IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BLACK DIAMOND DEVELOPMENT COMPANY, LLC, a Washington No. 71114-8-1 Limited Liability Corporation; LEE WITTENBERG, individually and DIVISION ONE on behalf of his marital community; WAYNE COURTNEY, individually and on behalf of his marital community, UNPUBLISHED OPINION c
Appellants,
v.
UNION BANK, N.A. j •'•'»•)
Respondent. FILED: March 30, 2015
Leach, J. — Black Diamond Development LLC and guarantors Lee
Wittenberg and Wayne Courtney appeal the dismissal of their claims against
Union Bank for an alleged breach of a permanent financing agreement and an
award of attorney fees to Union Bank. Union Bank challenges the timeliness of
this appeal. Because the court resolved Union Bank's counterclaim no earlier
than October 17, 2013, Black Diamond timely appealed. Because the alleged
financing agreement omits material terms and does not satisfy the requirements
of 12 U.S.C. § 1823(e), Union Bank has no contractual obligation to extend
permanent financing to Black Diamond. But because Black Diamond put Union
Bank on notice of its improper accounting claim and the court did not consider NO. 71114-8-1/2
the merits of the claim, the trial court erroneously dismissed it. As a result, no
party has yet prevailed in this case, and any award of attorney fees is premature.
We affirm in part, reverse in part, and remand for proceedings consistent with
this opinion.
FACTS
On November 28, 2005, Black Diamond Development LLC and Frontier
Bank made an agreement for the construction financing of two commercial
buildings in Black Diamond, Washington. They signed 11 related documents for
the transaction. These included a construction loan agreement, commercial
guarantees executed by Black Diamond members Lee Wittenberg and Wayne
Courtney, a deed of trust, a promissory note, and the notice of final agreement.
In 2007, Black Diamond and Frontier Bank signed two documents
extending the maturity date of the construction loan agreement. The first
extended it 90 days, and the second extended it until September 25, 2010.
On April 30, 2010, Frontier Bank failed. Union Bank became the
successor in interest to the Federal Deposit Insurance Corporation (FDIC) as
receiver of Frontier Bank and acquired the Black Diamond construction loan. In
May 2010, Union Bank contacted Black Diamond to inform it that the loan
agreement would mature in September. Black Diamond challenged that date
based on its understanding that it had an agreement with Frontier Bank for NO. 71114-8-1/3
permanent financing. From 2010 to July 2012, Black Diamond continued to
make principal and interest payments to Union Bank, despite the loan
agreement's maturation.
In January 2012, Union Bank issued a notice of default to Black Diamond,
demanding all funds owed under the loan agreement. Union Bank issued
revised notices in June and August of 2012, stating the amount it claimed Black
Diamond owed after it defaulted by failing to pay the full balance owed when the
loan matured in 2010. In response, Black Diamond denied the default and
requested information about Union Bank's default calculation.
Procedural History
On August 9, 2012, Black Diamond filed a complaint, asserting breach of
contract and estoppel claims. For relief, it requested damages and a permanent
injunction to prevent foreclosure or pursuit of default as long as it made the
"required monthly payment on the loan." On September 11, 2012, Black
Diamond filed a "motion for preliminary injunction and order directing defendant
to provide an accounting." The trial court did not rule on this motion. To avoid
foreclosure, Black Diamond paid "'under protest'" the amount Union Bank
claimed due and informed the bank that it did "'not agree that the bank has
properly calculated the amount that is owing for many reasons, which is the basis
of the lawsuit.'" NO. 71114-8-1/4
Union Bank filed its answer and counterclaim on June 18, 2013. In the
counterclaim, it alleged that Black Diamond owed it attorney fees under the
construction loan agreement and Wittenberg and Courtney owed them under
their guarantees. Black Diamond, Wittenberg, and Courtney filed a reply on July
3, 2013, denying any default, alleging that Wittenberg and Courtney's guarantee
liability ended when Black Diamond paid the full amount Union Bank claimed,
and asserting seven affirmative defenses.
