                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        January 4, 2017




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    LONNIE RAY TRAYLOR,                                            No. 48322-0-II

                                Appellant,

           v.

    MOST WORSHIPFUL PRINCE HALL
    GRAND LODGE F & A.M. WASHINGTON
    AND JURISDICTION and
    GREGORY D. WRAGGS, SR., Most                             UNPUBLISHED OPINION
    Worshipful Grand Master, comprised thereof,

                                Respondents.

         WORSWICK, J. — Lonnie Ray Traylor appeals the superior court’s summary dismissal of

his claims against the Most Worshipful Prince Hall Grand Lodge (Grand Lodge). Traylor’s

arguments on appeal are not entirely clear, but are based on his dissatisfaction with the Grand

Lodge’s decision to suspend his membership and the disciplinary procedures used to decide the

suspension. He appears to claim Grand Lodge violated the Washington Law Against

Discrimination (WLAD),1 denied him Masonic due process during the suspension proceedings,

breached a contract to reinstate his membership, and harassed and defamed him. All of Traylor’s

claims fail, and we affirm summary judgment dismissal.




1
    Ch. 49.60 RCW.
No. 48322-0-II


                                              FACTS

                         I. THE GRAND LODGE CONSTITUTION AND BYLAWS

        The Prince Hall Grand Lodge of Washington is a voluntary nonprofit fraternal

association incorporated in Washington, and consisting of exclusively black2 members. As a

condition of membership in the Grand Lodge, a member must agree to abide by the Grand Lodge

Constitution and the Grand Lodge Bylaws.

        Under the Grand Lodge Constitution, the membership has the ultimate authority over the

Grand Lodge’s legislative, judicial, and executive decisions. The Grand Lodge Constitution

states, in pertinent part:

        This Grand Lodge is the only source of authority and exercises exclusive
        jurisdiction in all matters pertaining to Ancient Craft Free Masonry within the State
        of Washington and Jurisdiction; it has supreme, inherent and absolute legislative,
        judicial and executive Masonic authority and power . . . . It is subject only to the
        Ancient Landmarks, and from its decisions in relation to them or any Masonic
        subject there is no appeal.

Clerk’s Papers (CP) at 580 (Grand Lodge Const. art. 11).

        The Grand Lodge Constitution defines the power of the Grand Master, the Grand Lodge’s

highest ranking executive officer. The Grand Lodge Constitution provides that “[w]hen the

Grand Lodge is not in session,” the Grand Master “shall decide all questions of usage, order and

Masonic law, . . . and his decisions are final and conclusive, subject to the approval of the Grand

Lodge in session.” CP at 581 (Grand Lodge Const. art. 13).




2
 The Grand Lodge uses the term “black” rather than “African American” because Prince Hall
was a Barbadian, not an African American. We respect Grand Lodge’s choice of designation
and adopt it.


                                                 2
No. 48322-0-II


       Each July, the Grand Lodge holds the annual communication to elect the Grand Master,

to approve or disapprove the Grand Master’s actions for the previous year, and to hear appeals

by members from “Lodge or Worshipful Master decisions.” The Grand Lodge Bylaws reiterate

that the membership has ultimate authority over all the Grand Lodge, and sets forth the process

for an appeal. Under the Bylaws, “Sections 207.01 through 207.10” govern an appeal from

“Worshipful Master decisions.” CP at 595. Section 207.01 provides, in pertinent part:

       Appeals shall be submitted to the Grand Lodge for review of judgments, orders,
       verdicts, decisions or sentences of a lodge in any disciplinary proceedings of the
       lodge or the rulings or decisions of Masters, . . . and the accused . . . has the right
       to and may appeal to the Grand Lodge from any judgment, order, verdict, decision
       or sentence rendered or adjudged by the lodge.

CP at 595 (Grand Lodge Bylaws, Title 207, § 207.01).

