Grant County Port District No. 9 , Respondent ,
Washington Tire Corporation , Appellant
Oral Argument October 22, 2014
Appeal from Grant Superior Court. Docket No: 10-2-01453-1. Judge signing: Honorable John Michael Antosz, John Knodell. Judgment or order under review. Date filed: 04/23/2013.
Christopher R. Osborn (of Foster Pepper PLLC ); and Neil A. Dial (of Eisenhower Carlson PLLC ), for appellant.
Katherine L. Kenison, Anna C. Franz, and Michael M. Wyman (of Lemargie Kenison Wyman & Whitaker ), for respondent.
Authored by Robert E. Lawrence-Berrey. Concurring: Stephen M. Brown, Kevin M. Korsmo.
Robert E. Lawrence-Berrey,
[187 Wn.App. 225] [¶ 1] Grant County Port District No. 9 (Port) and Washington Tire Corporation (WTC) entered into an earnest money agreement (EMA). Under this agreement, WTC agreed to purchase real property from the Port. Shortly before closing, the port commissioners voted to terminate the agreement. The trial court granted summary judgment
in favor of the Port, concluding that the Port was entitled to repudiate the agreement. The trial court also held that WTC's exclusive remedy under the EMA for the Port's breach was rescission and return of its $40,000 earnest money. We hold that the Port was not entitled to repudiate the agreement and that the EMA does not provide the exclusive remedy for the Port's breach. We therefore reverse the trial court and remand for further proceedings.
[¶ 2] As this is an appeal from summary judgment orders favoring the Port, we set forth the facts in the light most favorable to WTC, the nonmoving party.
[¶ 3] WTC's principal, Abraham Hengyucius, was born in China and earned a PhD from Nanjing University in China. In about 2005, Abraham formed American Tire Corporation, a New Jersey corporation to develop and deliver giant off-the-road (OTR) tires. OTR tires are expensive, industrial-sized tires used on large vehicles, primarily in the mining industry.
[¶ 4] In about November 2007, the Seattle office of the Washington State Department of Community, Trade, and Economic Development wrote to Abraham to discuss a potential facility in Washington. In 2007 and 2008, Abraham visited Washington to view potential sites for a manufacturing facility, including a site off of Interstate 90 in Grant County.
[¶ 5] In July 2008, Abraham formed WTC as the entity responsible for developing the new OTR tire plant in [187 Wn.App. 226] Washington. In 2009, Abraham formed Washington Investment & Development LLC (WID), which started working to identify and obtain commitments from investors wishing to obtain an EB-5 visa. Such a visa allows foreign nationals who invest significant sums in the United States to obtain a green card. WID procured several investors to invest in a proposed tire facility in Washington. WTC also engaged Scott Fraser of GVA Kidder Mathews to act as a buyer's broker on its behalf. Mr. Fraser assisted in determining WTC's operational needs and traveled with Abraham to locate an appropriate manufacturing site in Washington.
[¶ 6] In August 2008, Mr. Fraser and Abraham visited a 96-acre site located in Ephrata, which was owned by the Port. WTC concluded that this location was a good fit for its planned tire manufacturing facility. Mr. Fraser submitted an offer to purchase the property on WTC's behalf, including a proposed purchase and sale agreement. The Port proposed its own contract, and on October 1, 2008, Abraham executed the EMA. The EMA contemplated a number of conditions that were required to be met prior to closing. WTC deposited $40,000 into escrow.
[¶ 7] In furtherance of satisfying these conditions, Abraham, on behalf of WTC, met with various government agencies, including the Governor's Office of Regulatory Assistance, Grant County public utility district, Grant County Economic Development Council (EDC), city of Ephrata officers, and several Port officers. WTC retained Columbia Northwest Engineering and environmental professionals to finalize off-site infrastructure, water, sewer, and air studies. WTC worked with the Department of Ecology in Spokane to discuss environmental, waste water, and air permit issues, and the Port required that WTC process all studies necessary to obtain Federal Aviation Administration (FAA) approval of the land transaction. In July 2009, WTC completed and submitted a 30-year traffic study. In December 2009, WTC provided the Port with a 254-page report relating to environmental issues.
[187 Wn.App. 227] [¶ 8] In January 2010, WTC arranged for its investors to visit port officials and the surrounding area. In March 2010, the Port's manager, Michael Wren, visited China to meet with WTC's investors. This meeting was arranged at WTC's cost and expense. During the meeting, Mr. Wren was introduced to a number of Chinese people and was made aware of the Chinese custom of Chinese people using Americanized names when working with people in the West. In May 2010, WTC similarly arranged for Washington state senators to visit China in support of WTC's investment in Washington.
[¶ 9] On July 20, 2010, Mr. Wren notified WTC that the Port had received the " Land Release Notification" from the FAA. WTC responded by accepting the conditions of the land sale transaction. By doing so, WTC satisfied all of its conditions under the EMA. The Port was responsible for completing the two tasks remaining before the sale could close: (1) clear title relating to easements and (2) obtain a single tax identification number for the parcel.
[¶ 10] In late July 2010, WTC arranged another meeting and presentation for investors to visit the property. The program included a slot for Abraham to speak. On August 2, 2010, Abraham provided Grant County EDC with the visitors' legal names, including his own Chinese name. In the e-mail, Abraham requested that " '[r]egarding the agenda, please kindly change my name to Jacqueline Zhn=ang (sic) for the presentation.'" Clerk's Papers (CP) at 319. The Port apparently concluded that Abraham intended to make the presentation under a different name (Jacqueline Zhang). Abraham subsequently clarified to Terry Brewer and the Port that " '[Ms.] Zhang is a lady responsible for EB-5 marketing'" and that " 'Hengyu Zhang is my Chinese name'" and " 'Abraham is my American name.'" CP at 319. The Port immediately requested that the FAA delay the land transfer documentation being prepared for the impending closing.
[¶ 11] On August 4, 2010, Mr. Wren wrote to Abraham stating that he did not want the name issue " 'to get blown [187 Wn.App. 228] out of proportion'" but that he was " 'tasked by [the Port's] commissioners to get some clarification so that we can continue to support [WTC].'" CP at 319 (alterations in original). In the e-mail, Mr. Wren noted the common cultural practice of using a western name: " 'After being in China myself, I understand how common the use of American names is, however, can you please show me something (fax) that shows your legal name to include Abraham, since that is what you've signed all ...