                                                                          FILED
                                                                       JULY 10, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




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

STADELMAN FRUIT, LLC, a                      )
Washington limited liability company,        )         No. 35165-3-III
                                             )
                    Respondent,              )
                                             )
      v.                                     )
                                             )         UNPUBLISHED OPINION
JIM D. VOORHIES, a single person,            )
                                             )
                    Appellant,               )
                                             )
JOHN E. HOWARD, as Personal                  )
Representative for the ESTATE OF             )
FLORENCE E. HOWARD,                          )
                                             )
                    Defendant.               )


      FEARING, J. — Plaintiff Stadelman Fruit, LLC filed suit to collect on a debt owed

by defendant Jim Voorhies and to foreclose on a mortgage securing the debt. The trial

court granted Stadelman Fruit summary judgment and dismissed counterclaims asserted

by Jim Voorhies. We affirm.

                                         FACTS

      Plaintiff Stadelman Fruit, LLC operates as a fruit packing facility that handles,

packs, markets, and sells fruit grown by Yakima Valley orchardists. As with other fruit
No. 35165-3-III
Stadelman Fruit, LLC v. Voorhies


packing facilities, Stadelman Fruit enters agreements with orchardists, under which

agreements an orchardist agrees to deliver the orchardist’s entire crop for a year and the

facility agrees to store, process, pack, market, and sell the fruit on behalf of the

orchardist. Often the fruit packing facility advances growing and harvesting costs to the

orchardist so that the orchardist need not procure a bank loan. Defendant Jim Voorhies

has operated apple orchards in Yakima Valley since at least 1996.

       Jim Voorhies first contracted with Stadelman Fruit to pack, store, and market

Voorhies’ apple crop in 1996. Stadelman Fruit then advanced money to Voorhies for

operating expenses. After the sale of the 1996 crop, Voorhies owed a deficit of $100,000

to Stadelman Fruit. Stadelman Fruit did not then demand payment of $100,000, but

instead insisted that Voorhies deliver three loads of apples to Stadelman Fruit in 1997.

Voorhies did so.

       Jim Voorhies next entered a fruit handling agreement with Stadelman Fruit in

1998. Stadelman Fruit loaned money to Voorhies that year. As in 1996, the proceeds

from the 1998 crop did not offset the debt owed to Stadelman Fruit and the charges

assessed by Stadelman Fruit for handling the crop. In a declaration, Jim Voorhies

testified that Pete Stadelman, an owner of Stadelman Fruit, told him that he need not pay

the debt. Pete Stadelman is deceased.

       From 1999 to 2007, Jim Voorhies delivered his apple crops to other fruit handling

facilities. Hopefully, he enjoyed a financial return in one or more of those

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years. An agent of Stadelman Fruit approached Jim Voorhies in early 2008 and Voorhies

agreed to market his 2008 crop through Stadelman Fruit in exchange for advances for

growing and harvest expenses from Stadelman Fruit.

       On March 5, 2008, Jim Voorhies and Stadelman Fruit entered a fruit handling

agreement. The agreement required Voorhies to deliver to Stadelman Fruit all

marketable apples grown in his orchards during the crop year. In exchange, Stadelman

Fruit, in its sole discretion, handled all necessary processes for postharvest handling,

packing, market and sale. Paragraph 1.2 of the agreement declared:

               Basis of Handling and Marketing: During the term of this
       Agreement, Grower [Jim Voorhies] hereby authorizes Handler [Stadelman
       Fruit] to handle and market Grower’s fruit described in paragraph 2.1
       below in Handler’s regular pool(s) as Handler, in its sole discretion,
       determines to be in Grower’s best interest.

Clerk’s Papers (CP) at 72. The agreement imposed onerous terms on Jim Voorhies

regarding the wide discretion Stadelman Fruit reserved in handling and marketing

Voorhies’ crop. In addition to the language of paragraph 1.2, paragraph 1.4 of the fruit

handling agreement prescribed:

               Handling and Marketing: Handler shall handle and market Grower’s
       fruit in accordance with the customs and standards of the industry and in
       accordance with Handler’s standard practices, which Handler may, in its
       sole discretion, change from time to time, provided such changes shall
       apply to and treat all growers similarly situated with respect to quality,
       quantity and varieties of fruit alike. Unless otherwise agreed in writing
       between Handler and Grower, Handler shall have the following rights,
       obligations and authority with respect to the handling and marketing of
       Grower’s fruit:

