ERLWEIN v. MURRAY MOTORS INC., 27321-7-II (Wash.App. 5-17-2002)

No. 27321-7-II.The Court of Appeals of Washington, Division Two.
Filed: May 17, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Clallam County, No. 97-2-00877-1, Hon. Thomas J. Majhan, May 2, 2001, Judgment or order under review.

Counsel for Appellant(s), Steven C. Gish, Attorney At Law, 408 E 5th Street, Port Angeles, WA 98362-3209.

Counsel for Respondent(s), Curtis G. Johnson, Johnson Miller
Richardson PS, 230 E 5th Street, Port Angeles, WA 98362.

Stanley B. Taylor, Platt Irwin Taylor Colley Oliver, 403 S Peabody St, Port Angeles, WA 98362-3210.

Thomas K. Windus, Windus Thomas, 1575 Skyline Tower, 10900 N.E. 4th St, Bellevue, WA 98004-5841.

J. ROBIN HUNT, C.J.

Bruce and Virginia Erlwein appeal the trial court’s denial of their motion for summary judgment; granting summary judgment in favor of Murray Motors Inc., Dale Rose, and American State Insurance Co.; and dismissal of the Erlweins’ actions for conversion, negligence, and consumer protection. Agreeing with the trial court that laches barred the Erlweins’ claims, we affirm.

FACTS I. Van Trade-in
The Erlweins, husband and wife, purchased a Dodge Caravan (the van) in 1990. They took title in both names. In August 1995, with Virginia’s consent, Bruce Erlwein[1] took the van to Murray Motors for some major repairs. Murray Motors loaned Bruce a Mercury Sable to use in the interim.

The Erlweins had financial problems. The $440 monthly payments on the van were six months in arrears, totaling $3,500. The $300 license fee was due. Bruce was on disability retirement and wanted to minimize his monthly financial obligations. Thus, he decided to take advantage of Murray Motors’ offer to accept the van and its accompanying debts in trade for the `free-and-clear’ Sable.

Virginia was not involved in the family finances after 1991, and her communication with Bruce was minimal. Bruce claimed, however, that he discussed the financial benefits of the trade-in with Virginia on a number of occasions and felt that she understood the need for the transaction.

On August 4, 1995, Bruce traded in the van, purchased the Sable, and completed the paperwork at Murray Motors. After signing the Release of Interest, Bruce told Murray Motors’ representative David Barnier that he thought his wife’s signature was needed because both names were on the title to the van; Bruce also told Barnier that Virginia would be available to sign. A day or two later, Bruce told Virginia `what [he] had done’ and that `her signature would be needed.’ He did not `get the impression that she was in utter disagreement with’ the trade-in. Clerk’s Papers (CP) at 71. Rather, he expected that her written `approval would be forthcoming.’ CP at 70.

In mid-September, Virginia thought she saw her van with a `for sale’ sign at Murray Motors. She drove on to work and returned to Murray Motors later to see if it was her van, but it was gone. Until this time, she had thought the Sable was a loaner while Murray Motors finished repairing the van. She did not talk to Bruce right away because she `was trying to figure out what happened.’ CP at 115.

On September 26, 1995, Dale Rose, Murray Motors’ general manager and licensed notary, received the papers for the van with Bruce’s signature,[2] and notarized them.

In October 1995, Virginia telephoned Murray Motors to ask for the transaction paperwork. Murray Motors told her to contact the Department of Licensing. In mid-October, Virginia obtained the paperwork, discovered that her purported signature on the document releasing the title to the van was not hers, and confronted her husband. Virginia claimed that she had never discussed the trade-in with Bruce and she did not agree that the trade-in was a prudent financial decision for the household.

Neither Murray Motors nor anyone else contacted Virginia to obtain her signature, and she did not sign the Release of Interest. And Bruce did not sign on her behalf. Although Rose often signed the Release of Interest and affixed his notary seal outside the customer’s presence,[3]
he did not know who signed Virginia’s signature.[4]

Virginia did not demand that Bruce or Murray Motors rescind the transaction because the `sheriff’s office . . . told [her] it couldn’t be done.’ CP at 119. Although she had been the van’s primary driver, she drove the Sable only once. Instead, she drove a station wagon borrowed from her father.

II. Attempt to Retrieve the Van or Obtain Damages[5]
In January or February 1996, Virginia wrote to Murray Motors requesting that they return the van. She delivered the letter herself and spoke directly with Mark Brian Murray, president of the dealership. Murray told Virginia that he would try to get her back in a minivan but that they had already sold hers. Bruce also went to the dealership in January 1996, stating that he had to `get my wife back in a van.’ CP at 73.

