IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THOMAS REGER, an individual, No. 83529-7-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION DELL MARKETING L.P.,
Respondent.
SMITH, A.C.J. — Thomas Reger sued Dell Marketing LP (Dell) after it
denied Reger’s attempt to transfer a warranty for a Dell server that Reger
purchased through an auction. Reger appeals the trial court’s summary
dismissal of his claims. Finding no error, we affirm.
FACTS
In October 2020, Reger purchased a Dell “PowerEdge FX2” server
through an online auction. According to Reger’s later declaration, he “inspected
the server in person” before purchasing it and “found [it] to be brand new with all
of its warranty and support papers unopened.” Additionally, it “appeared to
[Reger] based on a sticker on the side of the box that the server was being
auctioned off on behalf of a company called Oak Harbor Freight.” Reger
declared that he checked Dell’s website before purchasing the server, and
according to the website, Dell’s warranty for the server was valid until March 3,
2023. Reger also declared that he “checked the Dell website on the
Citations and pin cites are based on the Westlaw online version of the cited material. No. 83529-7-I/2
transferability of the warranty and understood the warranty was transferable.”
The record reflects that Reger paid approximately $4,800 for the server
($3,805.00 plus a 15 percent “Buyer’s Fee” and 10.2 percent sales tax). He later
“attempted several times to transfer the warranty/ownership of the server” using
Dell’s website, but “all attempts were denied.”
In early 2021, Reger initiated this lawsuit against Dell. Reger alleged that
the server he purchased “is currently sold on Dell’s website for in excess of
[$]50,000” and “[t]he server’s value is derived from high reliability, extreme
performance and arguably most important, ‘Johnny on the spot support’.” He
alleged that “Dell’s refusal to transfer the warranty diminished the value of the
server by over [$]32,000” and that he “was forced to sell the server on Ebay.com,
admitting th[at] Dell would not transfer warranty, obliterating the true value of the
server.” Reger also alleged that “Dell has a business practice of commencing
server and consumer warranties when Dell ships the server, prior to the buyer
possessing the server.”
Reger asserted an unspecified cause of action, as follows: 4.1 Dell publishes to the public the status of Dell server warranties on their website. 4.2 Dell publishes the warranty transfer process to the public on their website. 4.3 Plaintiff relied upon Dell’s publicly published Dell warranty status and warranty transfer policy before purchasing the server. 4.4 Plaintiff evaluated the value of the server relying on Dell’s publishing of the warranty validity and Dell’s policy of transferring the warranty. 4.5 Dell’s refusal to transfer the warranty . . . ultimately diminished the value of the server by [$]32,000.
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4.6 Dell starts their “warranty clock” and “service agreement clocks” prematurely, swindling their customers out of valuable days of warranty protection.
Reger also asserted a cause of action for violation of the Consumer Protection
Act (CPA),1 premised on Dell’s “prematurely starting . . . the ‘warranty clock’
before the product is in the consumer’s possession.” Reger sought injunctive
relief “stopping the shortening of advertised warranty coverage,” as well as actual
damages of $32,000 and $25,000 in punitive damages under RCW 19.86.090. 2
In August 2021, Dell moved for summary judgment on all of Reger’s
claims. Dell contended that to the extent Reger’s complaint stated a claim for
breach of contract, “Reger cannot prove the existence of any contract between
himself and Dell.” Dell presented evidence that the server at issue was sold
through a Dell reseller, IT1 Source, to a company called “Intermedia,” for
shipment to an address in Seattle. Dell also presented evidence that Intermedia
never received the server and, on March 31, 2020, Dell submitted a “loss or
damage claim” to the shipping company, Mach 1 Global Services, Inc. (Mach 1).
Dell pointed out there was no evidence the online auction site through which
Reger purchased the server was affiliated with Dell, and it argued that Reger’s
breach of contract claim failed because “[c]ontracts require mutual assent and
consideration [and] Reger cannot show any evidence of mutual assent, and there
is absolutely no consideration . . . between himself and Dell.”
1 Chapter 19.86 RCW.
2 RCW 19.86.090 authorizes an award of treble damages for CPA
violations, provided that “such increased damages award for violation of RCW 19.86.020 [prohibiting unfair or deceptive acts or practices in the conduct of trade or commerce] may not exceed twenty-five thousand dollars.”
