67 Wn. App. 539, 837 P.2d 631, TRUCK CENTER v. GENERAL MOTORS

July 1992

[No. 28355-3-I. Division One. July 27, 1992.]

TRUCK CENTER v. GENERAL MOTORS
TRUCK CENTER CORPORATION, Appellant, v. GENERAL MOTORS CORPORATION, ET AL, Respondents.

[1] Judgment Summary Judgment Review Inferences From Facts. When reviewing a summary judgment, an appellate court draws all reasonable inferences from the evidence in favor of the nonmoving party.

[2] Contracts Construction Question of Law or Fact In General. A court's interpretation of unambiguous contract terms is an issue of law that is appropriately decided by summary judgment.

[3] Conflict of Laws Contracts Choice of Law Effect In General. A choice of law provision in a contract is enforceable unless applying the chosen law would violate the forum state's fundamental public policy.

[4] Sales Distributorship Contract Cancellation of Product Scope. When a contract gives a supplier unilateral authority to cancel or supersede a portion of the contract providing for a dealer's right to purchase a certain type of product, the supplier may cease offering such product to the dealer and may discontinue sales of related parts and accessories as well.

[5] Contracts Construction Alteration of Terms. A court cannot rewrite a contract under the guise of construing it.     

Nature of Action: A truck dealer sought damages arising out of its supplier's cancellation of a heavy duty truck addendum to the dealer agreement.

Superior Court: After dismissing four of the five counts in the complaint, the Superior Court for King County, No. 87-2-16149-8, Terrence A. Carroll, J., on April 2, 1992, entered a summary judgment in favor of the supplier on the breach of contract claim.

Court of Appeals: Holding that the supplier had no contractual duty to continue to offer the dealer any particular type of vehicle or related parts and accessories, the court affirms the judgment.

Gary W. East, for appellant.

John Dillow, Rex C. Browning, and Perkins Coie, for respondents.

AGID, J. Truck Center Corporation (Truck Center) appeals the trial court's dismissal of its breach of contract claim against General Motors Corporation (GM) on summary judgment. We affirm.

I

FACTS

This appeal concerns the interpretation of a dealer sales and service agreement (Dealer Agreement) entered into by Truck Center and GM, pursuant to which Truck Center became an authorized GM dealer in 1978. In 1985 the parties renewed the Dealer Agreement. Under the terms of the Dealer Agreement and various addenda, Truck Center was granted a nonexclusive right to buy, sell and service specified GM light duty, medium duty and heavy duty trucks and related parts and accessories.

On December 23, 1986, GM notified Truck Center by letter that it had entered into a joint venture with AB Volvo. The joint venture, Volvo GM Heavy Truck Corporation (Volvo GM), would manufacture and distribute heavy duty trucks (HDT's) in North America. GM notified Truck Center that, as a result of the joint venture, it would cease offering HDT products to its dealers on December 31, 1987, and the heavy duty motor vehicle addendum, in which GM agreed to supply HDT products to Truck Center, would expire on that date. The letter also stated that the joint venture was in the process of determining which existing dealers would be selected to distribute the HDT products of Volvo GM. In June 1987, GM notified Truck Center that it had not been selected as a dealer for Volvo GM HDT products. 1

1 However, the letter explained that GM was only canceling the HDT motor vehicle addendum. The Dealer Agreement for the light duty and medium duty products supplied by GM to Truck Center would remain in effect. Thus, GM did not cancel its Dealer Agreement with Truck Center.

Truck Center's area competitor, Trucks Northwest Corporation (Trucks Northwest), was selected to be the area's Volvo GM dealership.

GM decided to stop manufacturing and marketing HDT products for sale to its dealers primarily because its market share had decreased and it was incurring substantial operating losses. The HDT business had become increasingly unprofitable for GM for several reasons, including decreased demand, industry deregulation, and growing foreign competition. Rather than liquidate its HDT assets, GM entered into the joint venture with AB Volvo. In exchange for a minority, noncontrolling (24 percent) interest in Volvo GM, GM contributed cash and its inventory of HDT parts and accessories, as well as its manufacturing and tooling assets. The remaining 76 percent of Volvo GM's stock is owned by Volvo. Of the 10 members of Volvo GM's board of directors, 7 are designated by Volvo and 3 are designated by GM. None of GM's board members sits on Volvo GM's board of directors.

In anticipation of its withdrawal from the HDT market, GM dismantled all of its planning, marketing and sales departments for HDT models. It also ceased its engineering, cost estimating, development planning, warranty support and advertising associated with HDT's and terminated its relationships with numerous suppliers.

In December 1987, GM discontinued its sales of HDT products to Truck Center and other GM dealers. With one exception, GM also stopped manufacturing HDT's after December 31, 1987. Between December 1987 and December 1988, it did continue to manufacture the Brigadier model of HDT's. Under its agreement with Volvo, GM was obligated to manufacture the Brigadier exclusively for Volvo GM. Volvo GM marketed and distributed the Brigadier, under the nameplate of WhiteGMC, solely to its dealer network. As with the other HDT models formerly marketed by GM, the Brigadier was not available for sale to any of the GM dealers. According to GM, it was essentially manufacturing the Brigadier as a subcontractor for another manufacturer, Volvo GM.

