                                                                         FILED
                                                                     DECEMBER 6, 2016
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division Ill




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

LIZ TATE,                                      )
                                               )        No. 33974-2-111
                     Appellant,                )
                                               )
       V.                                      )
                                               )
TATE TRANSPORTATION, INC., a                   )         UNPUBLISHED OPINION
Washington corporation,                        )
                                               )
                     Respondent.               )

       KORSMO,    J. - Liz Tate appeals the dismissal at summary judgment of her

wrongful termination action, arguing that an agreement for continued employment

existed that was not subject to the statute of frauds and that a material factual question

existed concerning whether she was terminated for cause. We conclude that the trial

court correctly determined that no agreement existed and affirm.

                                          FACTS

       Ms. Tate and her then-husband Tom Tate owned and operated a trucking

company, Tate Transportation. They dissolved their marriage and Tom Tate assumed

ownership of the business. Ms. Tate continued working for the company. In 2008, after

20 years operating the business, Mr. Tate sold the company to Ray and Chris Nulph, a

father and son.
No. 33974-2-III
Tate v. Tate Transp., Inc.


        Ms. Tate served as the company's safety director and was responsible for safety

and compliance needs, including risk management and insurance. The Nulphs retained

Ms. Tate after the purchase in order to ensure a smooth transition, but reduced her to a

part-time position making $50 per hour and retaining the same benefits. Ray Nulph also

wanted the two Tates to train Chris Nulph so that he would be able to eventually run the

business on his own. Because of his inexperience, the Tates had difficulty training him

and Ms. Tate indicated she had to be hard on him.

        As Tom Tate's role with the company waned, Ms. Tate became more concerned

about her job security. She asked Chris Nulph if her position was secure:

        On several occasions I asked Chris point blank: "Is my job as Safety
        Director secure for the indefinite future?" Chris would always assure me,
        in no uncertain terms, that I would have a job with Tate Transportation as
        long as I wanted. In fact, he told me on numerous occasions, ... that I
        would have the job as long as I wanted and if I decided to leave that he
        would like me to promise the Company that I would provide one-year
        notice so I could hire and train my replacement. I agreed and said that I
        would give the notice and train my successor.

Clerk's Papers (CP) at 114-115. One of these conversations took place in front of Mr.

Tate.

        In June 2012, Ms. Tate desired to have a friend visit from Mexico and needed to

assure Homeland Security of her own employment to aid the gaining of a visa for her

visitor. Mr. Nulph agreed that her employment was still secure and let her draft a letter

for his signature. He signed the following letter on the company letterhead:



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No. 33974-2-III
Tate v. Tate Transp., Inc.


       Statement from Employer for Liz Tate

       Liz Tate joined this company as an owner [in] June 1988; she became an
       employee [in] May 2008 when the company was sold.

       In May of 2008, the company was sold to Ray and Chris Nulph. They have
       had total ownership of the company since that time. Liz Tate, now an
       employee, was asked to stay on with the company to insure a smooth
       transfer of operations, which she has done. This is considered a long term
       temporary position. She has agreed to stay on as an employee at least until
       January 2017.

       She receives an annual wage of approximately, $75,000.00 with benefits.
       Her position is important to the company, as she is the one who handles all
       of the Federal Department of Transportation Compliance requirements,
       controlled Substance testing, accident investigation, hiring and termination
       of all regulated drivers.

       If I can be of any further assistance, please contact me.

       Sincerely,
       [Signature]
       Chris Nulph
       Secretary/Treasure [sic]
       Tate Transportation, Inc.

CP at 126. The January 2017 date had been suggested by Mr. Nulph.

       The trucking company discovered in May 2014, that it would be losing two of its

biggest customers. Chris Nulph thought the company would need to expand its business

in Oregon to make up for the losses. On May 27, 2014, he asked Ms. Tate to return to

full-time work in order to expand the business, but did not tell her about the loss of

customers and that the business would be struggling. She declined the opportunity given



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No. 33974-2-III
Tate v. Tate Transp., Inc.


the travel and because the work environment in the office was stressful. She indicated

that if he could improve the office situation, she would reconsider.

       The company fired Ms. Tate on May 30. The stated reason was a cost-cutting

measure. The Nulphs also indicated they considered how she "refused to help us at the

time we needed her to help develop new business, her bullying behavior ... and how she

frequently undermined [Chris's] authority in the office." CP at 57.

       Ms. Tate filed this wrongful termination action in November 2014. Tate

Transportation eventually sought summary judgment. The trial court granted the motion

on the basis that there was no employment contract that would satisfy the statute of

frauds. Report of Proceedings at 28. After an order was entered, Ms. Tate timely

appealed to this court.