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Dell also observed that Reger’s complaint could be read to allege causes
of action for promissory estoppel and breach of warranty, and that both of those
claims also failed as a matter of law. And Dell argued that Reger lacked standing
to assert a CPA claim and, in any event, failed to raise a genuine issue of
material fact as to the elements of such a claim.
The trial court granted Dell’s motion for summary judgment and dismissed
Reger’s complaint with prejudice. Reger appeals.
ANALYSIS
Summary Judgment Standard
“Summary judgment is appropriate only if there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law.”
Rublee v. Carrier Corp., 192 Wn.2d 190, 198, 428 P.3d 1207 (2018). Where, as
here, the defendant moves for summary judgment based on the absence of
evidence to support an essential element of the plaintiff’s case, the plaintiff must
“present admissible evidence demonstrating the existence of a genuine issue of
material fact” to defeat summary judgment. Pac. Nw. Shooting Park Ass’n v. City
of Sequim, 158 Wn.2d 342, 351, 144 P.3d 276 (2006). “A material fact is one
upon which the outcome of the litigation depends.” Gull Indus., Inc. v. Granite
State Ins. Co., 18 Wn. App. 2d 842, 893, 493 P.3d 1183 (2021), review denied,
199 Wn.2d 1007 (2022).
We review an order granting summary judgment de novo, performing the
same inquiry as the trial court. Nichols v. Peterson Nw., Inc., 197 Wn. App. 491,
498, 389 P.3d 617 (2016). In so doing, we consider the evidence and all
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reasonable inferences therefrom in the light most favorable to the nonmoving
party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). “We may
affirm on any basis supported by the record whether or not the argument was
made below.” Bavand v. OneWest Bank, 196 Wn. App. 813, 825, 385 P.3d 233
(2016).
CPA Claim
Reger contends that the trial court erred by summarily dismissing his CPA
claim. We disagree.
To prevail on his CPA claim, Reger had to establish five elements:
“(1) unfair or deceptive act or practice; (2) occurring in trade or commerce;
(3) public interest impact; (4) injury to plaintiff in his or her business or property;
[and] (5) causation.” Hangman Ridge Training Stables, Inc. v. Safeco Title Ins.
Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). Reger’s claim fails on the first
element, i.e., whether Dell was engaged in a deceptive act or practice.
“Whether an act is . . . deceptive under the CPA is a question of law.”
State v. LA Inv’rs, LLC, 2 Wn. App. 2d 524, 538, 410 P.3d 1183 (2018).
“ ‘Deception exists if there is a representation, omission, or practice that is likely
to mislead a reasonable consumer.’ ” State v. Mandatory Poster Agency, Inc.,
199 Wn. App. 506, 518-19, 398 P.3d 1271 (2017) (internal quotation marks
omitted) (quoting Rush v. Blackburn, 190 Wn. App. 945, 963, 361 P.3d 217
(2015)). While the CPA does not define “deceptive,” “ ‘the implicit understanding
is that the actor misrepresented something of material importance.’ ” Mandatory
Poster Agency, 199 Wn. App. at 519 (internal quotation marks omitted) (quoting
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State v. Kaiser, 161 Wn. App. 705, 719, 254 P.3d 850 (2011)).
Here, Reger asserts that “Dell activat[es] the warranty upon shipment and
not at delivery,” i.e., “days if not weeks before the product is owned and in the
possession of the consumer,” and “this is a deceptive business practice” under
the CPA. But Reger fails to explain why a reasonable consumer would believe
that the warranty term begins at possession, so as to be misled if it begins
earlier. It is undisputed that Dell’s warranty expressly states that it “begins on the
date of the packing slip, invoice, receipt or other sales documentation” for
hardware purchased directly from Dell, and “on the date of your original sales
receipt” for hardware purchased from third-party retailers or resellers.
Meanwhile, Reger points to no evidence that Dell otherwise represents to
consumers that the warranty begins only upon possession. Reger fails to
establish that Dell’s starting the warranty term before the customer’s possession
is deceptive, and thus, his CPA claims fails as a matter of law.