After December 31, 1987, HDT parts and accessories were no longer listed by GM for sale to dealers on the dealer parts and accessories price schedules. However, GM continued to manufacture some of these parts for sale to entities other than its dealers after December 31, 1987, accepting work as a contract manufacturer or assembler of parts and components.

After GM canceled the HDT addendum to the Dealer Agreement, Truck Center filed suit against Volvo White Truck Corporation, a subsidiary of AB Volvo, GM, Volvo GM, and Trucks Northwest, the local Volvo GM dealer. 2

2 Truck Center's claims against Volvo GM and Volvo White Truck Corporation were subsequently dismissed.

The trial court dismissed four of the five counts of plaintiff's complaint against GM. GM moved for summary judgment on the remaining breach of contract claim, which the trial court granted. Truck Center appeals the trial court's dismissal of that claim.

II

DISCUSSION

[1, 2] Truck Center contends that GM breached its Dealer Agreement when it stopped selling HDT products, including trucks and related parts and accessories, to Truck Center while allegedly continuing to manufacture some of those products for sale to Truck Center's competitors. Because Truck Center's claim was dismissed on summary judgment, all reaso73 Wn. App. 98, RHAY v. JOHNSON

73 Wn. App. 98, RHAY v. JOHNSON

Feb. 1994

[No. 12622-6-III. Division Three. February 22, 1994.]

RHAY v. JOHNSON
BOBBY J. RHAY, as Personal Representative, Respondent, v. CHARLOTTE JOHNSON, ET AL, Appellants.

[1] Wills Construction Intent of Testator In General. The primary duty of a court in construing the language of a will is to determine the intent of the testator. To the extent possible, this is done from within the four corners of the will with each provision construed in 74 Wn. App. 875, CLAYTON v. GRANGE INSURANCE ASS'N

74 Wn. App. 875, CLAYTON v. GRANGE INSURANCE ASS'N

July 1994

[No. 13052-5-III. Division Three. July 12, 1994.]

CLAYTON v. GRANGE INSURANCE ASS'N
WILLIAM CLAYTON, ET AL, Appellants, v. GRANGE INSURANCE ASSOCIATION, Respondent.

[1] Judgment Summary Judgment Review Role of Appellate Court. An appellate court reviews a summary judgment by undertaking the same inquiry as the trial court. It construes the facts and the reasonable inferences therefrom most favorab81 Wn. App. 141, NOBLE MANOR v. PIERCE COUNTY

81 Wn. App. 141, NOBLE MANOR v. PIERCE COUNTY[No. 14416-0-III. Division Three. April 4, 1996.]

H.P. HANSEN, ET AL., Appellants, v. CHELAN COUNTY, Respondent.

[1] Certiorari - Statutory Review - Review - Appellate Review - Scope. An appellate court reviews a trial court judgment on review of an administrative decision under a writ of certiorari by considering the record that was before the administrative decision maker; Findings of fact are reviewed under the substantial evidence standard. Evidence is substantial if it would convince an unprejudiced thinking mind of the truth of the declared premise. Issues of law are reviewed de novo.

[2] Zoning - Comprehensive Plan - Conflict With Zoning - Resolution. A conflict between a zoning ordinance and a comprehensive plan generally is resolved by applying the zoning ordinance; i.e., to the extent that the zoning code allows uses inconsistent with the goals and policies of the comprehensive plan, the zoning code prevails.

[3] Building Regulations - Building Permit - Special Permit - Effect of Proposed Development - Relationship to Permitted Developments. The effect a proposed land use will have on neighboring land will not support the denial of a special permit unless the effect is greater than the effect of uses permitted in the district without a special permit.

Nature of Action: Landowners sought judicial review of the administrative denial of a conditional use permit

 134    HANSEN v. CHELAN COUNTY    Apr. 1996 
81 Wn. App.133, 913 P.2d 409

for a nine-hole golf course on orchard land having a zoning designation permitting the property to be used outright for single family or duplex dwellings and agriculture.

Superior Court: The Superior Court for Chelan County, No. 93-2-00866-4, John E. Bridges, J., on October 27, 1994, entered a judgment upholding the administrative denial.

Court of Appeals: Holding that the reasons for denying the permit were inadequate, the court reverses the judgment and grants the permit.

Dennis D. Reynolds, Curtis R. Smelser, Rebekah R. Ross, Daniel W. Ferm, and Williams, Kastner & Gibbs, for appellants.

Gary A. Riesen, Prosecuting Attorney; and Brian J.

Dorsey and Davis Arneil Law Firm, for respondent.

MUNSON, J. - H.P. and Edna Hansen appeal from a superior court decision upholding the denial of a conditional use permit by the Chelan County Board of Adjustment (the Board). We hold the Board's reasons for denying the permit inadequate and reverse.

