HOSETH v. MASONIC TEMPLE OF SPOKANE, WA, 19842-1-III (Wash.App. 9-27-2001)

No. 19842-1-III.The Court of Appeals of Washington, Division Three. Panel Five.
Filed: September 27, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County, No. 99-2-02824-9, Hon. Salvatore F. Cozza, December 6, 2000, Judgment or order under review.

Counsel for Appellant(s), Ross P. White, Layman Loft Arpin White, 818 W Riverside Ave #820, Spokane, WA 99201.

Richard L. Mount, 818 W Riverside Ave #820, Spokane, WA 99201.

Counsel for Respondent(s), Larry L. Mundahl, Huppin Ewing Anderson Paul, Ste 500, N 221 Wall St, Spokane, WA 99201.

FRANK L. KURTZ, C.J.

Sharon Hoseth sued the Masonic Temple Association of Spokane, Washington, for breach of a catering contract. The superior court granted the Masonic Temple’s motion for summary judgment on Ms. Hoseth’s contract claim and conducted a stipulated facts bench trial on the Masonic Temple’s counterclaim that Ms. Hoseth violated an oral agreement. The court found Ms. Hoseth had breached the terms of the oral agreement. Ms. Hoseth appeals contending (1) the court erred in finding that there was no valid written contract, and (2) if there was an oral contract, the court erred by finding Ms. Hoseth breached its terms and the Masonic Temple did not. We affirm.

FACTS
Sharon Hoseth is the owner of a catering business known as Mrs. D’s and Me, which she has operated for approximately 20 years. On February 21, 1992, after a two-month probationary period, the Masonic Temple Association of Spokane, Washington, and Ms. Hoseth entered into a three-year written contract. The contract called for Ms. Hoseth to provide catering services for activities scheduled at the Masonic Temple. Ms. Hoseth was required to pay to the Masonic Temple a monthly fee based upon a percentage of the gross sales from catering at the Masonic Temple. This contract expired on December 31, 1994.

In December 1994, an identical contract was negotiated for a period of three years. In 1997, a new executive director, Judy Alling, was hired and oversaw the final year of the second contract.

Ms. Hoseth and the Masonic Temple disagree as to what happened next. Ms. Alling stated that pursuant to a discussion in early December 1997, the parties agreed that Ms. Hoseth would continue to provide catering services without a written contract, allowing either party to terminate the relationship, if dissatisfied.

Ms. Hoseth denied agreeing to the oral arrangement. She stated that at the end of 1997, she began to inquire about a new written contract, fully expecting that the contract would be for another three years. After several months of not receiving a written contract, Ms. Hoseth went to the April 1998 Masonic Temple Board of Trustees to ask the Board for a written contract. The Board directed that Ms. Hoseth be given a written contract.

In conformance with the Board’s directive, Ms. Alling and the Board president, Robert Carter, presented a written contract to Ms. Hoseth with a one-year term expiring on December 31, 1998.

Ms. Hoseth claims that she requested that the contract be modified so that the term would be one year from the date of signing as opposed to December 31, 1998. Ms. Hoseth stated that the Masonic Temple representatives gave no indication that her request was unacceptable. Ms. Alling denied that Ms. Hoseth made any such request to change the length of the contract. Ms. Hoseth stated she would not have signed the proposed contract unless its term was a full year. Ms. Hoseth intended to have an attorney review the contract, but instead had Board member Phil Harris look at it.

Ms. Hoseth states that she went to the Masonic Temple office two times over the next couple of months to sign the contract. On one occasion, Ms. Alling was not there and, on another occasion, the Masonic Temple’s computer could not print a copy of the contract for the parties’ signature. During this time, Ms. Hoseth continued to perform catering services for the Masonic Temple.

During this period, Ms. Alling reported that there were complaints about both the quality of Ms. Hoseth’s food and the cleanliness of the Masonic Temple’s kitchen. The problems with Ms. Hoseth’s catering services were discussed at the September 21, 1998 Board meeting. At that meeting, Ms. Alling was given full authority to fire Ms. Hoseth and hire a new caterer. On September 22, when Ms. Hoseth returned to the Masonic Temple to clean up after the previous evening’s Board meeting, she was informed by one of the janitors that she was terminated and she was asked to leave the building.

Ms. Hoseth filed a complaint for breach of contract damages and the Masonic Temple counterclaimed. The Masonic Temple filed a motion for summary judgment which the court granted dismissing Ms. Hoseth’s claim.

The Masonic Temple’s counterclaim was presented to the court under stipulated facts and the court found that Ms. Hoseth breached an oral agreement with the Masonic Temple to pay 10 percent of sales for August and September 1998. Ms. Hoseth appeals.

ANALYSIS Summary Judgment.
Ms. Hoseth contends the court erred in granting summary judgment because there are issues of material fact as to whether the parties entered into a written contract. Ms. Hoseth claims she unequivocally accepted the written contract when she went to the Masonic Temple office and expressed her intent to sign it. The Masonic Temple argues that there was never a meeting of the minds because Ms. Hoseth unequivocally stated she would not sign the proposed contract unless its length was changed.

