Franklin R. Lacy v. Richard Rasmussen

• Court: Court of Appeals of Washington
• Decided: July 20, 2015
• Docket: 71894-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

FRANKLIN R. LACY, No. 71894-1-1 Appellant, DIVISION ONE v.

RICHARD RASMUSSEN, BETTY J. RASMUSSEN, RASMUSSEN WIRE ROPE & RIGGING CO., RASMUSSEN EQUIPMENT CO., BILL JOOST, UNPUBLISHED OPINION LANDMANN WIRE PRODUCTS, WEISNER, INC., WEISNER STEEL PRODUCTS, INC., FILED: July 20. 2015

Respondents.

SPEARMAN, C.J. — Franklin Lacy filed this action alleging injuries and

damages resulting from defective shackles that he used to secure his patented rough water dock system. The trial court dismissed Lacy's claims, primarily on the basis that they were time barred. Because Lacy fails to demonstrate any error, we affirm. FACTS

Franklin Lacy appeals from trial court orders dismissing his claims against two

sets of defendants: (1) Rasmussen Wire Rope & Rigging Co., Rasmussen

Equipment Co., Richard Rasmussen, Betty J. Rasmussen, and Bill Joost (collectively Rasmussen); and (2) Weisner, Inc., Weisner Steel Products, Inc., and Landmann Wire Rope Products, Inc. (collectively Weisner and Landmann). Lacy patented a rough water dock system in 1991. In 1995, he contacted Rasmussen Wire Rope & Rigging Co. and spoke with Bill Joost. Lacy ordered double braided nylon line and hot-dipped galvanized shackles from Rasmussen to No. 71894-1-1/2

secure the dock system. Lacy acknowledged the invoice stated that it was subject to

the conditions set forth on the reverse side and that he read the terms and

conditions.

Lacy installed the dock system, which originally consisted of five docks, on his

Friday Harbor property in 1996. Lacy spent about six months each year in Friday

Harbor and the remainder of the year in Hawaii.

In 2002, Lacy determined that the galvanized shackles were not lasting as

long as he hoped and switched to type 304 stainless steel shackles that he

purchased from Rasmussen. In 2003, the dock failed, causing three sections to

separate and land on the rocks. In his deposition, Lacy acknowledged that the

shackles were the cause of the failure:

The only thing it could be is the shackles. You have the intact eye bolt under the dock, and it hadn't gone anywhere, other than going with the dock. ... So it didn't deteriorate at all. It's in perfect shape. And you are able to check enough of the dock lines that you can find to see that they haven't deteriorated. You find the end of it that would attach to the shackle. And so if that side's good and if the other side's good, what you're coupling has to be the problem.1

The dock system failed again in 2004, causing additional damage. Lacy

repaired the system using only four docks.

In about early 2005, Lacy noticed that the dock system was moving out of

place. Lacy injured his knee while attempting to prevent further damage. After this

1 Clerk's Papers (CP) at 996.

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incident, Lacy reinstalled only one section of the dock, leaving the remaining four

sections on the beach.

In the summer of 2006, the remaining dock rotated, but did not release. Upon

inspection, Lacy noticed that the shackles were missing.

In the summer of 2007, Lacy noticed essentially the same problem, but he

secured the dock with extra lines to prevent a release. When he returned in the

summer of 2008, Lacy again noticed that the shackles had failed, although the

reserve lines had held the dock in place. At this time, a diver discovered a "shackle

with the eaten-away hasp"2 hanging on one of the dock's eye bolts. Following this

discovery, Lacy soaked the remaining shackles in salt water. By June 2009, the

shackles had dissolved.

Beginning in 2008, Lacy purchased type 316 stainless steel shackles from Rasmussen. He observed no problems with those shackles from 2008 to 2013.

Lacy filed this action for damages against Rasmussen on August 11, 2010. The complaint alleged claims for misrepresentation, breach of implied warranty,

negligence, damages to patent, reckless and constructive endangerment, and constructive sabotage. Among other things, Lacy alleged that Rasmussen had

misrepresented the quality of the shackles, causing approximately $25,000,000 in

damages.

2 CP at 1010.

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On August 26, 2011, the trial court granted Lacy leave to add additional

defendants, including Weisner and Landmann. Lacy alleged that Weisner and

Landmann were in the "chain of ownership and purchase of the shackles."3

Lacy served a purported summons and complaint on Weisner and Landmann

in late January 2012. On May 7, 2012, both Weisner and Landmann moved to

dismiss under CR 12(b)(6).

Lacy did not file an amended complaint until May 21, 2012. He then filed an

"expanded amended complaint" on May 24, 2012, and a motion to "approve the

expanded amended complaint" on May 25, 2012.

