                                                                 FILED
                                                              APRIL 18, 2013
                                                        In the Office of the Clerk of Court
                                                      W A State Court of Appeals, Division III




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION THREE

FRANCIS CLARK and SHANNON                     )         No. 30634-8-111
HOERNER-CLARK, husband and wife,              )
                                              )
                     Appellants,              )
                                              )
             v.                               )         UNPUBLISHED OPINION
                                              )

JR'S QUALITY CARS, INC.,                      )

RUSS EDWARDS AND                              )

ASSOCIATES, INC.; VIROJ "LEE"                 )

RITDECHA, Salesperson,                        )

                                              )

                     Defendants,              )

                                              )

CAPITOL INDEMNITY                             )

CORPORATION,                                  )

                                              )

                     Respondent.              )


      KULI~   J. -   This case is before this court for the second time. In October 2007,

Francis Clark and Shannon Hoerner-Clark (Clarks) purchased a Chrysler Sebring from

JR'S Quality Cars (JR'S). JR'S holds a surety bond through Capitol Indemnity

Corporation (Capitol). When the Sebring began to have mechanical problems, the Clarks
No. 30634-8-III 

Clark v. JR'S Quality Cars, Inc. 



took it back to JR'S and purchased a truck. The Clarks used the Sebring for a down

payment and the salesman agreed that JR'S would pay off the Clarks' loan on the

Sebring. Later, the salesman told the Clarks that JR'S would not honor the contract.

JR'S then wrote a second contract requiring the Clarks to pay the loan on the Sebring.

       The Clarks filed this lawsuit against JR'S and Capitol. The trial court dismissed

the Clarks' claims against JR'S. On appeal, this court held that the bushing statute,

RCW 46.70. 180(4)(a), did not apply and that the second contract was invalid because it

lacked consideration. On remand, the trial court entered ajudgment of $7,459.04 in favor

of the Clarks and against JR'S. The court granted Capitol's motion to dismiss. This

appeal follows. We affirm the trial court.

                                          FACTS

       This dispute arose out of a conflict involving two contracts between the Clarks and

JR'S. As required by RCW 46.70.070, JR'S holds a surety bond through Capitol.

       In October 2007, the Clarks purchased a 2002 Chrysler Sebring from JR'S. A few

months later, the Clarks experienced problems with the Sebring and went back to JR'S to

purchase another vehicle. In March 2008, they signed a written sales agreement for a

truck that provided for a gross trade-in allowance for the Sebring of $4,500, less the

payoff due from JR'S in the amount of $4,300. The net trade-in was $200. Immediately


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No.30634-8-III 

Clark v. JR'S Quality Cars, Inc. 



after signing the contract, JR'S salesman advised the Clarks that JR'S would not be

paying off the balance due on the Sebring loan. Instead of backing out of the deal, one

week later the Clarks returned to JR'S and signed a second contract for the purchase of

the truck.

       In November, the Clarks filed a summons and complaint against JR'S alleging

(1) breach of contract, (2) unlawful acts and practices in violation ofRCW 46.70.180,

(3) violation of the Truth in Lending Act, 15 U.S.C. § 1640, and (4) a violation of the

Consumer Protection Act, chapter 19.86 RCW. The Clarks' claims were dismissed at

trial. The trial court entered findings and conclusions. The Clarks' motion for

reconsideration was denied. The court dismissed all of the Clarks' claims, plus JR'S

counterclaim.

       The Clarks' filed a notice of appeal to this court. They claimed (1) that JR'S

violated the bushing statute, RCW 46.70.180(4), and (2) that JR'S breached the first

purchase and sale agreement. The Clarks did not raise any other violations of chapter

46.70 RCW.

       In July 2011, this court issued an opinion concluding that there was no violation of

the bushing statute. The court reversed and remanded for entry of a judgment because the

second contract lacked consideration.



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Clark v. JR'S Quality Cars, Inc. 



       On remand, the trial court followed the directions from this court and entered a

judgment of $7,459.04 for the Clarks and against JR'S. The court denied the Clarks'

claim for attorney fees. Neither the Clarks nor JR'S appeals this part of the judgment.

For its part, Capitol filed a motion to dismiss. The trial court granted this motion and

dismissed the Clarks' claims against Capitol. The court concluded that chapter 46.70

RCW does not form a basis for relief for a breach of contract claim.

       The Clarks now appeal for the second time. They argue that chapter 46.70 RCW

does form a basis of relief for a breach of contract claim.

                                        ANALYSIS

       Chapter 46.70 RCW. The Clarks argue that they have a claim against Capitol

under chapter 46.70 RCW.