In late 2012, Black Diamond served its first discovery request, asking for
documents revealing the amount and calculations for every line item charged on
default. On July 2, 2013, the trial court granted Black Diamond's motion to
compel Union Bank's production of internal documents.
On July 19, 2013, Union Bank filed a motion for summary judgment.
Black Diamond filed a motion to stay any hearing on this motion until after Union
Bank provided the ordered discovery materials. The trial court granted summary
judgment to Union Bank on August 30, 2013. The trial court decided that Union Bank had no obligation to provide permanent financing to Black Diamond
because the alleged agreement "is missing some material provisions that defeat
it as a contract. . . . [I]f I'm looking at the commitment letter, there aren't
enough—what is left to negotiate is really a vast majority of the contract and not
simply small terms." NO. 71114-8-1/5
On September 9, 2013, Black Diamond filed a motion for clarification and
reconsideration, asking the court to address its accounting claim based upon
Union Bank's alleged misapplication of payments. On October 2, 2013, the trial
court denied Black Diamond's motion. On October 17, 2013, the trial court
entered an order awarding Union Bank $93,154.54 in attorney fees against Black
Diamond, Wittenberg, and Courtney. On October 31, 2013, the court entered a
final judgment, dismissing all claims with prejudice and holding Black Diamond,
Wittenberg, and Courtney jointly and severally liable for the attorney fees.
Black Diamond, Wittenberg, and Courtney appealed on November 5,
2013.
STANDARD OF REVIEW
This court reviews a summary judgment motion de novo.1 A court
properly grants summary judgment if no genuine issue of material fact exists and
the moving party is entitled to a judgment as a matter of law.2
ANALYSIS
Timeliness of Appeal
Union Bank challenges this court's authority to hear this appeal, claiming
Black Diamond, Wittenberg, and Courtney filed it too late. Black Diamond
1 Snohomish County v. Ruqg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002). 2 CR 56(c). -5- NO. 71114-8-1/6
argues that it had 30 days after the final judgment entered on October 31, 2013,
to appeal all issues decided by the trial court. Union Bank argues that the time to
appeal should be measured from one of two dates, either August 30, when the
trial court entered its order granting Union Bank summary judgment, or October
1, when the trial court entered its order denying Black Diamond's motion for
reconsideration and clarification. It argues that those orders resolved all
substantive claims, leaving undecided only issues of attorney fees.
RAP 5.2(a) generally requires that a party seeking appellate review of a
superior court decision file a notice of appeal within 30 days after the trial court's
entry of a final judgment. For purposes of this deadline, this rule considers as
final a judgment that finally decides all substantive issues between the parties but
reserves for a future decision "an award of attorney fees or costs."3
A timely notice of appeal of a trial court decision relating to attorney fees and costs does not bring up for review a decision previously entered in the action that is otherwise appealable under rule 2.2(a) unless a timely notice of appeal has been filed to seek review of the previous decision.[4]
A motion for reconsideration of a final judgment extends the appellate
filing deadline to 30 days after the trial court's entry of an order on that motion.5
3 Carrara. LLC v. Ron & E Enters.. Inc.. 137 Wn. App. 822, 825-27, 155 P.3d 161 (2007); RAP 2.2(a)(1). 4 RAP 2.4(b). 5 RAP 5.2(e); Brower v. Pierce County, 96 Wn. App. 559, 562, 984 P.2d 1036 (1999) (citing Buckner. Inc. v. Berkev Irriq. Supply, 89 Wn. App. 906, 911- 12,951 P.2d 338 (1998)). -6- NO. 71114-8-1/7
"[Ojnly in extraordinary circumstances and to prevent a gross miscarriage of
justice"6 will an appellate court extend the time to file a notice of appeal. Black
Diamond has not requested an extension of time.