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             1.4.1 Packing - Grade Standards: Handler shall have the right and is
      authorized to determine the type of pack and packaging of Grower’s fruit to
      establish standards for packs and types of packs, which standards may be
      greater than those established by state, federal or industry grades. In
      addition, Handler reserves the right to establish quality and other
      reasonable standards for the purpose of determining which fruit, if any,
      may be placed in Handler’s controlled-atmosphere storage facilities.
             1.4.2 Marketing Decisions: Handler is authorized to market all fruit
      subject to this Agreement at such times and prices, and in such quantities as
      the market will accept and as Handler, in its sole discretion, deems to be in
      the best interest of Grower. All sales and marketing decisions, including
      extensions of credit, price adjustments, the use of handlers, dealers,
      brokers, dealers, or traders and the geographic location of purchasers, shall
      be made in the sole discretion of Handler.

CP at 72-73.

      The fruit handling agreement signed in March 2008 applied to the 2008 crop year.

Nevertheless, paragraph 3 of the agreement declared that it automatically renewed in

subsequent crop years unless either party chose to terminate the agreement in writing.

The agreement further extended its terms to include all crop years until Jim Voorhies paid

all debt owed Stadelman Fruit:

              3. TERM: The term of this Agreement is for the 2008 crop year;
      provided, however, that this Agreement shall be considered as
      automatically renewed from year to year thereafter, unless either party
      terminates this Agreement by giving the other party written notice not later
      than March 1 of the crop year in which termination is desired. In addition,
      the term of this Agreement shall automatically be extended and shall
      include all subsequent crop years and crops grown during such crop years
      until all obligations, including advances, owed by Grower to Handler under
      the terms of this Agreement have been paid in full unless otherwise
      determined by Handler. In other words, it is contemplated that so long as
      Grower is indebted to Handler, Grower will continue to bring Grower’s
      fruit to Handler for the purpose of handling and marketing in order to

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Stadelman Fruit, LLC v. Voorhies


      accommodate Handler’s economic interest as a handler and packer of
      Grower’s fruit and for the purpose of protecting Handler’s rights as a
      creditor of Grower. Termination shall be prospective only and shall not,
      unless otherwise agreed in writing, affect the rights, liabilities and
      obligations of the parties with respect to fruit which previously has been
      delivered by Grower to Handler for purpose of handling and marketing.

CP at 75.

      The 2008 fruit handling agreement allowed Stadelman Fruit to provide advances

or operating loans to Jim Voorhies, which loans Voorhies would secure with a mortgage.

The parties anticipated use of the advances for growing expenses. Voorhies would not

have marketed his apples through Stadelman Fruit without Stadelman Fruit’s willingness

to provide operating loans. The advances clause in the agreement read:

             7. ADVANCES: Handler may make discretionary advances to
      Grower to grow and harvest Grower’s fruit crop on such terms and
      conditions as Handler shall, in its sole discretion, determine to be
      appropriate. If Handler has agreed to make an advance to Grower, Grower
      hereby agrees to execute any security agreement, promissory note,
      financing statement, and other documents deemed reasonable and necessary
      by Handler to ensure the repayment of such advances and, in addition, any
      subordination agreements determined reasonable and necessary by Handler
      for such purpose. Handler’s decision to make advances in any particular
      instance shall not constitute an obligation or agreement by Handler to
      provide such advances to Grower in the future, and Grower acknowledges
      and agrees that such advances are discretionary with Handler.

CP at 77.

      The March 2008 fruit handling agreement allowed Stadelman Fruit to offset any

advancements and any handling charges against the proceeds of the sale of fruit:



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             6.2 Right of Offset: The parties understand and agree that Handler
      shall have the right to offset all advances, assessments, charges and
      expenses owed by Grower prior to the payment of any funds to Grower or
      any third party having an interest in Grower’s crops or proceeds thereof.

CP at 76. Voorhies also promised to execute any security documents Stadelman Fruit

requested:

             8.2 Security Documents: Grower shall, procure and deliver to
      Handler or execute for Handler, at its request, any additional security
      agreement, financing statement, negotiable warehouse receipt, promissory
      note for advance of credit given by Handler to Grower, or other writing
      necessary to create, preserve, protect or enforce Handler’s lien and/or
      security interest in Grower’s crops and its rights under state and federal
      law.