       In Washington, the distribution, sale, and lease of vehicles is deemed to be of great

public importance. As a result, an applicant seeking a vehicle dealer's license must post a

surety bond as an assurance that the applicant shall "conduct his or her business in

conformity with the provisions of [chapter 46.70 RCW]." RCW 46.70.070(l)(c).

Significantly, RCW 46.70.070(1) states that liability under a bond shall be conditioned on

violations of "this chapter." RCW 46.70.180 unambiguously provides the limited

circumstances under which a claimant is to have recourse against the bond. Reading


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No.30634-8-III
Clark v. JR'S Quality Cars, Inc.


RCW 46.70.070(1) and RCW 46.70.180 together, the meaning is clear, a bond does not

cover acts or practices not specifically enumerated in RCW 46.70.180.

       The Clarks assert that they are entitled to recovery against Capitol based on their

breach of contract claim. However, they concede that a breach of contract claim is not

specifically enumerated in RCW 46.70.180. The Clarks also concede that neither the trial

court nor this court found that JR'S committed a specific violation ofRCW 46.70.180.

As a result, there is nothing to trigger liability under RCW 46.70.180.

       The Clarks point out that the purpose of the bond is to provide security

against the conduct of the dealer "to protect ... the investments ... of the citizens."

RCW 46.70.005. The Clarks point to RCW 46.70.900, which reads:

       All provisions of [the] chapter shall be liberally construed to the end that
       deceptive practices or commission of fraud or misrepresentation in the sale,
       lease, barter, or disposition of vehicles in this state may be prohibited and
       prevented, and irresponsible, unreliable, or dishonest persons may be
       prevented from engaging in the business.

       The Clarks argue that the number of specifically defined acts set forth in

RCW 46.70.180 is not all inclusive. To support their position, they rely on Franks v.

Meyer, 5 Wn. App. 476, 487 P.2d 632 (1971). In Franks, the court held that a violation

of chapter 46.70 RCW occurred if an insolvent dealer took a deposit and then failed to

deliver. Id. at 479-80. The court determined that the definition of "irresponsible" or


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No.30634-8-III
Clark v. JR'S Quality Cars, Inc.


"unreliable" used in RCW 46.70.900 encompassed within its meaning an insolvent dealer

who obtains a deposit from his customer and then is unable to deliver because of the

insolvency. Id.

       Franks is not helpful here because the Clarks concede that their alleged basis for

recovery is a common law breach of contract claim. Moreover, in the first appeal, this

court reversed and remanded in favor of the Clarks on their contract claim on the grounds

that the undisputed facts demonstrated that there was no consideration for the second

contract. Additionally, this court specifically held that there was no violation of the

bushing statute, RCW 46.70.180. Significantly, no other violations ofchapter 46.70

RCW were alleged in the complaint, litigated at trial, or made part of the first appeal. The

decision of this court as to matters decided on appeal becomes the law of the case.

Saleemi v. Doctor's Assocs., Inc., 176 Wn.2d 368,386,292 P.3d 108 (2013).

       The Clarks argue that any common law breach of contract claim triggers liability

under Capitol's vehicle bond. This is a misreading of the statute. In some instances, a

breach of contract may give rise to a violation of RCW 46.70.180, but that is only where

the breach of contract is accompanied by one of the enumerated unlawful practices set

forth in RCW 46.70.180. Here, the Clarks have failed to establish, and the courts have

not found, that JR'S committed a violation ofRCW 46.70.180. It is a well-established


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No.30634-8-III
Clark v. JR 'S Quality Cars, Inc.


rule of statutory construction that so long as a statute is unambiguous, a departure from its

natural meaning is not justified by any consideration of public policy or the statute's

consequences. DeLongv. Parmelee, 157 Wn. App. 119,146,236 P.3d 936 (2010)

(quoting State v. Miller, 72 Wash. 154, 158, 129 P. 1100 (1913)), remanded on other

grounds by 171 Wn.2d 1004,248 P.3d 1042 (2011).

       Finally, the Clarks want this court to amend RCW 46.70.180 to include breach of

contract. But this is a matter for the legislature.

       Attorney Fees. Both parties seek attorney fees. The Clarks are not awarded their

attorney fees because they are not the prevailing party.

       Capitol requests costs under RCW 4.84.250, RAP 18.1, and RAP 14.2, which

allows a commissioner or clerk of the appellate court to award costs to "the party that

substantially prevails on review, unless the appellate court directs otherwise in its

decision terminating review." Capitol is the substantially prevailing party.

       We affirm the trial court and award costs to Capitol.




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No. 30634-8-II1 

Clark v. JR'S Quality Cars, Inc. 



       A majority of the panel has detennined 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:




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