Following a hearing on June 15, 2012, the trial court granted Weisner's and Landmann's motions to dismiss, concluding that Lacy's claims were barred by the

statute of limitations. The trial court denied the motion to approve the expanded

amended complaint as moot.

On March 14, 2014, the trial court granted Rasmussen's motion for partial

summary judgment and dismissed the majority of Lacy's claims. The trial court concluded that (1) Lacy's claims for shackles purchased from Rasmussen before

August 11, 2006, were time barred; (2) Lacy's claims for consequential damages and lost profits were precluded by the terms of the sales contract and the absence of any admissible supporting evidence; (3) Lacy's tort claims for events occurring prior to

August 11, 2007, were time barred; (4) Lacy's tort claims for the 2008 failure were

3 CP at 92.

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precluded by the independent duty doctrine; and (5) the Rasmussen defendants did

not owe Lacy a fiduciary duty.

The court allowed Lacy to amend his complaint to add additional claims,

including alleged violations of the Consumer Protection Act and the Uniform

Commercial Code. Lacy later moved to amend the partial summary judgment order

to a final order of dismissal, explaining that the trial court had already effectively

denied all of his claims. On June 30, 2014, the trial court granted the motion and

dismissed all of Lacy's claims with prejudice. The court awarded Rasmussen

approximately $64,000 in attorney fees.

DISCUSSION

Much of Lacy's briefing on appeal is rambling, disjointed, and unsupported by

any coherent legal theory or citation to the appellate record or relevant authority. The

briefs also contain numerous violations of RAP 10.3(a)(6), which requires a party to

provide "argument in support of the issues presented for review, together with

citations to legal authority and references to relevant parts of the record." RAP

10.3(a)(6).

In lieu of legal argument on appeal, Lacy repeatedly attempts to incorporate

pleadings directed to the trial court by inviting this court to review hundreds of pages

of the clerk's papers. This we decline to do. See In re Guardianship of Lamb, 173

Wn.2d 173, 183, 265 P.3d 876 (2011) (party waives issue not fully argued in

appellate brief; Washington courts have repeatedly rejected attempts by litigants to No. 71894-1-1/6

incorporate by reference arguments raised only in the trial court). Nor will we search through the record for evidence relevant to a litigant's arguments. See Mills v. Park,

67 Wn.2d 717, 721, 409 P.2d 646 (1966).

In the trial court and on appeal, Lacy has blamed others for his inability to

follow court rules and clear legal authority. But even though Lacy is representing

himself pro se, we must hold him to the same standards as an attorney. See In re

Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993). Consequently, the

failure to comply with all procedural rules may preclude review. Id,

Standard of Review

To the extent that Lacy is challenging the trial court's dismissal of his claims

on summaryjudgment, our review is de novo. We consider the materials before the trial court and construe the facts and inferences in the light most favorable to the

nonmoving party. Hubbard v. Spokane County, 146 Wn.2d 699, 706-07, 50 P.3d 602 (2002). Summary judgment is proper only if there is no genuine issue of material fact. CR 56(c); Hubbard, 146 Wn.2d at 707.

Lacy appears to raise the following issues on appeal:

Sales of Shackles Before 2006

Relying on Architechtonics Constr. Management. Inc. v. Khorram, 111 Wn. App. 725, 45 P.3d 1142 (2002), Lacy asserts that the statute of limitations did not commence until June 2009 when he discovered that his remaining shackles had

dissolved in buckets of salt water. But in Washington, Article 2 of the Uniform No. 71894-1-1/7

Commercial Code (UCC) generally governs the sale of goods. See RCW 62A.2-102

(UCC covers all "transactions in goods"). The UCC statute of limitations provides

that "[a]n action for breach of any contract for sale must be commenced within four

years after... the breach occurs, regardless of the aggrieved party's lack of

knowledge of the breach." RCW 62A.2-725(1)(2) (emphasis added). Our Supreme

Court has rejected the analysis in Architechtonics and held that, absent exceptions

not applicable here, the discovery rule does not apply to breach of contract claims.

1000 Virginia Ltd. P'ship v. Vertecs Corp.. 158 Wn.2d 566, 578-83, 146 P.3d 423

(2006). Because Lacy filed this action on August 10, 2010, the trial court did not err

in concluding that contract claims accruing before August 11, 2006 were time barred.

Events Occurring Before August 11. 2007

Lacy alleged claims against Rasmussen for breach of warranty,

misrepresentation, and negligence, all arising out of Rasmussen's sale of the defective shackles. In Washington, the Washington Product Liability Act (WPLA),

chapter 7.72 RCW, is the exclusive remedy for product liability claims. Wash. State

Physicians Ins. Exch. & Ass'n v. Fisons Corp.. 122 Wn.2d 299, 322-23, 858 P.2d

1054 (1993); Wash. Water Power Co. v. Gravbar Elec. Co.. 112 Wn.2d 847, 853, 774 P.2d 1199,779 P.2d 697 (1989). A product liability claim under the WPLA "preempts

any claim or action that previously would have been based on any 'substantive legal theory except fraud, intentionally caused harm or a claim or action brought under the

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consumer protection act, chapter 19.86 RCW.'" Bvlsma v. Burger King Corp.. 176

Wn.2d 555, 559, 293 P.3d 1168 (2013) (quoting RCW 7.72.010(4)).

The statute of limitations under the WPLA is three years. RCW 7.72.060(3).

Lacy's tort claims for damages and injuries occurring before August 11, 2007, are

therefore barred.

Lacy maintains that the discovery rule tolled the statute of limitations until June

2009, when he determined that the shackles were dissolving in salt water. But under

the discovery rule, the plaintiff must show that he or she could not have discovered

the relevant facts earlier. Giraud v. Quincv Farm and Chemical. 102 Wn. App. 443,

449, 6 P.3d 104 (2000). "'[Wjhen a plaintiff is placed on notice by some appreciable

harm occasioned by another's wrongful conduct, the plaintiff must make further

diligent inquiry to ascertain the scope of the actual harm. The plaintiffis charged with

what a reasonable inquiry would have discovered.'" 1000 Virginia Ltd. P'ship, 158

Wn.2d at 581 (quoting Green v. A.P.C.. 136 Wn.2d 87, 96, 960 P.2d 912 (1998)).

Here the evidence was undisputed that Lacy knew the shackles were

repeatedly failing as early as 2003. Lacy provides no evidence or plausible argument

suggesting why, after exercising due diligence, he could not have determined the

cause of the failure. Lacy fails to demonstrate any material factual dispute regarding

application of the discovery rule to the events occurring before August 2007.

Lacy appears to allege that the statute of limitations was also tolled by

fraudulent concealment. See generally Giraud. 102 Wn. App. at 452. But because

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he offers nothing more than conclusory allegations to support this claim, we decline

to consider it.

Consequential Damages

Lacy contends that the trial court erred in dismissing his claims for

consequential damages and lost profits. His primary argument appears to be that the

defective shackles prevented him from licensing his patent to dock builders.

Although Lacy need not establish the precise amount of damages, "the

evidence or proof of damages must be established by a reasonable basis and it must

not subject the trier of fact to mere speculation or conjecture." ESCA Corp. v. KPMG

Peat Marwick. 86 Wn. App. 628, 639, 939 P.2d 1228 (1997). Lacy acknowledged

that all of his income since 2000 has been from investments. On appeal, he fails to

identify any admissible evidence in the record suggesting that the defective shackles

prevented him from marketing his patent or otherwise supporting his claims for

consequential damages and lost profits resulting from the defective shackles. See

Tacoma Auto Mall. Inc. v. Nissan North America. Inc.. 169 Wn. App. 111, 135, 279

P.3d 487 (2012) (to establish lost profits, parties must demonstrate that they would

have earned the claimed profits but for the defendant's breach).

A party cannot defeat summary judgment by relying solely on "conclusory

allegations, speculative statements or argumentative assertions." Las v. Yellow Front

Stores. Inc.. 66 Wn. App. 196, 198, 831 P.2d 744 (1992). Rather, the party must

identify specific, admissible evidence that demonstrates a genuine issue. JdL Lacy No. 71894-1-1/10

failed to demonstrate a genuine factual issue as to consequential damages and lost

profits.4

Independent Duty Doctrine

Lacy contends the trial court erred in concluding that his tort claims for

damages arising from the 2008 dock failure are barred by the independent duty

doctrine. Under the independent duty doctrine, "'[a]n injury' ... is remediable in tort if

it traces back to the breach of a tort duty arising independently of the terms of the

contract." Eicon Const.. Inc. v. Eastern Washington Univ.. 174 Wn.2d 157, 165, 273

P.3d 965 (2012) (quoting Eastwood v. Horse Harbor Found.. Inc., 170 Wn.2d 380,

389, 241 P.3d 1256 (2010)). Our Supreme Court has directed lower courts not to

apply the doctrine to tort remedies "'unless and until this court has, based upon considerations of common sense, justice, policy and precedent, decided otherwise.'"

Eicon. 174 Wn.2d at 165 (quoting Eastwood. 170 Wn.2d at 417 (Chambers, J.,

concurring)).

In any event, however, Lacy has not presented any coherent legal argument

establishing the existence and nature of Rasmussen's alleged breach of tort duties. We therefore decline to address Lacy's challenge. See Saunders v. Lloyd's of

London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will decline to

4 Because Lacy failed to identify a factual issue as to consequential damages, we need not address the validity of the consequential damage limitation in the parties' sales agreement.