When a case includes multiple claims,
the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment.[7]
If the trial court has not decided all of the claims or all of the rights and liabilities
of the parties, a judgment "is subject only to discretionary review until the entry of
a final judgment adjudicating all the claims, counts, rights, and liabilities of all the
parties."8
On August 30, 2013, the trial court entered a summary judgment order
dismissing Black Diamond's claims with prejudice. But the court did not decide
Union Bank's counterclaim for attorney fees against Black Diamond under the
construction loan agreement and against Wittenberg and Courtney under their
commercial guarantees. The plaintiffs asserted seven affirmative defenses to the
counterclaim, many of which challenged the viability of the contracts providing
the basis for the counterclaim. The order denying Black Diamond's motion for
6 RAP 18.8(b). 7 CR 54(b). 8 RAP 2.2(d). -7- NO. 71114-8-1/8
reconsideration also did not address the merits of Union Bank's counterclaim or
the plaintiffs' affirmative defenses to it. Until the court decided the merits of these
issues, it had not entered a final judgment that commenced the 30-day appeal
period.
Union Bank cites Carrera, LLC v. Ron & E Enterprises, Inc.,9 and Bushonq
v. Wilsbach10 for the proposition that a party must appeal an order granting
summary judgment and dismissing all claims, though a court has not decided
attorney fees and costs. But as Black Diamond argues, in Carrera and Bushong
appellants appealed more than 30 days after a court decision resolving all claims
and establishing a right to recover fees. This precluded them from challenging
the earlier decision establishing a legal basis for the fees awarded by a later
decision.11 The trial court's summary judgment order and its order denying
reconsideration left unresolved more than the amount of attorney fees and costs.
The court's October 17, 2013, order granting attorney fees resolved the seven
alleged affirmative defenses to the counterclaim as well as the individual
plaintiffs' liability on their guarantees. Thus, Carrera and Bushonq do not support
Union Bank's position. Because no final judgment resolving Union Bank's
9 137 Wn. App. 822, 825, 155 P.3d 161 (2007). 10 151 Wn. App. 373, 376-77, 213 P.3d 42 (2009). 11 Carrara, 137 Wn. App. at 826; Bushonq, 151 Wn. App. at 376. -8- NO. 71114-8-1/9
counterclaim entered before October 17, 2013, Black Diamond timely filed its
notice of appeal on November 5, 2013.
Permanent Financing
Black Diamond contends that the record establishes the existence of
genuine issues of material fact about an agreement for permanent financing.
Union Bank responds that the record shows no genuine issues of material fact
exist about the failure of Black Diamond and Frontier to agree to necessary
terms, about the failure of Black Diamond to perform conditions required under
its alleged contract, or about the application of 12 U.S.C. § 1823(e) to bar Black
Diamond's claim.
Washington courts use an objective manifestation test to determine if
parties have formed a contract.12 This means that the parties must objectively
manifest their mutual agreement to the contract terms.13 In addition, a contract
for real estate financing "must be definite enough on material terms to allow
enforcement without the court supplying those terms."14
Black Diamond argues that Frontier Bank's loan commitment letter, the
2005 loan agreement documents, and later documents authored by a Frontier
Bank vice president meet these requirements or at least raise genuine issues of
12 Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 177, 94 P.3d 945 (2004). 13 Keystone Land & Dev., 152 Wn.2d at 177. 14 Setterlund v. Firestone. 104 Wn.2d 24, 25, 700 P.2d 745 (1985). -9- NO. 71114-8-1/10
material fact. Union Bank disputes whether the court should consider some of
these documents and contends that they do not contain all of the material and
essential terms. It identifies as missing the loan amount, default terms,
prepayment terms, and cure rights. But Black Diamond responds that the
commitment letter and promissory note contain the amount agreed upon. It
claims the 2007 agreement, the promissory note, and the deed of trust provide
the agreed upon default terms and cure rights. It also argues that the 2007
agreement and the promissory note contain the prepayment terms.
Union Bank first argues RCW 19.36.110 prohibits the use of e-mail or
other correspondence to establish the rights and obligations of the parties. This
statute states, "The rights and obligations of the parties to a credit agreement
shall be determined solely from the written agreement." Because the documents
relied upon by Black Diamond do not establish an enforceable agreement, we do
not need to decide this issue.
Union Bank next argues that no mutual assent to necessary terms
occurred. In Hubbell v. Ward,15 the court identified 13 material terms absent from
the real estate contract in issue required to support a specific performance claim.