CP at 77. The fruit handling agreement provided for periodic accountings:

              10. PAYMENT AND ACCOUNTING: Handler shall, upon written
      request by Grower, provide periodic accountings of all Grower’s fruit sold
      to that date, less charges, advances and authorized deductions. Handler
      shall remit any balance due Grower within sixty (60) days after receipt of
      the proceeds from the sale of Grower’s fruit and final accountings have
      been made and completed, provided, however, that Handler does not
      guarantee collection on fruit sold, placed, or consigned. In determining
      whether any balances are owed by Grower, charges, expenses and advances
      in connection with all fruit subject to this Agreement shall be taken into
      consideration. . . .

CP at 80.

      In the event Jim Voorhies failed to deliver a crop to Stadelman Fruit, paragraph 13

of the fruit handling agreement granted Stadelman Fruit liquidated damages in the sum of

one hundred and twenty percent of the ordinary handling and marketing fees Stadelman

Fruit would have received from the crop. Finally, paragraph 14.2 of the agreement

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Stadelman Fruit, LLC v. Voorhies


granted the prevailing party recovery of reasonable attorney fees and costs in the event of

litigation between the parties.

       On the same day he signed the fruit handling agreement, Jim Voorhies executed

two mortgages to secure Stadelman Fruit’s advances. The first mortgage encumbered

two parcels of Voorhies’ real property, and the second burdened Voorhees’ interest in a

real estate contract. Voorhies ultimately defaulted on the real estate contract, which left

only the mortgage on the real property as security.

       The mortgage covered repayment of Stadelman Fruit’s advances and read:

               [T]o secure the payment of all sums due Mortgagee [Stadelman
       Fruit] pursuant to the crop handling agreement of even date herewith
       between Mortgagor [Jim Voorhies] and Mortgagee, including all sums
       advanced to provide crop financing for the crop to be grown upon the
       following described real estate, situated in the County of Yakima, State of
       Washington:

              PARCEL A:
              The West half of the West half of the Northwest quarter of Section
       23, Township 14 North, Range 17, E.W.M.,
              EXCEPT the right of way for County Road along the North line
       thereof.
              (Assessor’s Parcel No. 171423-22002)

             PARCEL B:
             The East half of the West half of the Northwest quarter of Section
       23, Township 14 North, Range 17, E.W.M.,
             EXCEPT right of way for County Road along the North line thereof.
             (Assessor’s Parcel No. 171423-22001)

              To secure the performance of each agreement of the mortgagor
       herein contained and the payment of all sums due Mortgagee in providing
       crop financing for the 2008 crop to be grown upon said premises, including

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No. 35165-3-III
Stadelman Fruit, LLC v. Voorhies


       all renewals, modifications, and extensions thereof, and also such additional
       sums as shall be agreed upon.

CP at 84-85.

       Stadelman Fruit handled all of Jim Voorhies’ crops for the 2008, 2009, and 2010

years. During this period, Stadelman Fruit advanced $575,252.95 to Voorhies.

Stadelman Fruit received $464,080.22 in receipts from Voorhies’ apples to offset the

advances, which left an overdue balance of $111,172.73. Notice that the proceeds from

Jim Voorhies’ crop failed to pay the advances and Stadelman Fruit’s expenses, such that

Voorhies never received any profit. Jim Voorhies testified that the parties never reached

an agreement or understanding that the mortgage on his land extended to crop years 2009

and 2010.

       Stadelman Fruit also paid off a $42,380.92 senior lien and property taxes totaling

$23,831.88 on the mortgaged land. Those payments raised the debt owed by Voorhies to

Stadelman Fruit to the total sum of $177,385.53. Presumably because of the debt Jim

Voorhies owed Stadelman Fruit, Stadelman Fruit refused to loan further sums to Jim

Voorhies in 2011, but insisted that Voorhies deliver his 2011 crop to Stadelman Fruit.

                                      PROCEDURE

       On July 25, 2011, Stadelman Fruit initiated this suit to foreclose on its mortgage.

In his answer, Jim Voorhies asserted that Stadelman Fruit was negligent and failed to

follow Voorhies’ instructions in packing and selling the crop, which neglect artificially


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No. 35165-3-III
Stadelman Fruit, LLC v. Voorhies


deflated prices. Voorhies also complained of Stadelman Fruit’s accounting and claimed

that the company engaged in deceptive acts in violation of the Consumer Protection Act,

chapter 19.86 RCW. Voorhies, in his answer, admitted he executed the mortgage and

agreed Stadelman Fruit handled his fruit from 2008-2010.

       Stadelman Fruit and Jim Voorhies filed cross motions for summary judgment.