Reger disagrees and points out that a Dell employee testified that Dell
transferred title to the server when it was shipped, but the same employee also
testified that Dell’s “Reseller Terms of Sale” (Reseller Terms) applied to the sale
of the server. According to Reger, the Reseller Terms “state[ ] title transfers
upon delivery to the consumer,” thus conflicting with the Dell employee’s
testimony and creating a genuine issue of material fact. But even assuming
Reger’s interpretation of the Reseller Terms is correct,3 he points to no evidence
3 We note that contract interpretation is a matter of law, and in construing
a contract, we view the contract as a whole. Int’l Marine Underwriters v. ABCD
6 No. 83529-7-I/7
in the record that Dell represented to consumers that the warranty term does not
start until title passes. Hence, any conflict between the Dell employee’s
testimony and the Reseller Terms is not material. The trial court did not err in
dismissing Reger’s CPA claim.
Denial of Warranty Transfer
CPA claim aside, the thrust of Reger’s complaint was that Dell had an
obligation to approve Reger’s warranty transfer, and Dell’s refusal to do so
diminished the value and marketability of the server, causing damages to Reger.
Dell argued below that Reger’s claims were grounded in breach of contract,
promissory estoppel, or breach of warranty. Reger did not argue otherwise
below, nor does he argue otherwise on appeal. Therefore, to establish a basis
for appellate relief based on Dell’s refusal to transfer the warranty to him, Reger
must show that the trial court erred by summarily dismissing Reger’s breach of
contract, promissory estoppel, or breach of warranty claim. See RAP 9.12 (“On
review of an order granting . . . a motion for summary judgment the appellate
court will consider only . . . issues called to the attention of the trial court.”).
Reger fails to do so.
To prove a breach of contract claim, a plaintiff must demonstrate “that
there exists a contract imposing a duty on the defendant,” that the defendant
failed to perform that duty, and that the failure damaged the plaintiff. Jacob’s
Meadow Owners Ass’n v. Plateau 44 II, LLC, 139 Wn App. 743, 757 n.3, 162
Marine, LLC, 179 Wn.2d 274, 282-83, 313 P.3d 395 (2013). But here, the record contains only a partial excerpt of the Reseller Terms.
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P.3d 1153 (2007). For a contract to exist, there must be mutual assent, i.e., the
parties must “ ‘manifest to each other their mutual assent to the same bargain at
the same time.’ ” Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 48, 470 P.3d
486 (2020) (internal quotation marks omitted) (quoting Yakima County (W.
Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 388, 858 P.2d
245 (1993)); see also Swanson v. Holmquist, 13 Wn. App. 939, 942, 539 P.2d
104 (1975) (“In the absence of mutual assent there can be no contract.”).
“Mutual assent cannot be based upon subjective intent, but rather must be
founded upon ‘an objective manifestation of mutual intent on the essential terms
of the promise.’ ” Swanson, 13 Wn. App. at 942 (quoting Peoples Mortg. Co. v.
Vista View Bldgs., 6 Wn. App. 744, 747, 496 P.2d 354, 357 (1972)).
Additionally, “[e]very contract must be supported by a consideration,” i.e.,
an “act, forbearance, creation, modification, or destruction of a legal relationship,
or return promise” that is “bargained for and given in exchange for the promise.”
King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d 160 (1994). “Without
consideration present, there is no valid contract.” King, 125 Wn.2d at 506.
Here, Reger presented no evidence that he and Dell bargained for
anything, much less that there was mutual assent between himself and Dell that
Dell would approve a warranty transfer for the server in exchange for some form
of consideration. While Reger argues that Dell “offered to transfer the warranty,
in exchange for Reger’s personal contact information,” Reger makes this
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argument for the first time on appeal,4 and in any event, he points to no evidence
in the record of such an offer. Cf. Pac. Cascade Corp. v. Nimmer, 25 Wn. App.
552, 556, 608 P.2d 266 (1980) (“An offer consists of a promise to render a stated
performance in exchange for a return promise being given.”). Furthermore, and
as Dell points out, Reger presents no evidence of any consideration flowing from
Reger to Dell. Reger failed to raise a genuine issue of material fact as to the
existence of any contract between himself and Dell.