The contract contemplated a future purchase contract, but the parties had not
specified the terms of this contract. As a result, the court did not enforce the
15 40 Wn.2d 779, 782-83, 246 P.2d 468 (1952). -10- NO. 71114-8-1/11
contract because no mutual assent occurred.16 The 13 necessary terms included
the right to default.17 A contract must also contain a price or amount.18
Black Diamond cites Farm Crop Energy, Inc. v. Old National Bank of
Washington19 to argue that the loan documents contained sufficient terms.
Though the Farm Crop court did not address the issue of what material terms an
agreement for permanent financing must contain and remanded the case on
different grounds, Black Diamond finds it instructive because the court tacitly
accepts a trial court jury instruction, stating, a "loan commitment is a written
contract which obligates the bank to loan money to the plaintiff... in accordance
with the terms and conditions of the commitment."20 The commitment letter
produced in full by the dissent in that case contains certain terms—interest rate,
amortization, collateral, duration, payment schedule, and loan amount.21 Black
Diamond argues that the Frontier Bank commitment letter with similar terms also
creates a contract.
But, as Union Bank correctly notes, Frontier Bank's loan commitment
letter offered no more than an "agreement to agree,"22 unenforceable in
16 Hubbell, 40 Wn.2d at 786-87. 17 Hubbell, 40 Wn.2d at 782. 18 Hubbell, 40 Wn.2d at 780-81; Sea-Van Invs. Assocs. v. Hamilton, 125 Wn.2d 120, 129, 881 P.2d 1035 (1994). 19 109 Wn.2d 923, 750 P.2d 231 (1988). 20 Farm Crop, 109 Wn.2d at 938 n.2 (Callow, J., dissenting). 21 Farm Crop, 109 Wn.2d at 934-36 (Callow, J., dissenting). 22 See Keystone Land & Dev., 152 Wn.2d at 175-76. -11- NO. 71114-8-1/12
Washington.23 The letter states, "When all conditions governing a roll over loan
have been met, Frontier Bank shall have the exclusive right to place the
permanent financing of the subject property for a maximum period of three
months at terms and conditions that are acceptable to Borrower and Lender."
A document contemplating future negotiations does not establish mutual
assent to a binding agreement.24 To be enforceable, "[a] contract to enter into a
future contract must specify all its material and essential terms, and leave none
to be agreed upon as the result of future negotiations."25 The commitment letter
cannot be read to promise more than permanent financing on future "terms and
conditions that are acceptable to Borrower and Lender." It plainly contemplates a
future agreement for permanent financing at unstated terms and conditions. The
documents identified by Black Diamond do not show any objective manifestation
of mutual intent to incorporate the terms of the 2005 loan documents in
permanent financing. At best, they reaffirm Frontier Bank's initial promise to
provide permanent financing on terms to be negotiated in the future.
Further, the record shows that Black Diamond never met the conditions
described in the documents it claims establish an agreement for permanent
financing. The commitment letter identified two conditions Frontier required
23 Keystone Land & Dev., 152 Wn.2d at 176. 24 Keystone Land & Dev., 152 Wn.2d at 179. 25 Hubbell, 40 Wn.2d at 784-85; Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373(1993). -12- NO. 71114-8-1/13
before making a loan for permanent financing: (1) construction of Building C and
(2) the aggregate collected rents of both buildings B and C equal $381,000 or
more. Black Diamond argues that it fulfilled the condition when it achieved
aggregate collected rent of $381,000 for building B alone. But it never built
Building C, and the record does not reveal that the parties agreed to waive that
condition.26 At oral argument, Black Diamond conceded that the absence of
Building C would materially affect the value of the collateral it offered for
permanent financing.