Tim Welch, Stadelman Fruit’s chief financial officer, filed a declaration to address

Voorhies’ accounting concerns. Although Jim Voorhies alleged in a counterclaim that

Stadelman Fruit negligently handled, packed, and marketed Voorhies’ fruit, Voorhies did

not assert any facts supporting a claim of negligence in response to Stadelman Fruit’s

summary judgment motion. The trial court granted Stadelman Fruit’s summary judgment

motion in its entirety. The trial court awarded Stadelman Fruit $103,632.95 in

prejudgment interest and $93,667.05 in attorney fees and costs.

                                 LAW AND ANALYSIS

       Issue 1: Whether the agreement between Stadelman Fruit and Jim Voorhies

requires Voorhies to pay to Stadelman Fruit any deficiency after applying the proceeds

from the sale of Voorhies’ crop to debt owed Stadelman Fruit?

       Answer 1: Yes.

       Jim Voorhies claims that he never agreed to pay any shortfall of money resulting

from the proceeds of his crop failing to retire the debt incurred to Stadelman Fruit for

advances and handling charges. Jim Voorhies does not posit that this argument raises a

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Stadelman Fruit, LLC v. Voorhies


question of fact. Instead, he asserts that one party should prevail as a matter of law based

on the language of the fruit handling agreement. Voorhies argues he should prevail

because the fruit handling agreement lacks any language requiring his payment of any

shortfall of sums advanced. We disagree.

       A reviewing court attempts to determine the parties’ intent by focusing on the

objective manifestations of the agreement, rather than on the unexpressed subjective

intent of the parties. Max. L. Wells Trust v. Grand Central Sauna & Hot Tub Co. of

Seattle, 62 Wn. App. 593, 602, 815 P.2d 284 (1991). The critical language in the fruit

handling agreement arises in paragraph 7 that addresses advances. The language dictates:

              If Handler has agreed to make an advance to Grower, Grower hereby
       agrees to execute any security agreement, promissory note, financing
       statement, and other documents deemed reasonable and necessary by
       Handler to ensure the repayment of such advances . . . .

CP at 77 (emphasis added). Although the language does not expressly require repayment

of any shortfall, the language does not declare that Stadelman Fruit waives any right to

repayment of the deficiency. Stadelman Fruit could demand that Jim Voorhies sign a

promissory note for debt owed and this provision would serve no purpose if Jim Voorhies

lacked an obligation to pay any deficiency after a credit for sale proceeds.

       Jim Voorhies emphasizes that paragraph 7 of the fruit handling agreement refers to

“advances,” rather than “loans.” Nevertheless, Voorhies provides no authority to




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Stadelman Fruit, LLC v. Voorhies


distinguish between a loan and an advance and does not explain why advances need not

be paid in full.

       Jim Voorhies also highlights that he never signed a promissory note and

Stadelman Fruit never asked him to sign a note. Voorhies does not provide any authority,

however, establishing that a promissory note must evidence a debt in order that the debtor

become obligated to pay the debt. To the contrary, an “account” or a debt need not be

evidenced by any writing or promise to pay. In re Stratman’s Estate, 231 Iowa 480, 1

N.W.2d 636, 641-43 (1942).

       Jim Voorhies asserts that Wallace v. Kuehner, 111 Wn. App. 809, 46 P.3d 823

(2002), requires a ruling in his favor. In Wallace, a father loaned his daughter money.

Thereafter the father discarded the promissory note and declared that, if his daughter lost

the money loaned, the amount would be taken from her inheritance. The court ruled that

the father could not recover on the debt because of the agreement to collect the money

only by deducting the sum from the daughter’s inheritance. Jim Voorhies supplies no

testimony that Stadelman Fruit ever agreed to forgo amounts owed to it for the crop years

2008, 2009, and 2010.

       Jim Voorhies provided some testimony that Stadelman Fruit a decade earlier

agreed to take any default in payment from the next year’s crop. We note that such a

waiver of amounts owed occurred only after the sale of the crop. Voorhies provides no

testimony that Stadelman Fruit waived payment after the sale of the 2008, 2009, or 2010

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No. 35165-3-III
Stadelman Fruit, LLC v. Voorhies


crops. Also, on appeal, Voorhies does not argue or provide authority that the earlier

practice constituted a custom that bound Stadelman Fruit in later years. Anyway, the

agreement in the earlier years was that Voorhies would deliver additional fruit to pay for

the debt. Voorhies exhibits no willingness to deliver any further crops to Stadelman

Fruit.