Virginia contacted the Clallam County Auditor’s office, the State Attorney General’s office, the Department of the Notary, Key Bank, and several attorneys about the van. But she did not file a claim until September 24, 1997, two years after Bruce completed the trade-in. Virginia saw two counselors and two doctors about stress from her dissolving marriage and `the whole thing, is how . . . someone [could] sign [her] name and notarize it.’ CP at 120.

On September 24, 1997, apparently sometime after the Erlweins’ son `totaled’ the Sable, the Erlweins filed a lawsuit. They sued Murray Motors Inc., Dale Rose, and American States Insurance Company, Inc. (Respondents) for conversion, notary negligence, and Consumer Protection Act (CPA) violations. In September 1998, the trial court denied Bruce’s motion for voluntary dismissal from the lawsuit.

The Erlweins moved for partial summary judgment on the issue of liability. The Respondents filed cross-motions for summary judgment seeking dismissal of the Erlweins’ complaint. In April 2001, the trial court denied the Erlweins’ motion and granted summary judgment for Respondents, dismissing all the Erlweins’ claims. The Erlweins appealed.

ANALYSIS
The Erlweins argue that they are entitled to judgment as a matter of law. The Respondents counter that the trial court properly denied the Erlweins’ motion for summary judgment and properly granted Respondents’ cross-motion for summary judgment for the following reasons: (1) the Erlweins failed to bring their action until two years after the incident, contrary to the one-year statute of limitations for transactions involving motor vehicles, RCW 46.70.190; (2) the doctrine of laches also bars their claim because Virginia delayed seeking return of the van until it was too late for Murray Motors to retrieve it or to track down who falsified her signature; (3) the Erlweins failed to identify economic damages or emotional distress damages; and (4) the undisputed facts do not establish an impact to the public interest warranting an action under the CPA.

Both parties agree that we can decide the issues as a matter of law because there are no facts in dispute and the facts are susceptible to only one interpretation. Larner v. Torgerson Corp., 93 Wn.2d 801, 804, 613 P.2d 780 (1980); Hollingbery v. Dunn, 68 Wn.2d 75, 81-82, 411 P.2d 431
(1966).

The trial court ruled that the Erlweins’ lawsuit was barred by laches. `Laches is an implied waiver arising from knowledge of existing conditions and acquiescence in them.’ Buell v. City of Bremerton, 80 Wn.2d 518, 522, 495 P.2d 1358 (1972). Laches bars a cause of action where there is: (1) knowledge by plaintiffs of the facts constituting their cause of action or a reasonable opportunity to discover such facts; (2) unreasonable delay in commencing the action; and (3) damages to the defendant resulting from the delay. Davidson v. State, 116 Wn.2d 13, 25, 802 P.2d 1374 (1991). Here, all three criteria are satisfied.

Virginia knew or could have discovered that Bruce had traded in the van the previous month when she saw it for sale on the dealership lot in September 1995. At this point she must have at least suspected, if not known, that the Sable in the Elweins’ driveway was no longer a `loaner.’ Virginia admits that she did not immediately discuss her concerns with her husband, nor did she ask Murray Motors to rescind the trade-in. Although she contacted the sheriff, the Attorney General, and several attorneys soon after her discoveries, she did not contact Murray Motors until eight months after Bruce’s trade-in transaction. By this time, Murray Motors had resold the van. Furthermore, Virginia waited two years to bring her lawsuit.

Virginia argues that in order for the Respondents to claim laches, they must have `clean hands.’[6] She contends that by notarizing the false signature, Murray Motors has `unclean hands,’ which preclude the defense of laches.[7] But the record does not support Virginia’s assertion of unclean hands. Moreover, as the trial court aptly explained, `[I]t was not the alleged faulty acknowledgment of a signature which severed the wife’s rights to the van, but rather, the severance of title was caused by the actual delivery of the van to the dealer for trade-in by Mr. Erlwein.’ CP at 46.

By waiting such a long time to seek redress, either by direct negotiation with Murray Motors or by filing suit, Virginia made it impossible for the dealership to return the van to her and to trace how her signature came to be forged. Murray Motors thus suffered damage by having to defend this lawsuit. There has been a change in conditions, the van is not returnable and the Sable is gone; allowing this lawsuit to proceed would further damage Murray Motors. See Lopp v. Peninsula Sch. Dist. No. 401, 90 Wn.2d 754, 759-60, 585 P.2d 801 (1978) (Damage to defendant can arise either from acquiescence in the act about which plaintiff complains or from a change of conditions.)

The trial court did not err in granting summary judgment to the Respondents or in denying summary judgment to the Erlweins.

Because we affirm the trial court’s dismissal based on laches, we need not address the remaining issues: statute of limitations,[8]
CPA, and damages.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: ARMSTRONG, J., QUINN-BRINTNALL, J.