Reger also failed to raise a genuine issue of material fact as to his
promissory estoppel claim. “Promissory estoppel renders a promise made
without consideration enforceable.” Elliott Bay Seafoods, Inc. v. Port of Seattle,
124 Wn. App. 5, 12-13, 98 P.3d 491 (2004). “ ‘A promise is a manifestation of
intention to act or refrain from acting in a specified way, so made as to justify a
promisee in understanding that a commitment has been made.’ ” Sloma v.
Wash. State Dep’t of Ret. Sys., 12 Wn. App. 2d 602, 622, 459 P.3d 396 (2020)
(quoting RESTATEMENT (SECOND) OF CONTRACTS § 2(1) (AM. LAW . INST. 1981)). A
plaintiff alleging promissory estoppel must establish “ ‘the existence of a promise’
that is ‘clear and definite.’ ” Sloma, 12 Wn. App. 2d at 622 (quoting Havens v.
C&D Plastics, Inc., 124 Wn.2d 158, 172-73, 876 P.2d 435 (1994)).
Here, Reger declared that he “checked the Dell website on the
transferability of the warranty and understood the warranty was transferable.”
Reger’s declaration did not specify what it was about the Dell website that
4 Under RAP 2.5(a), this court may refuse to review an argument raised
for the first time on appeal.
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caused Reger to understand the warranty was transferable, but we presume he
relied on Dell’s online “Ownership Transfer and Dell Product Registration
Guides,” an excerpt of which Reger attached to his declaration with the following
language highlighted: Was the System purchased second hand, through an auction website or third-party company? In order to take advantage of any remaining warranty (if applicable) for a Dell EMC System purchased through an auction site or through a third party, you must complete the transfer of ownership form by providing the following pieces of information: Previous Owner Information Service Tag and Express Code
Although the foregoing statement in Dell’s online “guide” sets forth certain
steps a person must take to “take advantage of any remaining warranty,” it does
not constitute a “clear and definite” promise to Reger that Dell would approve a
warranty transfer for the server at issue. At best, it provides general guidance.
Cf. Sloma, 12 Wn. App. 2d at 611, 622 (where retired state employee reentered
state employment, Department of Retirement Systems (DRS) did not make a
“clear and definite” promise to recalculate state employee’s retirement benefits
based on his new salary even where DRS stated there was no minimum number
of months he would need to work for his new salary to be considered in his
benefits calculation; DRS’s statement constituted only “general information and
guidance” and not a manifestation of intention to act in a specified way).
Furthermore, to obtain recovery based on promissory estoppel, a plaintiff
must show that he justifiably relied on the defendant’s promise “ ‘in such a
manner that . . . injustice can be avoided only by enforcement of the promise.’ ”
10 No. 83529-7-I/11
Tacoma Auto Mall, Inc. v. Nissan N. Am., Inc., 169 Wn. App. 111, 127, 279 P.3d
487 (2012) (quoting Elliott Bay Seafoods,124 Wn. App. at 13). It is undisputed
that Reger purchased the server at issue through an auction, and even Reger
declared that it appeared to him the server was being sold not on behalf of Dell,
but on behalf of a freight company. Also, it is undisputed that Reger purchased
the server for less than one-tenth of what he claimed was the server’s retail price.
And according to Reger’s own correspondence in the record, Reger “bought [the
server] to resell and try to make a buck.” Under the circumstances, Reger
cannot show that his conclusion the warranty would be transferable was justified,
much less that Dell’s refusal to transfer the warranty to Reger would result in an
injustice. Cf. Kim v. Dean, 133 Wn. App. 338, 345, 135 P.3d 978 (2006)
(promissory estoppel is equitable in nature); Ahmad v. Town of Springdale, 178
Wn. App. 333, 342, 314 P.3d 729 (2013) (observing that “[e]quitable remedies
are extraordinary forms of relief”). Reger’s promissory estoppel claim fails as a
matter of law.
Finally, although Reger’s complaint did not appear to allege that the server
failed to conform to any express or implied warranty, Dell nevertheless
characterized Reger’s complaint as raising a breach of warranty claim. But as
Dell went on to point out, either contractual privity or third-party beneficiary status
is required to maintain such a claim. See Lidstrand v. Silvercrest Indus., 28 Wn.