         This court reviews an order for summary judgment de novo. Keck v. Collins, 184

Wn.2d 358, 370, 357 P.3d 1080 (2015). The court must determine whether 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; Parkin v. Colocousis,

53 Wn. App. 649, 653, 769 P.2d 326 (1989). Summary judgment on an issue of contract

interpretation is proper when the parties’ written intent, viewed in light of the parties’

other objective manifestations, has only one reasonable meaning. Hall v. Custom Craft

Fixtures, Inc., 87 Wn. App. 1, 9, 937 P.2d 1143 (1997).

         We conclude that the fruit handling agreement bears only one reasonable meaning.

Jim Voorhies does not provide extrinsic testimony that clashes with that meaning.

Voorhies agrees the meaning of the fruit handling agreement creates only a question of

law.

         Issue 2: Whether the mortgage secured debt for crops years after crop year 2008?

         Answer 2: Yes.

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No. 35165-3-III
Stadelman Fruit, LLC v. Voorhies


       Jim Voorhies argues that the mortgage he signed in March 2008 did not extend to

any debt owed for the 2009 and 2010 crops. Since crops delivered to Stadelman Fruit in

2008 and the beginning of 2009 retired the 2008 debt, Voorhies contends that debt no

longer encumbers his property through the mortgage. In so arguing, Voorhies relies on

his own testimony that the parties never entered an agreement or understanding that the

mortgage applied to debt other than debt incurred in 2008. He does not testify, however,

that the parties ever expressly concurred that the mortgage did not cover debt beyond

crop year 2008. He provides no testimony that the parties bespoke about what crop years

the mortgage controlled. We deem the question of the debt covered by the mortgage to

be controlled by the language of the mortgage and fruit handling agreement.

       The mortgage signed by Jim Voorhies in March 2008 posited that it secured “the

payment of all sums due [Stadelman Fruit] in providing crop financing for the 2008 crop

to be grown upon said premises, including all renewals, modifications, and extensions

thereof, and also such additional sums as shall be agreed upon.” CP at 85. The debt

created by advances in 2009 and 2010 could be considered renewals or modifications.

But we need not base our decision on such a conclusion since the 2009 and 2010 debt

resulted from such “additional sums as shall be agreed upon.” CP at 85. The language

does not require that both parties agree that the mortgage will secure additional sums,

only that the parties agree to additional sums provided by Stadelman Fruit for crop

financing. Jim Voorhies obviously agreed to the sums advanced in 2009 and 2010 or he

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No. 35165-3-III
Stadelman Fruit, LLC v. Voorhies


would not have accepted the funds.

       Issue 3: Whether Jim Voorhies owes interest on the debt owed to Stadelman Fruit?

       Answer 3: Yes.

       Jim Voorhies next contends that the fruit handling agreement does not afford

Stadelman Fruit interest on any debt owed. Nevertheless, an agreement need not

expressly provide for interest on any debt for interest to be owed. RCW 19.52.010 reads,

in part:

              (1) Every loan or forbearance of money, goods, or thing in action
       shall bear interest at the rate of twelve percent per annum where no
       different rate is agreed to in writing between the parties. . . .

The statute applies to advances from one party to another. Hewitt v. Jones, 149 Wash.

360, 364-65, 271 P. 76 (1928); Puget Sound Telephone Co. v. Telechronometer Company

of America, 130 Wash. 468, 481, 227 P. 867 (1924).

       Stadelman Fruit charged Jim Voorhies for interest from the date it filed its

complaint. Voorhies provided the trial court no countervailing calculation for interest

owed. The trial court correctly granted interest to Stadelman Fruit.

       Issue 4: Whether Jim Voorhies created a genuine issue of material fact regarding

the accounting provided by Stadelman Fruit as to amounts owed?

       Answer 4: No.

       Next, Jim Voorhies claims Stadelman Fruit failed to account for all of Voorhies’

apple revenue in the company’s accounting. Stadelman Fruit included in its July 2011

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Stadelman Fruit, LLC v. Voorhies


complaint an accounting summary, which included statements listing the advances made,

costs incurred, and sale proceeds received by Stadelman Fruit. Voorhies never then

challenged the accounting.

       As part of this lawsuit, Jim Voorhies avers that Stadelman Fruit did not credit

three bins of apples and thereby failed to account for $26,014.74 in revenue during 2008.

Nevertheless, Stadelman Fruit’s Chief Financial Officer Tim Welch’s declaration and

attached accounting establishes that Stadelman Fruit credited Voorhies for the purported

missing pool returns totaling $26,014.74.