Finally, Union Bank claims that 12 U.S.C. § 1823(e) bars Black Diamond's
contract claim. This statute limits the agreements enforceable against the FDIC
or its successor in interest. To be enforceable, the agreement must (1) be in
writing, (2) be executed by the parties contemporaneous with the acquisition of
the asset (permanent loan), and (3) be approved by the bank's board of directors
or loan committee, with this approval reflected in meeting minutes maintained
continuously by the bank as an official record.27 An agreement must satisfy all
these requirements to be enforceable against the FDIC or its successor in
interest.28
26 See Sea-Van Invs.. 125 Wn.2d at 127. 2712 U.S.C. § 1823(e); D'Oench, Duhme & Co. v. Fed. Deposit Ins. Corp., 315 U.S. 447, 456, 62 S. Ct. 676, 86 L. Ed. 956 (1942). 28 Bell & Murphy & Assocs., Inc. v. Interfirst Bank Gateway, N.A.. 894 F.2d 750, 754 (5th Cir. 1990); see Nw. Land & Inv.. Inc. v. New W. Fed. Sav. & Loan Ass'n. 64 Wn. App. 938, 943-44, 827 P.2d 334 (1992). -13- NO. 71114-8-1/14
Union Bank argues that no genuine issue of material fact exists as to
whether the parties fully and contemporaneously executed an agreement for
permanent financing. Black Diamond argues that the loan documents expressly
contained a permanent financing obligation, placing this situation outside of that
covered by 12 U.S.C. § 1823(e).29 But "the proper inquiry is 'whether the
borrower lent himself to a scheme or arrangement that would be likely to mislead
or deceive banking authorities.'"30 Black Diamond relies upon a 2005 loan
agreement, a commitment letter, and 2007 agreements executed at different
times. These documents do not satisfy the requirement for document execution
contemporaneous with acquisition of the pertinent asset. 12 U.S.C. § 1823(e)
bars Black Diamond's claims.
Improper Accounting
Black Diamond asserts that genuine issues of material fact exist
concerning its claim for "incorrect and excessive amounts" Union Bank charged it
on default and that the court erred in dismissing its motion for reconsideration
and clarification. Black Diamond contends the court failed to decide if Union
Bank improperly calculated the amount Black Diamond owed on default, as well
29 See In re Beitzell & Co., Inc.. 163 B.R. 637, 649 (Bankr. D.D.C. 1993) ("A careful examination of the cases finding that a claim or defense is barred by D'Oench and/or § 1823(e) reveals that those defenses or claims are premised solely on unrecorded agreements, promises or representations and not on any obligation found explicitly in the loan documents."). 30 Beitzell, 163 B.R. at 646 (incorrectly Quoting D'Oench, 315 U.S. at 460). -14- NO. 71114-8-1/15
as whether the bank charged Black Diamond for environmental regulation
compliance reviews and an appraisal after assuring Black Diamond it would not.
Union Bank asserts that Black Diamond did not plead this claim and that in any
case the improper accounting claim was not ripe for review.
Washington requires a party to give proper notice of a claim to opposing
parties in its pleadings through "'a concise statement of the claim and the relief
sought.'"31 A complaint fails if it does not give defendants proper notice.32 But
courts construe pleadings "to do substantial justice,"33 and even if a "claim 'is not
a vision of precise pleading,'" it may still give the notice required by CR 8.34
In its original complaint, Black Diamond alleged that it paid Union Bank
$61,350 as an up-front permanent loan commitment fee, that Union Bank did not
credit Black Diamond for loan payments, and that the bank improperly charged
Black Diamond for appraisal and environmental reviews. The complaint stated,
24. ... Plaintiffs believe that Defendant has improperly calculated the interest, failed to properly apply payments to principal and is seeking repayment of improper amounts in the appraisal and environmental review categories, as those costs relate,
31 Champagne v. Thurston County, 163 Wn.2d 69, 84, 178 P.3d 936 (2008) (quoting Pac. Nw. Shooting Park Ass'n v. City of Seguim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006)); CR 8(a). 32 Champagne. 163 Wn.2d at 84. 33 CR 8(f). 34 Burnet v. Spokane Ambulance. 131 Wn.2d 484, 492, 933 P.2d 1036 (1997) (quoting Schoeninq v. Grays Harbor Cmtv. Hosp., 40 Wn. App. 331, 336- 37, 698 P.2d 593 (1985)). -15- NO. 71114-8-1/16
substantially or in part, to the very loan which Plaintiffs sought and Defendant refused to give.