App. 359, 362-63, 623 P.2d 710 (1981) (“Washington courts have consistently
required privity of contract between the parties in actions founded upon warranty.
The requisite privity may be established for an intended third party beneficiary of
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a warranty, however, without showing a direct contractual relationship between
seller and ultimate user.” (internal citation omitted)). Reger points to no authority
to the contrary, and as already discussed, Reger failed as a matter of law to
establish the existence of a contract between himself and Dell. Additionally,
Reger points to no evidence that he was an intended third-party beneficiary of
Dell’s limited warranty. Indeed, it is undisputed that Dell’s warranty expressly
states that “Dell cannot guarantee the authenticity of the products, limited
warranties, service or support, or the accuracy of the listings of products you
purchase from a third party” and gives Dell the “sole discretion” to approve
warranty transfers.
In sum, the trial court did not err by dismissing Reger’s breach of contract,
promissory estoppel, and breach of warranty claims. Therefore, the trial court
also did not err by summarily dismissing Reger’s complaint.
Reger disagrees and contends that reversal is required because Dell
stated below that the server’s warranty would still be valid as to a “rightful owner,”
and there remains a genuine issue of material fact as to whether Reger was the
legitimate owner of the server. Relying again on the Reseller Terms, Reger
argues that because the server was never delivered to IT1 Source or Intermedia,
“title never changed” to either of those entities. According to Reger, this means
there remains a genuine factual dispute as to whether Reger obtained legitimate
ownership of the server through a “chain of title” that began with Mach 1, the
company Dell used to ship the server. Reger points out that “[t]he record reflects
the shipping company Mach[ ]1 had a contractual right to sell the server at a
12 No. 83529-7-I/13
public auction if their bill was unpaid,” and “Dell has not produced any document
that indicates Dell paid Mach[ ]1 shipping.”
But even assuming again that Reger’s interpretation of the Reseller Terms
is correct, and assuming further that Mach 1 had a contractual arrangement with
Dell under which Mach 1 was authorized to—and did—sell the server, Reger did
not purchase the server from Mach 1, and he points to no evidence whatsoever
revealing how the server ended up with the auction company that actually sold
the server to Reger, apparently on behalf of Oak Harbor Freight. Below, Reger
speculated that Mach 1 “subcontracted all or at least a portion of the server[’]s
transport to Oak Harbor Freight” and asserted that Oak Harbor Freight “clearly
believed they had a contractual or legal right to sell this server at public auction,”
but “ ‘speculation and conclusory statements will not preclude summary
judgment.’ ” Strauss v. Premera Blue Cross, 194 Wn.2d 296, 301, 449 P.3d 640
(2019) (quoting Volk v. DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254 (2016)).
Reger’s theory that he obtained “legitimate ownership” via Mach 1 does not raise
a genuine issue of material fact.
As a final matter, Reger suggests that the trial court was required to
accept as true his theory that he obtained “legitimate ownership” through Mach 1.
Specifically, quoting from Becker v. Community Health Systems, 184 Wn.2d 252,
257-258, 359 P.3d 746 (2015), Reger asserts that “[i]n ruling on a motion to
dismiss, ‘[f]actual allegations are accepted as true, and unless it appears beyond
doubt that the plaintiff can prove no set of facts consistent with the complaint that
would entitle him or her to relief, the motion to dismiss must be denied.’ ” Becker
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involved a motion to dismiss under CR 12(b)(6), see 184 Wn.2d at 257, and in
that context, the trial court does indeed accept all allegations in the complaint as
true. But to overcome summary judgment under CR 56, Reger needed to
present admissible evidence—not just unsupported allegations—establishing the
existence of a genuine issue of material fact. See Keck v. Collins, 181 Wn. App.
67, 90, 325 P.3d 306 (2014) (party opposing summary judgment “must present
admissible evidence showing a genuine issue of material fact exists” and “ ‘may
not rest upon the mere allegations or denials of his pleading’ ” (quoting CR
56(e)). This Reger failed to do.
We affirm.
WE CONCUR: