     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



FENTAHUN AMARE,
                                                No. 73515-2-1
                    Appellant,                                               an


                                                DIVISION ONE


MOHAMUD SHARAWE AND JANE
DOE SHARAWE, individually and their
Marital community, and WASHINGTON
ACCESSIBLE TRANSPORTATION,                      UNPUBLISHED OPINION
LLC, (d/b/a W.A.T.), a WASHINGTON,
corporation,

                    Respondents.                FILED: August 1.2016

      Spearman, J. — Appellant Fentahun Amare appeals pro se from a

summary judgment order dismissing his claims against respondents Mohamud

Shaware and Washington Accessible Transportation, LLC. Because Amare fails

to demonstrate a genuine issue of material fact, we affirm.

                                     FACTS

      Appellant Fentahun Amare, acting pro se, brought claims against

respondents Mohamud Shaware and Washington Accessible Transportation,

LLC, for violation of ch. 25.05 RCW, the Revised Uniform Partnership Act (UPA),

unjust enrichment, breach of contract, fraud, misrepresentation, and negligent

misrepresentation. From the record on appeal, we discern the following facts.
       On July 3, 2006, appellant Fentahun Amare, Camel M. Sellam, and

Respondent Omar A. Hussein established a company named Washington
No. 73515-2-1/2


Accessible Taxis, LLC (Taxi). The company served to provide wheelchair

accessible taxi transportation services.

       Taxi hired Mohamed Mohamud as an employee, during which time he

worked as a contract manager but not as a member of Taxi. On April 23, 2010,

Mohamud established his own company known as Washington Accessible

Transportation LLC (Transportation).1

       Taxi had a contract to provide services to King County (County) and the

City of Seattle (City) through a pilot project that ran from 2006 to 2010. After the

completion of the pilot program in 2010, the County sent out a request for

proposals for other companies to submit bids to provide wheelchair accessible

taxi services.

        On June 30, 2010, one of Taxi's members, Amin Bounani, dissolved Taxi.

It did not apply for the contract. Another former member of Taxi, Hussein

submitted a proposal under his similarly named company, Washington

Accessible Taxi Associates, LLC, (Associates). According to Amare, Hussein

offered him a share in the new company, but later told him that he had given

Amare's share to respondent Mohamud W. Shaware. The record contains a

declaration signed by two individual members of Associates, explaining that they

invited Shaware to replace Amare as a member of Associates and that he

agreed to "be a co-owner of yellow cab #543" with Amare if Associates won the


        1All of the companies mentioned used the acronym, "WAT," to referto themselves. Br. of
Appellant at 6-7. King County also used the acronym, abbreviating "Wheelchair-Accessible
Taxicab" to refer its taxicab licenses. Clerk's Papers (CP) at 163-67.
No. 73515-2-1/3


contract.2 Clerk's Papers at 149-150. Shaware further agreed to purchase the

vehicle and bear all related expenses. Amare was "required" to pay for the

computer, camera, dispatch radio and a taxi meter.3 Id. According to the

declaration, Associates was awarded the contracts with the City and County in

April 2011. Id The declaration states that Shaware claimed the license for

himself and pocketed the proceeds from the cab. ]&,

        Shaware received a license to provide wheelchair taxi services to King

County in March of 2011. He purchased a vehicle and equipment and had been

operating the taxi service for over two years when Amare filed this action against

him and Transportation. The trial court granted both defendants' motions for

summary judgment. Amare's motion to vacate the order dismissing his claims

and for reconsideration was denied. He appeals.