In its answer and counterclaim, Union Bank affirmed the amounts it claimed
Black Diamond owed and denied the allegations in paragraph 24. We conclude
that Black Diamond sufficiently pleaded a claim that Union Bank failed to properly
calculate the amount owed on default.
Union Bank argues that Black Diamond proved its original complaint did
not assert this claim because it later served a proposed amended complaint,
specifically stating this claim before summary judgment and filed a motion for
clarification also addressing the improper accounting claim postsummary
judgment. Union Bank also argues that Black Diamond untimely attempted to
amend the complaint under CR 15(a) and King County Local Rule (KCLR) 4.2 by
surreptitiously adding the claim into its motion for clarification. The bank cites
Doyle v. Planned Parenthood of Seattle-King County, Inc..35 Haselwood v.
Bremerton Ice Arena. Inc.,36 and Parry v. Windermere Real Estate/East, Inc.,37 to
35 31 Wn. App. 126, 132, 639 P.2d 240 (1982) (plaintiff improperly tried to amend a complaint to include a products liability claim not recognized by Washington). 36 137 Wn. App. 872, 889-90, 155 P.3d 952 (2007) aff'd sub nom. Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 210 P.3d 308 (2009) (the Court of Appeals found no prejudice in the trial court's dismissal of the motion to amend and claims were groundless because they alleged a violation of Washington's public works act, chapter 39.04 RCW, though the case involved a private project). 37 102 Wn. App. 920, 10 P.3d 506 (2000). Union Bank cites this case to show that KCLR 4.2(a)(1) prohibits raising additional claims or defenses after the date designated in the case schedule. But the court actually concludes that "it -16- NO. 71114-8-1/17
support this position. But we do not find cases about late amendments to a
complaint helpful because we conclude that Black Diamond sufficiently pleaded a
claim for improper accounting in its original complaint. While Black Diamond's
proposed amended complaint more clearly asserted this claim, this clearer
statement does not alter the fact that paragraph 24 of its original complaint
provided sufficient notice to Union Bank.
Union Bank also claims that the improper accounting claim first became
ripe when Black Diamond asked Union Bank for its payoff demand in October
2012, after it filed its August 2012 complaint. To determine if a claim presents a
cause of action ripe for review, a court evaluates the fitness of the issues for
judicial review and the hardship that withholding consideration would bring to the
parties.38 Union Bank first issued a notice of default to Black Diamond on
January 11, 2012. This notice demanded an aggregate amount of $2,767,089.79
due, with interest accruing daily. Union Bank issued a new notice on June 11,
2012. This default notice provides an accounting, demands payment, lists
consequences of default, and states that borrowers and guarantors have
recourse to the courts to "contest the alleged default on any proper ground." It
would defy logic to hold that a party's properly preserved defense is waived merely by signing a form required by local rule for case scheduling and management." Parry, 102 Wn. App. at 928. 38 First United Methodist Church v. Hearing Exam'r, 129 Wn.2d 238, 245, 916 P.2d 374 (1996). -17- NO. 71114-8-1/18
includes a claim for costs including an "appraisal" of $11,300.00 and a fee for
"environmental" of $2,200.00. A final August 13, 2012, default notice contains
the same information. We conclude that the specific amounts Union Bank
demanded and the foreclosure Black Diamond faced if it did not pay those
amounts made the issue ripe for review.
The court erroneously found that "all of plaintiffs' claims arose out of
plaintiffs' mistaken belief that the Construction Loan Agreement obligated Union
Bank to extend permanent financing" and did not address the issue of an alleged
improper accounting. We reverse the dismissal of this claim.39
Equitable Estoppel
The trial court also dismissed Black Diamond's equitable estoppel claim.
Black Diamond argues that "[independent from overages on default," this court
should estop Union Bank from collecting default interest and penalties because
of Union Bank's representations about the extension of permanent financing.