In reviewing a summary judgment order, this court considers all facts and reasonable inferences from the facts in the light most favorable to the nonmoving party. Enterprise Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 551, 988 P.2d 961 (1999). We will affirm the order of summary judgment if no genuine issue of material fact exists and the Masonic Temple is entitled to judgment as a matter of law. CR 56(c); Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993).

To form a contract, the parties must mutually assent to the agreement. Swanson v. Holmquist, 13 Wn. App. 939, 942, 539 P.2d 104 (1975). Mutual assent generally takes the form of an offer and acceptance. Yakima County (West Valley) Fire Protection Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 388, 858 P.2d 245 (1993). The existence of mutual assent is a question of fact that is ascertained from the objective manifestations, the parties’ statements, and conduct. Sea-Van Inv. Assocs. v. Hamilton, 125 Wn.2d 120, 126, 881 P.2d 1035 (1994).

`The acceptance of an offer is always required to be identical with the offer, or there is no meeting of the minds and no contract.’ Blue Mt. Constr. Co. v. Grant Cy. Sch. Dist. 150-204, 49 Wn.2d 685, 688, 306 P.2d 209 (1957); accord Rorvig v. Douglas, 123 Wn.2d 854, 858, 873 P.2d 492 (1994). Generally, a purported acceptance which changes the terms of the offer in any material respect operates only as a counteroffer, and does not consummate the contract. [City of] Roslyn v. Paul E. Hughes Constr. Co., 19 Wn. App. 59, 63, 573 P.2d 385 (1978). Sea-Van Inv., 125 Wn.2d at 126.

Ms. Hoseth never accepted the proposed contract as it was written. She wanted the length changed from one year beginning in January to one full year from the date of signing. Ms. Hoseth unequivocally stated she would not have signed the proposed contract unless that term was changed.

The length of the contract was never changed and the contract was never signed. Ms. Hoseth’s counteroffer was not accepted by the Masonic Temple.

Ms. Hoseth contends that when she requested the contract be for one year from the date of signing, the Masonic Temple did not voice any objection to her request. However, the Masonic Temple did not voice agreement to the change either. Silence is not acceptance. `Mutual modification of a contract by subsequent agreement arises out of the intentions of the parties and requires a meeting of the minds.’ Jones v. Best, 134 Wn.2d 232, 240, 950 P.2d 1 (1998) (citing Wagner v. Wagner, 95 Wn.2d 94, 103, 621 P.2d 1279 (1980); Hanson v. Puget Sound Navigation Co., 52 Wn.2d 124, 127, 323 P.2d 655 (1958)).

Ms. Hoseth argues that Ms. Alling stated she agreed the contract would be binding. However, she was referring to the proposed contract. She never indicated that she agreed to be bound by the modified contract Ms. Hoseth proposed. There was no meeting of the minds and no valid written contract.

We affirm the superior court’s summary judgment of dismissal.

Stipulated Trial.
On the Masonic Temple’s counterclaim the count found that:

2. Beginning in January of 1998, Plaintiff and Defendant operated under an oral agreement for catering services in which it was agreed that in return for Plaintiff’s use of Defendant’s facilities for catering, Plaintiff would pay to the Defendant a monthly fee equal to 10 percent of the gross sales each month by the Plaintiff from catering services at Defendant’s facility.
3. Plaintiff breached her oral catering services agreement with the Defendant such that Plaintiff owes the Defendant the sum of $652.13 for the month of August 1998 due on September 10, 1998, and the sum of $226.36 for the month of September 1998 due on October 10, 1998.

Clerk’s Papers (CP) at 151.

Ms. Hoseth claims that if there was an oral contract as to the Masonic Temple’s counterclaim, then it contained the same terms, conditions, and obligations as those set out in the previous written contract. The 1995 written contract provided that ‘[i]n the event of a breach of this Agreement by either party, this Agreement may be terminated upon 30 days written notice by the non-breaching party to the other.’ CP at 63. Ms. Hoseth did not receive 30 days notice before she was terminated, so she contends the Masonic Temple should be liable to her for damages.

However, Ms. Hoseth ignores the evidence that a substitute contract was formed which changed the terms of the previous contract. Ms. Alling’s testimony as to the terms of the oral contract was that `we would continue working as we had been’ and that `if either one of us are not happy, let’s just do something else.’ Alling Dep. at p. 23. This evidence indicates that the same terms and conditions of the previous written contract would continue, except that either party could terminate the contract at any time without the 30 days written notice. The Masonic Temple did not breach this oral contract when it terminated Ms. Hoseth without notice and the court did not err in finding that Ms. Hoseth owed the Masonic Temple money under the terms of this oral agreement.

We affirm the trial court’s judgment against Ms. Hoseth on the Masonic Temple’s counterclaim.

The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR: SCHULTHEIS, J., BROWN, J.