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consider issues unsupported by cogent legal argument and citation to relevant

authority).

Attorney Fees

The trial court awarded Rasmussen attorney fees based on the terms and

conditions of the sales invoices, which provided that the "prevailing party in any suit,

or proceeding shall be entitled to recover reasonable attorney fees." In his

deposition, Lacy acknowledged that when he first started purchasing items from

Rasmussen, the invoice stated that it was subject to the "conditions set forth on the

reverse side"5 and that he then read the terms and conditions on the reverse side.

On appeal, Lacy contends that he was not told in advance that Rasmussen

would be seeking attorney fees and that the terms and conditions were difficult to

read. These contentions are irrelevant and, in any event, at odds with Lacy's own

deposition testimony.

Lacy further claims that the terms and conditions applied only to the sale or

rental of "equipment" and therefore did not apply to Rasmussen's sale of "goods."

But Lacy makes no showing that this distinction affects the validity of the attorney fee

provision, which applies to the "prevailing party in any suit."

Finally, for the first time in his response to Rasmussen's motion for attorney

fees, Lacy alleged that he had written an objection to the terms and conditions on an

5 CP at 1015.

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invoice. But Lacy has not identified any evidence in the record supporting this

assertion.

Dismissal of Weisner and Landmann

Lacy also assigns error to the trial court's dismissal of his claims against

Weisner and Landmann. He alleges that Rasmussen fraudulently concealed the

identity of the new defendants and that the trial court gave him "a year to file his

summons and complaint" involving Weisner and Landmann.6 Under the WPLA,

Lacy's claims against Weisner and Landmann related to the sale of the shackles

were subject to the three-year statute of limitations. See RCW 7.72.060.

In attempting to add them as defendants, Lacy never identified the specific

nature of Weisner's and Landmann's alleged liability. He alleged that they were in

the "chain of ownership and purchase" but raised no specific allegations against them

in the amended complaint.

At the June 15, 2012 hearing on the motion to dismiss, Lacy conceded that his

claim arose in August 2008. He also acknowledged that he was aware of Weisner's

and Landmann's identities by May 2011, well before the statute of limitations expired.

Nonetheless, Lacy did not serve Weisner and Landmann with an amended summons

and complaint until January 2012, after the statutory period had expired, and did not

file the amended complaint until May 2012. Lacy's assertion that Rasmussen's

Appellant's Br. at 45.

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fraudulent concealment prevented timely commencement of the action is therefore

meritless.

Lacy's contention that the trial court gave him a year to file the amended

summons and complaint is frivolous. At the August 26, 2011 hearing on Lacy's

motion for leave to add the new defendants, Lacy asked about setting the trial date

and a discovery cut off deadline. The court informed Lacy that the trial date had not

yet been set and that there was no discovery cut off date. At this point, the court

observed that "ifthere's no action at all, just nothing happens for 12 months,"7 the

court clerk would send out a 30-day dismissal notice. Nothing in the court's

comments referred to the filing of an amended complaint.

Remaining Allegations

Lacy's remaining allegations, including assertions that Rasmussen doctored

evidence and breached a fiduciary duty and that the trial court took "shortcuts"8 and

failed to consider all of his arguments and evidence, are irrelevant, unintelligible, or

too conclusory to address. Lacy has raised numerous new allegations and

arguments in his reply brief. An issue "raised and argued for the first time in a reply

brief is too late to warrant consideration." Cowiche Canyon Conservancy v. Bosley,

118 Wn.2d 801, 809, 828 P.2d 549 (1992) (citing In re Marriage of Sacco, 114 Wn.2d

1,5, 784P.2d 1266(1990)).

7 Verbatim Report of Proceedings (VRP) (08/26/11) at 7.

8 Appellant's Br. at 1.

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Attorney Fees on Appeal

As the prevailing party, Rasmussen is entitled to an award of attorney fees on

appeal. The request is granted. See RAP 18.1(a).

Weisner and Landmann request an award of attorney fees for a frivolous

appeal. See RAP 18.9(a). An appeal is frivolous "if the appellate court is convinced

that the appeal presents no debatable issues upon which reasonable minds could

differ and is so lacking in merit that there is no possibility of reversal." In re Marriage

of Foley. 84 Wn. App. 839, 847, 930 P.2d 929 (1997). That standard is satisfied here. Not only has Lacy mischaracterized some of the facts underlying his attempts to add Weisner and Landmann as defendants, but he made no reasonable attempt to

challenge the legal basis for the trial court's decision.

Rasmussen, Weisner and Landmann are awarded attorney fees on appeal,

subject to compliance with RAP 18.1(d).

Affirmed.

•

WE CONCUR:

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