Union Bank cites case law to argue that equitable estoppel may operate only as
a defense, not an offense. Therefore, the bank argues, Black Diamond may not
assert its estoppel claim.
39 See Beers v. Ross, 137 Wn. App. 566, 569, 154 P.3d 277 (2007); Ash v.Dep't of Labor & Indus., 173 Wn. App. 559, 566-67, 294 P.3d 834 (2013). -18- NO. 71114-8-1/19
But a party seeking damages based on an estoppel claim must assert a
promissory estoppel claim, not a claim for equitable estoppel.40 While at least
one Washington case recasts a claim for equitable estoppel as one for
promissory estoppel,41 we decline to do so here. A claim for promissory estoppel
requires a plaintiff to prove that a promise was made and the promisor should
reasonably expect that promise to cause the promisee to change positions, the
promise does cause the promisee to do so, and the promisee justifiably relies on
the promise in such a way that a court's enforcement of the promise provides the
only way to prevent injustice.42
Black Diamond has not presented evidence sufficient to create a genuine
issue of material fact about any promise for permanent financing on which it
could justifiably rely. The trial court did not err in dismissing its estoppel claim.
Motion To Stay Pending Discovery
Before Union Bank filed its motion for summary judgment, the trial court
granted Black Diamond's motion to compel Union Bank to provide e-mail
documentation. When Union Bank filed its summary judgment motion, Black
Diamond filed a CR 56(f) motion for a stay until it received pending discovery.
40 Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 259, 616 P.2d 644 (1980); McCormick v. Lake Wash. Sch. Dist., 99 Wn. App. 107, 117, 992P.2d511 (1999). 41 See, e.g., McCormick, 99 Wn. App. at 117. 42 Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 171-72, 876 P.2d 435 (1994). -19- NO. 71114-8-1/20
The court reserved its decision on the CR 56(f) motion for oral argument on
August 30, 2013. On that date, the trial court granted Union Bank's summary
judgment motion, without the bank's production of documents.43
An appellate court reviews denial of a CR 56(f) motion for abuse of
discretion.44 A trial court abuses its discretion when its decision is manifestly
unreasonable or based upon untenable grounds or untenable reasons.45 If the
requesting party does not offer a good reason for the delay in obtaining the
desired evidence or fails to state what the evidence would establish or the
evidence will not raise a genuine issue of material fact, the court may deny the
motion.46
Black Diamond argues that it required additional discovery to resolve
factual issues about the intent of the parties and the meaning of agreement
terms. Union Bank counters that no genuine issue of material fact as to the
parties' mutual assent to terms exists because the alleged agreement did not
43 As Union Bank mentions, the standard under CR 26(b)(1) requires only that requested discovery be "relevant to the subject matter involved in the pending action," and thus the court could grant a CR 26 motion but deny a CR 56(f) motion under the rule's more stringent standard. 44 Tellevik v. 31641 W. Rutherford St., 120 Wn. 2d 68, 90, 838 P.2d 111 (1992) (citing Coqqle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990)). 45 T.S. v. Boy Scouts of Am.. 157 Wn.2d 416, 423, 138 P.3d 1053 (2006) (quoting State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). 46 Pitzer v. Union Bank of Cal.. 141 Wn.2d 539, 556, 9 P.3d 805 (2000) (quoting Tellevik. 120 Wn.2d at 90). -20- NO. 71114-8-1/21
contain necessary material terms. Therefore internal e-mail could not prove to a
fact finder any bilateral intent to agree.
Black Diamond sought the requested documents to prove the existence
and scope of a contract for permanent financing, breach of Frontier Bank's duty
to act in good faith, and the application of the D'Oench47 doctrine under 12
U.S.C. § 1823(e). But Union Bank had placed the loan file into evidence. Black
Diamond does not show how any further evidence would have raised an issue of
material fact about the missing necessary material terms. Thus, we conclude
that the court did not abuse its discretion when it denied Black Diamond's motion
for stay pending discovery.
