Seth Burrill Productions, Inc. v. Rebel Creek Tackle, Inc.

• Court: Court of Appeals of Washington
• Decided: July 7, 2015
• Docket: 32119-3
• Status: Unpublished

Opinion

FILED

JULY 7, 2015

In the Office of the Clerk of Court

W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

SETH BURRILL PRODUCTIONS, INC., ) a Washington corporation, ) No. 32119-3-111 ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION REBEL CREEK TACKLE, INC., ) ) Appellant. )

KORSMO, J. This is an appeal from a finding of contempt for violation of an

order resolving a previous dispute between the parties. Concluding that this appeal is

completely without merit, we affirm the contempt finding and award costs and attorney's

fees for the appeal.

FACTS

Allen Osborn invented and patented a fishing lure, and formed Rebel Creek

Tackle, Inc. (RCT) to handle the ensuing business. In order to begin manufacture of the

lures, RCT had prototypes and steel injection molds produced in China. RCT then

licensed Seth Burrill Productions, Inc. (SBP) to be the exclusive producer and distributor

of the lures, granting it "full, unrestricted use of the injection molds." The molds were No. 32119-3-III Burrill v. Rebel Creek

then transferred to Richland based manufacturer, Plastic Injection Molds, Inc. (PIM) for

production.

Following a breakdown in relations with SBP, ReT unilaterally terminated the

license in 2012, and began its own distribution of lures obtained from PIM. In response,

SBP brought an action for breach of contract. In May 2013, an arbitrator found that ReT

had breached the licensing agreement, and entered an award providing for damages and

the reinstatement of a modified licensing agreement. The arbitration award was then

confirmed in a court order filed June 7, 2013. Pertinently, the arbitration award and court

order amended the provision in the licensing agreement granting SBP use of the injection

molds to additionally require that ReT "cooperate in the transfer and/or delivery of said

molds as requested by [SBP]."

Immediately thereafter, SBP contacted PIM to arrange the transfer of the molds.

However, because the molds are the property of ReT, PIM would not release the molds

without permission. SBP attempted to contact ReT, but was unable. SBP eventually

contacted ReT's attorney, who refused to agree to the transfer, instructed PIM not to

release the molds, and then informed SBP that he no longer represented ReT. SBP then

made several additional, unsuccessful attempts to directly contact ReT before bringing

the present action for contempt, four months after the court order was filed. The trial

court found that ReT had intentionally violated the court order and imposed remedial

sanctions. ReT appealed.

No. 32119-3-III Burrill v. Rebel Creek

ANALYSIS

RCT challenges the contempt finding, arguing that the licensing agreement, as

modified by the court order, was ambiguous and that its violation of the order was

justified in order to protect its property interests. We will address those arguments and

then consider SBP's request for attorney's fees.

Contempt

A party is subject to contempt where there is intentional disobedience of a valid

court order. RCW 7.21.010. A finding of contempt is within the discretion of the trial

court and will not be reversed absent an abuse of that discretion. Schuster v. Schuster, 90

Wn.2d 626,630,585 P.2d 130 (1978). Discretion is abused when it is exercised on

untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12,

26,482 P.2d 775 (1971).

RCT argues that the modification to the licensing agreement imposed by the

arbitration award and court order is ambiguous because the word "transfer" can mean

alternatively a change in possession or a sale. See BLACK'S LA W DICTIONARY 1727

(10th ed. 2014). However, a term in a contract is not rendered ambiguous merely

because one word is susceptible to multiple meanings. Grant County Constructors v.

E. V Lane Corp., 77 Wn.2d 110, 121,459 P.2d 947 (1969). Rather, the word must be

read in the context of the contract as a whole, and where the language used is

No. 32119-3-II1 Burrill v. Rebel Creek

unambiguous, an ambiguity will not be read into the contract. Hering v. St. Paul-

Mercury Indem. Co., 50 Wn.2d 321,323,311 P.2d 673 (1957).

The clause requiring RCT to "cooperate in the transfer and/or delivery of the

molds," unambiguously contemplates only a change in possession in order to facilitate

SBP's use of the molds for the duration of the contract. 1 "Transfer" could not reasonably

mean "sale" in this context since that word already is used in the same phrase as an

alternative possibility to "transfer." Furthermore, the parties agree on this meaning of the

word "transfer" in this context. Consequently, the modified licensing agreement was

unambiguous.

RCT next contends that its actions were justified as a means to protect its property

interests in the molds. It contends that SBP intends to perpetrate fraud by misreporting

sales and that SBP could lose or damage the molds while in its possession. However,

RCT has presented no evidence that any of these hypothetical future harms will occur2

1 RCT argues that resolving the ambiguity entails adding conditions to SBP's possession of the molds. These conditions were not included in the original agreement nor in the court order, and a court order cannot be collaterally attacked in contempt proceedings. State v. Cae, 101 Wn.2d 364,369-70,679 P.2d 353 (1984). Additionally, even if this were a reasonable interpretation, RCT would still have been in contempt of court for refusing to cooperate with the transfer. 2 The contention that SBP intended to defraud RCT stems from the fact that SBP previously failed to submit the quarterly sales reports required by the licensing agreement. However, the arbitrator determined that this failure was inconsequential because SBP had instead reported all sales as they occurred.

nor is there any legal support that this constitutes a defense to contempt. ReT also has

the ability to enforce any breach of the agreement by SBP by bringing its own action.

ReT has failed to demonstrate that the trial court's finding of contempt was in any

manner untenable. Therefore, we affirm.

Attorney's Fees

SBP requests that this court award costs and attorney's fees as sanctions under

RAP 18.9(a) for bringing a frivolous appeaP An appeal is frivolous when it presents no

debatable issues upon which reasonable minds might differ, and it is so devoid of merit

that there is no possibility of reversal. Tiffany Family Trust Corp. v. City ofKent, 155

Wn.2d 225,241,119 P.3d 325 (2005). Doubts as to whether an appeal is frivolous

should be resolved in favor of the appellant. ld. Raising at least one debatable issue

precludes a finding of frivolousness. Advocates for Responsible Dev. v. W Wash.

Growth Mgmt. Hr'gs Bd., 170 Wn.2d 577,580,245 P.3d 764 (2010).

Here, ReT has appealed from a finding of contempt, while conceding all of the

essential facts establishing that it intentionally violated a court order. It contends instead

that its actions were acceptable because the court order is ambiguous. Yet under any

interpretation, it would still have been in violation of the order. It also contends that its

actions were justified without any factual or legal support. Thus, ReT has not presented

3 Because ReT is not the prevailing party, we need not address its claim for attorney's fees on appeal.

No. 32119-3-111 Burrill v. Rebel Creek

any debatable issue and this appeal is completely without merit. SBP is awarded its costs

and attorney's fees for this appeal upon compliance with RAP 18.l(d).

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:

Lawrence-Berrey, .