.
Trenchuk refused both requests.
In October 2017, the Church brought suit to collect the $250,000 deposit, plus
statutory interest. During discovery, the Church sent requests for admission and
3
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
interrogatories to Mr. Trenchuk. In one interrogatory answer, Mr. Trenchuk stated, “I
was informed by Ivan Kriger that the church had directed him to send the money to
Kennedy Funding so they could obtain the loan for the Fred Meyers [sic] building.” CP
at 375.
The Church eventually moved for summary judgment. Mr. Trenchuk responded to
the motion and argued there were material facts in dispute. By declaration, Mr. Trenchuk
contradicted his earlier interrogatory answer and claimed a Church representative had
directed him to send the $250,000 deposit to Kennedy Funding.
The trial court disregarded Mr. Trenchuk’s inconsistent claim in his declaration,
granted the Church’s motion for summary judgment, and awarded it $250,000 plus
statutory interest. Mr. Trenchuk appealed.
ANALYSIS
SUMMARY JUDGMENT STANDARDS
When reviewing an order of summary judgment, this court reviews the order de
novo. Keck v. Collins, 181 Wn. App. 67, 78, 325 P.3d 306 (2014), aff’d, 184 Wn.2d 358,
357 P.3d 1080 (2015). This court performs the same inquiry into the motion for summary
judgment as the trial court initially did. Id. The evidence and any reasonable inferences
are construed in a light most favorable to the nonmoving party. Id. at 78-79. Summary
4
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
judgment is only appropriate when no material facts are at issue, and the moving party is
entitled to judgment as a matter of law. Id.PURPORTED ISSUES OF MATERIAL FACT
Mr. Trenchuk argues the trial court erred by granting summary judgment because
there were genuine issues of material fact. He argues (1) the deposit agreement was
modified, (2) he complied with the modified deposit agreement and even the original
deposit agreement, (3) the Church received a refund, and (4) the Church was partly at
fault for its damages. In addition, Mr. Trenchuk argues the deposit agreement was
unconscionable. We address the unconscionability claim first.
1. Unconscionability claim
A contract is unconscionable if it is either substantively unconscionable or
procedurally unconscionable. Nelson v. McGoldrick, 127 Wn.2d 124, 131, 896 P.2d 1258(1995). Substantive unconscionability is found only where a contract is so one-sided that
it can be called “shocking to the conscience,” “monstrously harsh,” or “exceedingly
calloused.” Id. Procedural unconscionability is found where the manner in which the
contract was entered hid the terms of the contract or removed a party’s ability to
reasonably understand the terms. Id.5
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
Mr. Trenchuk argues the deposit agreement allowed the Church to trick him into
being a guarantor before it directed the money to Kennedy Funding. He argues the
Church knew the money would be wired to Kennedy Funding and would be
nonrefundable. This argument is not supported by any admissible evidence.
Mr. Kriger repeatedly asked the Church to send $250,000 to Kennedy Funding as a
nonrefundable loan fee. The Church refused to do this. The parties then entered into the
deposit agreement. The deposit agreement was very simple. It required Mr. Trenchuk to
deposit the money in his trust, to use the money only to purchase the old Fred Meyer
building, and to refund the money on request if the sale did not close by June 15, 2014.
Instead of using the money to purchase the old Fred Meyer building, Mr. Trenchuk wired
the money to Kennedy Funding. Whether he believed the money would be used to
purchase the former Fred Meyer building is immaterial. It was not used in this manner.
There is nothing unconscionable about an agreement requiring a person to hold money
and disburse it only for a specific purpose.
2. Performance claims
Mr. Trenchuk makes three separate arguments that he performed the deposit
agreement. We address each in order.
6
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
a. Purported performance of modified deposit agreement
Mr. Trenchuk argues the Church, either itself or through Mr. Kriger, modified the
deposit agreement to have him send the deposit to Kennedy Funding. This argument is
not supported by any admissible evidence.
Referring to his declaration, Mr. Trenchuk argues a Church representative told him
to transfer the funds to Kennedy Funding. This argument is barred under the Marshall1
rule.
The Marshall rule disallows a party from creating an issue of material fact by
submitting a self-serving declaration directly contradicting “unambiguous sworn
testimony” the same party made previously. Sluman v. State, 3 Wn. App. 2d 656, 697,
418 P.3d 125, review denied, 190 Wn.2d 1005, 430 P.3d 254 (2018). This rule is
narrowly construed, and, if the party gives an explanation in their affidavit explaining the
discrepancy, the court may consider the explanation’s plausibility. Id. at 697-98.
Mr. Trenchuk originally answered he was told by Mr. Kriger that the Church had
directed him to send the money to Kennedy Funding so it could obtain the loan for the old
Fred Meyer building. After the Church moved for summary judgment, Mr. Trenchuk
claimed, in his declaration, that a Church representative directed him to send the money
1
Marshall v. AC&S Inc., 56 Wn. App. 181, 782 P.2d 1107 (1989).
7
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
to Kennedy Funding. Mr. Trenchuk never explained the reason for his changed
recollection of this very important fact. Under the Marshall rule, the trial court properly
gave no consideration to the later inconsistent statement.
b. Purported performance of deposit agreement
Mr. Trenchuk makes an alternative argument. He argues Kriger told him to send
the deposit to Kennedy Funding, and the Church is bound by Kriger’s direction because
Kriger was the Church’s agent. Mr. Trenchuk relies on an agreement letter the Church
entered into on November 21, 2013, with Green Global.
In the 2013 letter, the Church authorized “Ivan Kriger, president of Green Global
Enterprises to be our sole negotiator on the property known as Fred Meyer—Located at
525-555 E. Francis Ave. Spokane, WA 99208.” CP at 219. The letter further stated,
“Ivan Kriger has the right of presenting all down payments and purchase price for
Spokane Slavic Baptist Church. Also he can enter into a contract with said seller for
purchase price and financing, should financing be available with said seller.” CP at 219.
In the letter, the Church agreed to “pay commissions to Green Global Enterprises Fifty
Four Thousand dollars ($54,000.00) for [Mr. Kriger’s] work.” CP at 219.
The May 15, 2014 deposit agreement was signed by all participants to the 2013
agreement. The 2014 deposit agreement superseded whatever authority the 2013
8
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
agreement granted over the purchase and financing of the old Fred Meyer building. More
explicitly, the deposit agreement required Mr. Trenchuk to disburse the Church’s
$250,000 deposit for one purpose only, for the Church’s purchase of the old Fred Meyer
building. Instead, Mr. Trenchuk sent the deposit money to Kennedy Funding, and it was
not used for the Church’s purchase of the old Fred Meyer building.
The deposit agreement also required Mr. Trenchuk to refund the $250,000 upon
the Church’s request if the purchase did not occur by June 15, 2014. The Church never
purchased the building. The Church twice requested Mr. Trenchuk to refund the
$250,000, and he twice refused. Even viewing the facts in the light most favorable to Mr.
Trenchuk, he did not perform the deposit agreement.
c. Purported performance: The Church purchased the old Fred
Meyer building by June 15, 2014
Mr. Trenchuk makes a second alternative argument. He argues he performed the
deposit agreement because the Church “purchased” the old Fred Meyer building by
June 15, 2014. This argument requires us to determine the meaning of “purchase” as
used in the parties’ deposit agreement.
We quote the focal sentence of the agreement: “If the old building of Fred Meyer
is not purchased by Spokane Slavic Baptist Church by June 15, 2014, the $250,000 is
refundable.” CP at 20 (emphasis added).
9
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
This court interprets undefined terms in contracts according to the plain meaning
of the words used. Syrovy v. Alpine Res., Inc., 68 Wn. App. 35, 40, 841 P.2d 1279(1992), aff’d, 122 Wn.2d 544, 859 P.2d 51 (1993). Unless a term is open to multiple
reasonable interpretations, the issue of interpretation is a matter of law. Ladum v. Util.
Cartage, Inc., 68 Wn.2d 109, 116, 411 P.2d 868 (1966).
The word “purchase” has multiple but similar meanings. WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1844 (1993) defines “purchase” as “to get into one’s
possession,” “to acquire (real estate) by any means other than descent or inheritance,” “to
obtain (as merchandise) by paying money or its equivalent,” and “to obtain (something
desired) by an outlay (as of labor, danger, sacrifice).” All of these definitions have a
common meaning—acquiring or obtaining. It is undisputed the Church did not acquire or
obtain the old Fred Meyer building by June 15, 2014, or even after that date. The Church
twice demanded its deposit back, and Mr. Trenchuk twice refused. We conclude Mr.
Trenchuk did not perform the deposit agreement.
3. Receipt of refund
Mr. Trenchuk argues the Church received a refund of $30,900 from Kennedy
Funding. Mr. Trenchuk relies on testimony given by Mr. Kriger during his deposition.
However, Mr. Trenchuk misconstrues Mr. Kriger’s testimony and the facts in evidence.
10
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
During his deposition, Mr. Kriger mentioned an eventual refund from Kennedy
Funding. However, this refund, $30,900, was given from Kennedy Funding to Green
Global. Mr. Kriger’s deposition makes this clear as does a letter from Kennedy Funding
releasing the funds to Green Global. There are no admissible facts to support Mr.
Trenchuk’s argument the Church received these funds.
4. Responsibility for damages
Mr. Trenchuk argues the Church caused its own damages when, in December
2015, it informed Kennedy Funding it did not wish to pursue a loan. This argument also
is contrary to the record.
The record establishes, in July 2014, Green Global terminated its financing
arrangement with Kennedy Funding and, in exchange for releasing Kennedy Funding,
received $30,900. By December 2015, Kennedy Funding was not arranging financing for
Green Global or the Church, and the Church’s $250,000 was gone.
CONCLUSION
There are no genuine issues of material fact. Mr. Trenchuk’s arguments generally
misconstrue the evidence. The trial court did not err by granting summary judgment.
11
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
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:
Pennell, C.J.
12