                                          II. SUSPENSION

       Lonnie Traylor became a Grand Lodge member in 1988. In May 2014, a Masonic trial

was held in which Traylor was accused of un-Masonic conduct. A trial commission of Masons,

headed by Melvin Lozan, was appointed to hear the case. Traylor became angry and walked out

during the trial. The trial commission completed the trial without Traylor and unanimously

concluded that Traylor had acted in an un-Masonic manner. The then-sitting Grand Master

suspended Traylor’s membership.

       Traylor appealed his suspension to the Grand Lodge’s grievance and appeal committee.

The committee reviewed the matter and recommended that Traylor’s suspension be upheld, but

that the length of the suspension be reduced to a total of four years and six months. In

accordance with its procedures, the committee presented its recommendation to the entire Grand




                                                 3
No. 48322-0-II


Lodge membership for its vote at the 2014 annual communication. The membership voted to

affirm Traylor’s suspension. The minutes from the annual communication state in relevant part:

       PGM Troutt #3 moved, that the suspension modification as approved by the Appeal
       and Grievance Committee and the MWGM actions be sustained on this matter RW
       Roy Price #83 seconded. Motion carried. MWGM Hughes stated that eventually,
       Brother Traylor #102, name would be put back on the website.

CP at 802 (emphasis added).

       After the annual communication, Traylor met with the newly elected Grand Master

Gregory Wraggs and asked him to overturn his suspension. Traylor claims that Wraggs agreed

to overturn Traylor’s suspension and reinstate his membership if Traylor rescinded his appeal to

the Grand Lodge. Following their meeting, Traylor prepared a memorandum of understanding

agreeing not to pursue legal action if the Grand Lodge would reinstate his membership. Traylor

mailed the memorandum to Wraggs, but Wraggs did not sign it and declined to reinstate Traylor.

                                            III. LAWSUIT

       Traylor filed suit against Grand Lodge and Wraggs on November 12, 2014. His pro se

complaint is difficult to understand, but the first sentence states, “This action is being brought

under Washington Law [A]gainst Discrimination, RCW49.60 et seq.” CP at 1. The complaint

proceeds to review Traylor’s dissatisfaction with his suspension, and argues that the Grand

Lodge and Wraggs violated the Masonic code book. Traylor sought full reinstatement to

membership, loss of income at $75,000 each year for 10 years, and all properties and assets of

Grand Lodge.

       On January 26, 2015, Traylor filed a motion for default judgment against Grand Lodge.

Grand Lodge filed its answer and the motion for default was denied.




                                                  4
No. 48322-0-II


       Traylor filed a motion for issuance of subpoena duces tecum in an attempt to compel

discovery. The superior court denied the motion because Traylor had issued the request for

production the day prior. The superior court explained the discovery process and encouraged

Traylor to communicate with the Grand Lodge. Traylor also filed a motion for summary

judgment. The court denied the motion after determining that Traylor’s motion actually sought

further discovery.

       Grand Lodge filed a motion for summary judgment, arguing that Traylor alleged

insufficient facts to support a claim under WLAD, several of Traylor’s claims are barred by the

statute of limitations, Traylor’s breach of contract claim fails for indefiniteness and lack of

consideration, and Traylor’s suspension was in accordance with the Grand Lodge Constitution.

The superior court granted Grand Lodge’s motion for summary judgment and dismissed all of

Traylor’s claims.

                                            ANALYSIS

                          I. DEFAULT, SANCTION AND DISCOVERY ISSUES

A.     Motion for Default

       Traylor assigns error to the superior court’s denial of his motion for default. However, he

provides no further argument or authority and therefore we do not consider it. Am. Legion Post

No. 32 v. City of Walla Walla, 116 Wn.2d 1, 7, 802 P.2d 784 (1991) (“In the absence of

argument and citation to authority, an issue raised on appeal will not be considered.”); RAP

10.3(a)(6).




                                                  5
No. 48322-0-II


B.      Sanctions

        Traylor also assigns error to the superior court’s failure to sanction Grand Lodge’s

counsel for not providing requested discovery, filing a “bogus order” to dismiss, not timely

responding to Traylor’s motion for summary judgment, and not complying with the case order

schedule. Br. of Appellant at 1. However, Traylor never requested that the superior court

impose sanctions. Generally, we will not consider an issue raised for the first time on appeal.