                                        ANALYSIS

       The parties dispute whether there was an agreement, whether the agreement

complied with the statute of frauds, and whether material questions of fact exist

concerning the reason Ms. Tate was terminated from her position. We agree with the

trial court that any agreement did not comply with the statute of frauds and, thus, failed as

a matter oflaw. We therefore need not address the other contentions.

       The standards for review of summary judgment rulings are well settled. We review

a summary judgment de novo; our inquiry is the same as the trial court. Lybbert v. Grant

County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). We view the facts, and all reasonable

                                             4
No. 33974-2-III
Tate v. Tate Transp., Inc.


inferences to be drawn from them, in the light most favorable to the nonmoving party. Id.

If there is no genuine issue of material fact, summary judgment will be granted if the

moving party is entitled to judgment as a matter of law. Id.; Trimble v. Wash. State Univ.,

140 Wn.2d 88, 93, 993 P.2d 259 (2000).

       Employment in Washington is "at will" unless a contract or an implied contract

exists that provides for other possibilities. Thompson v. St. Regis Paper Co., 102 Wn.2d

219,223, 229-230, 685 P.2d 1081 (1984); Roberts v. Atlantic Richfield Co., 88 Wn.2d

887, 891, 568 P.2d 764 (1977). Termination only for cause will exist if either the parties

agree to it or if the employee gives some consideration other than the performance of her

job. Roberts, 88 Wn.2d at 894.

       Our statute of frauds requires that all contracts extending more than one year must

be in writing. In relevant part, it provides:

       In the following cases, ... any agreement, contract, and promise shall be
       void, unless such agreement, contract, or promise, or some note or
       memorandum thereof, be in writing, and signed by the party to be charged
       therewith, ... that is to say: (1) Every agreement that by its terms is not to
       be performed in one year from the making thereof.

RCW 19.36.010. For a writing to satisfy the statute of frauds, it must contain every

essential ele~ent of the contract. Smith v. Twohy, 70 Wn.2d 721, 725, 425 P.2d 12

(1967). The essential elements of a contract include the parties, the promise, the terms

and conditions, and the consideration. Family Med. Bldg., Inc. v. Dep't ofSoc. & Health

Servs., 104 Wn.2d 105, 108, 702 P.2d 459 (1985). In an employment context, the writing

                                                5
 No. 33974-2-III
 Tate v. Tate Transp., Inc.


 must include the job responsibilities. DePhillips v. Zolt Cons tr. Co., Inc., 136 Wn.2d 26,

 31, 959 P .2d 1104 ( 1998) (stating, in the statute of limitations context, that a signed

 employee handbook is an insufficient writing because it does not name one of the parties,

 nor does it list job responsibilities).

        Ms. Tate contends that her promise to give one year's notice before leaving is the

 extra consideration necessary to establish that she could only be terminated for cause.

 That contention, however, undercuts her position on the statute of frauds argument. For

 one thing, it establishes that the term of employment was at least one year and, thus,

 within the writing requirement of the statute. It also suggests that essential terms of the

 agreement were not stated in writing.

        Ms. Tate identifies the letter to Homeland Security as the writing that satisfied the

 statute of frauds. 1 That document, however, is insufficient to establish the essential terms

 of the agreement. In particular, it provides no evidence of the consideration supporting

· the alleged contract because her promise to give one year's notice is not contained in the

 letter. Similarly, there is no evidence that the parties had agreed Ms. Tate could only be




        1
          For purposes of this opinion, we will accept the letter to a third party as a "writing,"
 despite Tate Transportation's argument to the contrary. There appears to be no pertinent
 Washington authority, but there is some ancient other authority in support of Ms. Tate's
 position. See Annotation, Writing Between One of the Parties to a Contract and His Agent
 or· a Third Person as Satisfying the Statute of Frauds, 112 A.L.R. 490 (1938); Truskett v.
 Rice Bros. Live Stock Comm 'n Co., 180 S.W. 1048 (Mo. Ct. App. 1915).

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No. 33974-2-III
Tate v. Tate Transp., Inc.


terminated for cause. The one year notice provision was an essential term of the

agreement because it altered the at will nature of the relationship.

       Because the purported agreement was for more than one year, it was required to be

in writing pursuant to the statute of frauds. The only acknowledged writing, the letter to

Homeland Security, was insufficient. Accordingly, the trial court correctly granted

summary judgment on that issue.

       Affirmed.

       A 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:




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