HeadsUp For Washington State – Nov. 4, 2013, Opinions

HeadsUp For Washington State – Nov. 4, 2013, Opinions

Monday, November 4, 2013 

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Division One of the Court of Appeals filed 5 new published opinions on Monday, November 4, 2013: 

1. Columbia Asset Recovery Grp., LLC v. Kelly

No. 69365-4

(November 4, 2013)

2013 Wash. App. LEXIS 2610 




Brief: The limited liability corporation’s (LLC) sole member was the guarantor of a one million dollar business loan agreement and promissory note executed by the borrowers, an individual and another LLC. The agreement contained jurisdiction and venue provisions permitting the lender to bring a collection action in King County. After the individual borrower died, neither his estate nor the other LLC paid the balance of the note. Accordingly, the lender demanded payment from the plaintiff LLC’s sole member. In response, the sole member formed the LLC and caused the LLC to purchase the lender's rights under the agreement and note, which the lender assigned to the LLC. The LLC then filed suit in King County against the estate of the individual borrower. However, the trial court dismissed the LLC’s complaint for lack of personal jurisdiction. Because there is a genuine issue of material fact as to whether the LLC and the lender intended the LLC's payment to constitute a discharge of the estate's payment obligation, the trial court erred by granting the estate's motion to dismiss. 

2. Ibrahim v. AIU Ins. Co.

No. 69554-1

(November 4, 2013)

2013 Wash. App. LEXIS 2609 


Brief: “Stigma damages” and “diminished value” damages are not synonymous. In this underinsured motorist insurance coverage dispute, the insured produced evidence of stigma damages; asserted that it was evidence of diminished value damages; contended that the loss was, therefore, covered by his policy; and filed suit when the insurer declined to pay. The insurer defended against the insured's claims, averring that it had paid all covered losses. The superior court agreed with the insurer and granted its motion for summary judgment, thereby dismissing all of the insured's claims. The Court of Appeals affirms. 

3. Lokan & Assocs., Inc. v. Am. Beef Processing, LLC

No. 69425-1

(November 4, 2013)

2013 Wash. App. LEXIS 2605 


Brief: The defendant entered into a contract with the plaintiff that conditioned payment to the plaintiff on the defendant hiring an employee based on the plaintiff’s referral. An addendum to the contract was subsequently executed, which stated that the defendant would pay the plaintiff for referrals upon the defendant receiving the federal funds it was seeking. The defendant has hired two candidates referred by the plaintiff. However, the parties dispute whether the first candidate was hired before or after the addendum was executed. The defendant never received the federal funds and has not paid the plaintiff for its referrals. The defendant claims that the addendum created a condition precedent, such that the defendant's payment obligation was excused when it failed to receive the federal funds. Because there are disputed questions of material fact, the Court of Appeals reverses the trial court's grant of summary judgment in favor of the defendant and remands for further proceedings. 

4. Calvert v. Berg

No. 69156-2

(November 4, 2013)

2013 Wash. App. LEXIS 2604



Brief: The plaintiff and over 600 individual investors appealed a trial court's imposition of sanctions for failure to comply with court orders to provide certain information to the defendant, an auditor who audited some investment funds involved in a Ponzi scheme. The investors claim that the trial court erred when it delayed granting their CR 41(a)(1)(B) motion for voluntary dismissal until after the deadline for compliance with the court orders. Because the court erred when it did not grant the investors' motion promptly, measured by the posture of the case at the time the motion was filed, the Court of Appeals reverses. 

5. State v. Davis

No. 68679-8

(November 4, 2013)

2013 Wash. App. LEXIS 2608 


Brief: The defendant, a repossession agent, and two co-defendants, while repossessing two cars owned by the same family, forced the driver and a passenger of one of the cars to get out at gunpoint and took them to the second car. The defendant was convicted of two counts of kidnapping in the second degree and two counts of assault in the second degree. On appeal, he claims (1) the assault merged with the kidnapping for each victim; (2) the trial court erroneously gave an initial aggressor instruction; (3) the court erroneously permitted rebuttal testimony about repossession industry standards; and (4) the to-convict instruction for kidnapping omitted an essential element. The Court of Appeals agrees regarding merger and rejects the remaining claims. The court remands for vacation of the assault convictions and for resentencing and otherwise affirms. 


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