In 1992, the Hansens applied for a conditional use permit (CUP) for a 38.9-acre parcel owned by the Pearl K. Scammahorn Trust, of which Mrs. Hansen is trustee. The Hansens proposed to develop a nine-hole golf course on the property. The property had been used as orchard, but the fruit trees were of older, less desirable varieties, and most of the trees had been removed. According to Mrs. Hansen, replanting the orchard was not a viable option

 Apr. 1996     HANSEN v. CHELAN COUNTY    135 
81 Wn. App.133, 913 P.2d 409

because no financing could be obtained. Most of the adjoining property was in orchards, but some had been developed as residential.

Under the Chelan County Zoning Code (CCZC) the land was zoned "General Use." The CCZC permits general use property to be used outright for single family or duplex dwellings and for agricultural use. CCZC 11.36.010. The property may also be subdivided for these purposes. CCZC 11.36.010(4). All other uses require a conditional use permit. CCZC 11. S6.020. CCZC 11.56.010 addresses the grant or denial of conditional use permits; it states in part:

(c) Conditional uses shall be denied by the board of adjustment only when the board determines, after a public hearing thereon, that the proposed conditional use would be injurious to the public health, safety or welfare, or to the area adjoining the proposed conditional use irrespective of whatever conditions might be imposed, or where the board finds that the proposed conditional use would be incompatible with the adopted comprehensive plan for the area, irrespective of whatever conditions might be imposed.

The Board held a public hearing on the Hansens' proposal on August 10, 1992. The evidence at that hearing was aptly summarized by the superior court:

Agency comments were received from the Department of Ecology, Department of Fisheries, the Yakima Indian Nation, the Chelan County Health District, the County Conservation District, the Public Works Department, the Department of Building and Fire Safety, the Peshastin Irrigation District, and the Chelan County Public Utility District. A fair summary of the Agencies' comments reveal that a majority included the protection of water quality, protection of Brender Creek and the associated wetlands, erosion control, dust control, traffic, fire protection, and the use of irrigation water, all of which could be addressed by appropriate conditions and mitigation measures.

. . . [S]urrounding agricultural landowners . . . were generally concerned with errant golf balls, [pesticide] spray drift, noise, and set-backs.

 136   &n82 Wn. App. 277, WEYERHAEUSER v. BRADSHAW

82 Wn. App. 277, WEYERHAEUSER v. BRADSHAW[No. 36909-1-I. Division One. April 22, 1996.]

THE STATE OF WASHINGTON, Respondent, v. L.A.,

Appellant.

[1] Automobiles - Taking Without Permission - Elements Knowledge - Proof. The mere fact that the driver of an automobile is a teenager and the vehicle has a broken rear wing window does not establish that the driver knows the vehicle was taken without the owner's permission; guilty knowledge is not established unless there is corroborating evidence such as a damaged ignition, an improbable explanation, or the driver fleeing when stopped.

Nature of Action: Prosecution of a juvenile for taking a motor vehicle without the owner's permission.

Superior Court: The Superior Court for King County, No. 95-8-02989-4, Marsha J. Pechman, J., on June 20, 1995, entered an adjudication of guilty.

Court of Appeals: Holding that it would accept the State's concession that evidence that the juvenile drove the motor vehicle and that the vehicle had a broken rear wing window is insufficient to establish beyond a reasonable doubt that the juvenile knew the vehicle had been taken without the permission of the owner, the court reverses the adjudication.

Eric Broman and Nielsen & Acosta; and Colleen E. O'Connor of Society of Counsel Representing Accused Persons, for appellant.

Norm Maleng, Prosecuting Attorney, and Carol J. Murray, Deputy, for respondent.

PER CURIAM. - L.A. appeals her conviction for taking a motor vehicle without the owner's permission. She

 276    STATE v. L.A.    Apr. 1996 
82 Wn. App. 275, 918 P.2d 173

contends that the mere evidence that she was driving the vehicle with a broken rear wing window is insufficient to establish beyond a reasonable doubt that she had knowledge the vehicle had been taken without the permission of the owner. The State concedes error. The concession is accepted.

Limited evidence was offered by the State. The owner of the car testified that it had been taken without his permission. Police officers saw L.A. driving the car the next dayThe officers followed her for a few blocks and then activated their emergency lights. L.A. pulled over and did not flee. The officers observed the broken rear wing window, but did not testify as to any other defects or damage to the car. Police took a statement from L.A., but the contents of her statement were not offered.

[1] In the absence of corroborative evidence such as a damaged ignition, an improbable explanation or fleeing when stopped, there is not sufficient evidence to support the finding that L.A. knew the vehicle was taken unlawfully. See State v. Hudson, 56 Wn. App. 490, 495, 784 P.2d 533 (defendant admitted taking the vehicle from the street without asking anyone where it came from, he had no explanation, and he fled when stopped), review denied, 114 Wn.2d 1016 (1990); State v. Ford,