                                           DISCUSSION


        Amare assigns error to the trial court's failures to declare unlawful and

illegal actions taken by Shaware and by Amare's former associates.4 As to


        2 The declaration was signed by Elias Shifow and Omar A. Hussein. A space for a
signature by Tadesse Asefa also appeared without a signature. We note that Hussein later
recanted the declaration indicating that he signed it under pressure from Amare.
        3 We note that Amare nowhere alleges that he fulfilled his purported obligations under the
alleged agreement.
        4 Four of Amare's five assignments of error pertain to the trial court's "fail[ure] to rule" that
the actions of Amin Bouanani, Mohamed Mohamud, Omar Hussein, and Christopher Van Dyk,
were illegal and unlawful. But Amare did not bring claims against these persons; none of them
are named as parties to this lawsuit, nor is there evidence in the record that they were ever added
or served with a summons and complaint. Proper service of a summons and complaint is
essential to invoke personal jurisdiction over a party. Allstate Ins. Co. v. Khani, 75 Wn. App. 317,
324, 877 P.2d 724 (1994). Accordingly we do not consider these claims of error. In addition,
because Amare fails to assign error or make any argument regarding the trial court's dismissal of
his claims against Transportation, we do not consider his appeal of that order.
No. 73515-2-1/4


Shaware, he specifically claims the "court erred by failing to rule that... Shaware,

... falsified declaration and testimony under oath that he obtained license directly

from the City and County[.]" Br. of Appellant at 4. He does not specifically assign

error to the trial court order granting summary judgment dismissing his claims for

violation of the Uniform Partnership Act, unjust enrichment, breach of contract,

fraud, misrepresentation and negligent misrepresentation. Nor does he indicate

with any specificity that disputed issues of material fact exist as to each element

of his various claims. Nonetheless, for purposes of this appeal, we presume the

assignment of error challenges the trial court's order granting Shaware's motion

for summary judgment.

       We review summary judgment orders de novo. Lunsford v. Saberhagen

Holdings, Inc., 166 Wn.2d 264, 270, 208 P.3d 1092 (2009). We consider facts

and reasonable inferences in the light most favorable to the nonmoving party.

McNabb v. Dep't of Corrs., 163 Wn.2d 393, 397, 180 P.3d 1257 (2008).

Summary judgment is appropriate only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law." CR 56(c).

       Once the moving party meets its initial burden to show that there is no

genuine issue as to any material fact, the nonmoving party must set forth specific

facts rebutting the moving party's contentions and disclosing that a genuine issue

as to a material fact exists. Seven Gables Corp. v. MGM/UA Entm't Co.. 106



                                          4
No. 73515-2-1/5


Wn.2d 1,13, 721 P.2d 1 (1986). Statements of ultimate facts, conclusions of fact,

or conclusory statements of fact are insufficient to overcome a summary

judgment motion. Grimwood v. Univ. of Puget Sound. Inc.. 110 Wn.2d 355, 359-

60, 753 P.2d 517 (1988).

         To the extent Amare assigns error to the trial court's failure to find that

Sharawe committed fraud and fraudulent and/or negligent misrepresentation

when he represented that he obtained his taxi license "directly from the City and

County," the claim is without merit.5 Brief of Appellant at 4. Amare does not

explain how Sharawe intended him to rely on this alleged misrepresentation, or

how he, in fact, did so. Thus, he cannot show that there exists a material issue of