       Jim Voorhies contends that Stadelman Fruit’s accounting for his individual return

for 2009 shows a “net” of $25,954.75, while the “pool return” shows a net credit to his

account of $61,662.89, a difference of $35,708.14. Tim Welch addressed this concern.

Voorhies misreads the pool and grower statements. Welch observed:

               In sum, both statements are wholly consistent as to the revenue and
       charges to Pool 4, that is, Mr. Voorhies’ apples, and that analysis is quite
       simple. That is, the apples in Pool 4 returned $88,118.91 in gross revenue,
       Pool 4 was therefrom charged with $62,164.14 in packing/storage charges,
       and the difference of $25,954.75 was credited to Mr. Voorhies account.
       The matter raised by Mr. Voorhies only serves to cause confusion as he
       refers to the Pool Statement’s listing of internal accrual/cost type
       accounting entries used by Stadelman in the management of its operation
       and confuses that the “net amount credited to your account” is referring to
       Stadelman (and not Mr. Voorhies) as Stadelman is the intended user of the
       “Pool Statement.”

CP at 460-61. Tim Welch’s declaration demonstrates the pool returns to which Voorhies

refers actually are from 2010.

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Stadelman Fruit, LLC v. Voorhies


       Jim Voorhies next complains Stadelman Fruit did not credit him $11,896.11 in

2010. Nevertheless, Tim Welch’s declaration establishes that Stadelman Fruit credited

Voorhies with the correct amount and Voorhies again misread the accounting statements.

Although Stadelman Fruit initially omitted the income in its accounting, the company

later credited, as shown in records attached to Welch’s declaration, the full $11,896.11.

       Issue 5: Whether any facts can sustain Jim Voorhies’ claim under the Consumer

Protection Act?

       Answer 5: No.

       Jim Voorhies also alleges the trial court incorrectly dismissed the Washington

Consumer Protection Act counterclaim. The five elements of a private Consumer

Protection Act action include: (1) an unfair or deceptive act or practice, (2) in the conduct

of trade or commerce, (3) which impacts the public interest, (4) injury to the plaintiffs in

their business or property, and (5) a causal link between the unfair or deceptive act and

the injury suffered. Mason v. Mortgage America, Inc., 114 Wn.2d 842, 852, 792 P.2d

142 (1990).

       Jim Voorhies highlights purported accounting inaccuracies to contend that

Stadelman Fruit’s bookkeeping constituted an unfair practice that could impact other

growers with whom Stadelman Fruit conducted business. But we have concluded no

facts show any accounting error.

       Issue 6: Whether the independent duty doctrine bars Jim Voorhies’ negligence

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Stadelman Fruit, LLC v. Voorhies


claim?

         Answer 6: We need not address this issue since Voorhies no longer claims

Stadelman Fruit performed negligent acts.

         Jim Voorhies claims the independent duty doctrine, contrary to the trial court’s

ruling, does not bar his negligence claim. To the extent the independent duty doctrine

still exists, the doctrine may bar a party to a contract from asserting a tort theory against

the other contracting party. Alejandre v. Bull, 159 Wn.2d 674, 683, 153 P.3d 864 (2007).

         In response to Stadelman Fruit’s summary judgment motion to grant it judgment

for debt owed and to dismiss Jim Voorhies’ counterclaims for Consumer Protection Act

violations and negligence, Voorhies raised no facts supporting his negligence theory.

During oral argument before this court, Voorhies, in response to questioning as to

whether he still asserted a negligence claim, answered that no negligence was asserted

before the trial court. Since Voorhies no longer asserts a claim of negligence, we need

not address whether the independent duty doctrine bars any claim.

         Issue 7: Whether this court should grant Stadelman Fruit reasonable attorney fees

and costs incurred on appeal?

         Answer 7: Yes.

         Both Jim Voorhies and Stadelman Fruit request reasonable attorney fees according

to the attorney fees clause in the fruit handling agreement. Pursuant to RAP 18.1, we

grant Stadelman Fruit, as the prevailing party, reasonable attorney fees and costs incurred

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Stadelman Fruit, LLC v. Voorhies


on appeal.

                                       CONCLUSION

          We affirm the trial court's grant of summary judgment in favor of Stadelman Fruit

for amounts owed, for foreclosure of the mortgage, and for dismissal of Jim Voorhies'     ·

counterclaims. We grant Stadelman Fruit reasonable attorney fees and costs incurred on

appeal.

      A majority of the panel has determined this opinionwill not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Korsmo, J.           .1
                 {

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Siddoway, J.              {J



                                             18
