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South Center Oil Inc. v. Keane

October 7, 1996

SOUTH CENTER OIL, INC., RESPONDENT,
v.
CATHY J. KEANE AND GERALD A. CASSEL, D/B/A KEANE & CASSEL PARTNERSHIP D/B/A C & G TRUCKING, APPELLANTS.



Appeal from Superior Court of King County. Docket No: 93-2-30108-1. Date filed: 05/23/95. Judge signing: Hon. Robert J. Wesley.

PER CURIAM. Defendants, Cathy Keane and Gerald Cassell operate C & G Trucking (collectively C & G). Plaintiff, South Center Oil, Inc. issued C & G a credit card which allows C & G to purchase fuel on credit at sites using South Center's "credit card cardlock service". After C & G refused to pay its bill, South Center sued to collect the unpaid account. C & G admits that it did not pay South Center. But in its counterclaim, C & G alleges that it was entitled to an offset because South Center failed to pay for damage to one of its trucks after it allegedly bought contaminated fuel from South Center. The sole issue before us is whether the court properly dismissed that counterclaim on summary judgment based on C & G's failure to show that South Center was the seller of the defective fuel. Because there was no evidence that South Center was the seller, we affirm. South Center's request for reasonable attorney fees and costs on appeal is granted.

FACTS

South Center provides cardlock system data interchange services to fueling businesses nationwide. The service allows truckers to purchase fuel using a credit card issued by South Center. In addition to this business, South Center also owns five fueling stations, all located in Washington.

South Center issued C & G a cardlock credit card with certain terms. Under the parties' written agreement, C & G was required to purchase a minimum of 200 gallons of fuel per month. The fuel could be purchased at any location which accepted South Center's credit card.

In May of 1992, one of C & G's truckers purchased fuel from a station with South Center's cardlock system located in Rawlins, Wyoming. It was undisputed that South Center did not own this station. It was later discovered that the fuel had been contaminated with water, damaging the truck's engine. After South Center refused to offset any of C & G's repair costs, C & G refused to pay its account with South Center.

South Center sued to collect on the unpaid account. C & G answered and counterclaimed against South Center for breach of warranty and negligence. South Center then moved for summary judgment and dismissal of C & G's counterclaim asserting that C & G had sued the wrong entity since it did not own the station where C & G purchased the contaminated gas. C & G filed a cross motion for summary judgment. C & G admitted that it had not paid for the fuel it purchased but claimed genuine issues of fact remained as to whether it was entitled to an offset. The trial court disagreed, granted South Center's motion for summary judgment and dismissed C & G's counterclaim. C & G appeals.

DECISION

C & G asserts that its counterclaim for breach of warranty should not have been dismissed because there were genuine issues of material fact as to whether South Center breached the warranty of merchantability under the Uniform Commercial Code when it allegedly sold contaminated fuel to C & G.

When reviewing an order of summary judgment, this court engages in the same inquiry as the trial court. *fn1 Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. *fn2 Summary judgment was proper here because C & J failed to show that South Center was either the "seller" or the "merchant" of the contaminated fuel.

The undisputed evidence established that South Center simply provided the data interchange service for the retailer where the fuel was bought. There was no evidence presented that South Center owned the fuel or the fueling station. In fact, C & G admits that the only fueling stations that South Center owns are all located in Washington, and that it owns none in Wyoming. Assuming without deciding whether Article 2 of the Uniform Commercial Code which addresses the sale of "goods" not "services" even applies here, C & G has failed to show in any event that South Center is either the "seller" or "merchant" of the fuel as defined under RCW 62A.2-103(1)(d) and RCW 62A.2-104(1). As a result, C & G has failed to establish liability on the part of South Center based on the sale of the contaminated fuel as a matter of law. Dismissal was properly granted.

South Center requests attorney fees on appeal based on RAP 18.1 and the attorney fees provision contained in the parties' written agreement. That provision provides for reasonable fees "at trial or on appeal[.]" When an agreement provides for the payment of attorney fees, a prevailing party is entitled to reasonable fees and costs, including fees incurred on appeal. *fn3 As such, South Center's request for reasonable attorney fees and costs on appeal is ...


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