fact sufficient to defeat summary judgment on these claims. In addition, the




         5The elements of fraud include: (1) representation of an existing fact; (2) materiality; (3)
falsity; (4) the speaker's knowledge of its falsity; (5) intent of the speaker that it should be acted
on by the plaintiff; (6) plaintiff's ignorance of its falsity; (7) plaintiff's reliance upon the truth of the
representation; (8) plaintiff's right to rely upon it; and (9) damages suffered by the plaintiff. Stiley
v. Block, 130Wn.2d486, 505, 925 P.2d 194 (1996) (citing Hofferv. State. 110 Wn.2d 415, 425,
755 P.2d 781 adhered to on reconsideration (1989).
         To establish fraudulent misrepresentation, a plaintiff must prove nine elements (1) a
representation of an existing fact; (2) the materiality of the representation; (3) the falsity of the
representation; (4) the speaker's knowledge of the falsity of the representation or ignorance of its
truth; (5) the speaker's intent that the listener rely on the false representation; (6) the listener's
ignorance of its falsity, (7) the listener's reliance on the false representation, (8) the listener's right
to rely on the representation, and (9) damage from reliance on the false representation. Baertschi
v. Jordan. 68 Wn.2d 478, 482, 413 P.2d 657 (1966) (citing Swanson v. Solomon. 50 Wn.2d 825,
314 P.2d 655 (1957)).
        A plaintiff claiming negligent misrepresentation must prove by clear, cogent, and
convincing evidence that (1) the defendant supplied information for the guidance of others in their
business transactions that was false, (2) the defendant knew or should have known that the
information was supplied to guide the plaintiff in his business transactions, (3) the defendant was
negligent in obtaining or communicating the false information, (4) the plaintiff relied on the false
information, (5) the plaintiff's reliance was reasonable, and (6), the false information proximately
caused the plaintiff damages. Lawyers Title Ins. Corp. v. Baik. 147 Wn.2d 536, 545, 55 P.3d 619
(2002) (citing ESCA Corp. v. KPMG Peat Marwick. 135 Wn.2d 820, 826, 959 P.2d 651 (1998)).
No. 73515-2-1/6


record before us is devoid of evidence that Shaware made any representations

at all directly to Amare, let alone one that was knowingly false, material, and

made with the intent to have Amare rely upon it to his detriment. Sharawe's

declaration asserts that prior to commencement of this litigation he had no

interaction at all with Amare. CP at 77-78. Amare does not dispute this as he

conceded in response to interrogatories that he has "not communicated directly

in writing or orally with Defendant Mohamud Sharawe." CP at 76.

        Similarly, Amare has failed to establish an issue of fact as to the elements

of a claim against Sharawe for violation of the UPA, breach of contract, or unjust

enrichment.6 Even viewing the evidence in the light most favorable to Amare, at

most, it shows only an agreement between Sharawe and Associates but not

between Shaware and Amare. Nor is there evidence that either Shaware or

Amare engaged in any conduct indicating that they intended to carry on as co-

owners. Thus, the trial court properly dismissed Amare's contract and UPA




         6 To establish a partnership Amare bears the burden of proving that he and Shaware
"carr[ied] on as co-owners a business for profit[.]" RCW 25.05.055(1). "Whether evidenced by an
express agreement between the parties or implied from the surrounding circumstances, '(t)he
existence of a partnership depends upon the intention of the parties.'" Kintz v. Read, 28 Wn. App.
731, 734, 626 P.2d 52 (1981) (quoting In re Estate of Thornton. 81 Wn.2d 72, 79, 499 P.2d 864
(1992)). To establish a breach of contract claim, Amare must first establish its existence. Bogle
and Gates, P.L.L.C. v. Zapel, 121 Wn. App. 444, 90 P.3d 703 (2004). The essential elements of a
contract are "the subject matter of the contract, the parties, the promise, the terms and conditions,
and (in some but not all jurisdictions) the price or consideration." Id at 448-49 (quoting Holly
Mountain Resources v. Bogle and Gates, P.L.L.C, 108 Wn. App. 557, 560, 32 P.3d 1002 (2001)).
To establish an unjust enrichment claim, Amare must show "[a] benefit conferred upon the
defendant by the plaintiff; an appreciation or knowledge by the defendant of the benefit; and the
acceptance or retention by the defendant of the benefit under such circumstances as to make it
inequitable for the defendant to retain the benefit without the payment of its value." Bailie
Commc'ns, Ltd. v. Trend Bus. Sys., Inc., 61 Wn. App. 151, 160, 810 P.2d 12 (1991) (citing
Everhart v. Miles. 47 Md. App. 131, 136, 422 A.2d 28 (1980).
No. 73515-2-1/7


claims. And because there is no evidence that Amare conferred any benefit on

Shaware, his unjust enrichment claim also fails. We conclude the trial court did

not err in granting summary judgment to Transportation and Shaware.

      Affirmed.




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WE CONCUR:
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