Wittenberg and Courtney's Joint and Several Liability
In its October 17, 2013, order, the trial court stated that the attorney fees
clause in the 2005 loan agreement and the commercial guarantees entitled
Union Bank to attorney fees and that "[pjlaintiffs Lee Wittenberg and Wayne
Courtney are individually liable for Union Bank's attorneys' fees under the terms
of the Commercial Guaranties." The October 31, 2013, judgment states,
"Plaintiffs Black Diamond Development Company, LLC, Lee Wittenberg and
Wayne Courtney are jointly and severally liable for Union Bank, N.A.'s attorneys'
fees and costs." Black Diamond argues that the court erred in finding Wittenberg
47 D'Oench. Duhme & Co. v. Fed. Deposit Ins. Corp.. 315 U.S. 447, 62 S. Ct. 676, 86 L Ed. 956(1942). -21- NO. 71114-8-1/22
and Courtney liable for attorney fees because Black Diamond paid the principal
debt and asserts that the court prematurely awarded attorney fees because it
never addressed the improper accounting issue.
This court reviews de novo whether a contractual provision authorizes an
award of attorney fees.48 Under Washington law, "when [a] principal debt has
been discharged, the guarantor is likewise relieved of liability."49 But if a
contract's language provides otherwise, a court will hold a guarantor liable.50
Here, the 2005 loan agreement states, "Borrower agrees to pay upon demand all
of Lender's costs and expenses, including Lender's attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement of this Agreement."
The commercial guaranty agreements signed by Wittenberg and Courtney,
respectively, provide, "Guarantor agrees to pay upon demand . . . Lender's
attorneys' fees and Lender's legal expenses, incurred in connection with the
enforcement of this Guaranty." The agreements make each guarantor
responsible for the "Indebtedness of Borrower to Lender" and define
indebtedness to include attorney fees.
48 Tradewell Grp.. Inc. v. Mavis. 71 Wn. App. 120, 126, 857 P.2d 1053 (1993). 49 Fruehauf Trailer Co. of Canada Ltd. v. Chandler. 67 Wn.2d 704, 707, 409P.2d651 (1966). 50 Seattle-First Nat'l Bank v. W. Coast Rubber Inc.. 41 Wn. App. 604, 609- 10, 705 P.2d 800 (1985). -22- NO. 71114-8-1/23
This action arose out of Black Diamond's breach of contract claims
asserted under the 2005 agreement and the 2007 agreement. Because the
complaint named Wittenberg and Courtney as plaintiffs and they sued as
guarantors and Union Bank incurred legal expenses "in connection with the
enforcement of this Guaranty," we hold that despite the payment of the principal
debt, the contract language makes Wittenberg and Courtney jointly and severally
liable for attorney fees.
However, in a contract dispute, a court only awards attorney fees to a
prevailing party.51 Because the trial court did not resolve the issue of improper
accounting, the prevailing party cannot be determined yet. The trial court
prematurely awarded attorney fees to Union Bank. As this court suggested to
counsel at oral argument, the amounts at issue strongly suggest the ultimate
outcome of this issue. But Black Diamond has the right to have this issue
decided by the trial court after resolution of its accounting claim. On remand, the
trial court shall also have the authority to award attorney fees on appeal to the
ultimately prevailing party, if any.
CONCLUSION
Black Diamond timely filed its appeal on November 5, 2013, because the
trial court did not decide all claims of all parties until it determined the guarantors'
51 RCW 4.84.330; Wachovia SBA Lending. Inc. v. Kraft. 165 Wn.2d 481, 489, 200 P.3d 683 (2009). -23- NO. 71114-8-1/24
joint and several liability on October 17, 2013. Because the alleged financing
agreement omits material terms and does not satisfy the requirements of 12
U.S.C. § 1823(e), Union Bank has no contractual obligation to extend permanent
financing to Black Diamond. But because Black Diamond put Union Bank on
notice of its improper accounting claim and the court did not consider the merits
of the claim, the trial court erroneously dismissed it. As a result, no party has yet
prevailed in this case, and any award of attorney fees is premature. We affirm in
part, reverse in part, and remand for proceedings consistent with this opinion.
/-ZZsoA, WE CONCUR:
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