RAP 2.5. Because Traylor did not ask the superior court to impose sanctions, we do not consider

this issue.

C.      Discovery

        Traylor appears to argue that he was improperly denied discovery. However, the superior

court never entered any discovery orders. Traylor filed multiple motions in the court regarding

discovery,3 but the transcripts from the hearings on those motions show that the issue was

premature and, later, that Grand Lodge had provided discovery. Indeed, at one such hearing the

superior court clarified, “You are not asking for me to order him to produce any additional

documents,” and Traylor responded, “No, sir.” Verbatim Report of Proceedings (VRP) (June 5,

2015) at 6.

        Traylor’s displeasure appears to center on not being provided an audio recording of the

Masonic trial or the annual communication. The record reflects that no such Masonic trial

recording exists. A recording of the annual communication was provided to Traylor. When

Traylor continued to complain that he did not have the annual communication recording, Grand


3
 These motions varied from motions for subpoena to motions for summary judgment. At each
hearing, the superior court attempted to clarify what Traylor sought and properly instructed the
parties on how to proceed.


                                                 6
No. 48322-0-II


Lodge sent multiple letters explaining that it had been provided, offering to have him listen to

their copy, and inquiring as to what the continuing dispute was. The transcript reflects Traylor’s

position that the audio provided to him was inaccurate, but nothing in the record suggests that

other recordings existed and were possessed by Grand Lodge.

          Because the trial court made no discovery order, there is no decision for us to review.

Traylor’s discovery argument fails.

                                       II. SUMMARY JUDGMENT

A.        Legal Principles

          We review trial court’s summary judgment order de novo, performing the same inquiry

as the trial court and viewing all facts and reasonable inferences in the light most favorable to the

nonmoving party. Elcon Constr., Inc. v. Eastern Washington University, 174 Wn.2d 157, 164,

273 P.3d 965 (2012). “A genuine issue of material fact exists where reasonable minds could

reach different conclusions.” Michael v. Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695

(2009).

          The moving party bears the initial burden of showing there are no genuine issues of

material fact. Pacific Northwest Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 342, 350,

144 P.3d 276 (2006). To establish the existence of a genuine issue of material fact, the

nonmoving party may not rely on speculation or argumentative assertions that unresolved factual

issues remain; instead, it must set forth specific facts that sufficiently rebut the moving party’s

contentions. Michael, 165 Wn.2d at 601-02. If the nonmoving party fails to meet this burden,

summary judgment is appropriate. Pacific Northwest Shooting Park Ass’n, 158 Wn.2d at 351.




                                                   7
No. 48322-0-II


B.     Washington Law Against Discrimination

       Traylor contends that this lawsuit is “being brought under Washington Law [A]gainst

Discrimination, RCW49.60.” Br. of Appellant 14. Because Traylor fails to show a prima facie

case, or even allege sufficient facts to support his claim, his claim fails.

       The WLAD, chapter 49.60 RCW, under RCW 49.60.010 declares as a civil right the right

to be free from discrimination because of race, creed, color, national origin, families with

children, sex, marital status, age, or the presence of any sensory, mental, or physical disability, or

the use of a trained dog guide or service animal by a disabled person.

       Traylor brings his claim under RCW 49.60 generally, and fails to offer any further

authority to support his claim. Furthermore, it is unclear how Traylor believes he was

discriminated against. Traylor contends that “black on black crime in discrimination happens

every day and this is not an exception and the Grand Lodge and its current and past leader is not

exempt from this kind of behavior.” CP at 460. However, Traylor fails to argue that Grand

Lodge’s actions were motivated by “black on black” animus. Traylor provides no elucidation as

to the basis of his WLAD claim and the record supports none.

C.     Contract

       Traylor also appears to argue that Wraggs breached a contract with him when he refused

to reinstate Traylor’s membership. Because no enforceable contract existed, we disagree.

       Traylor bases his breach of contract claim on the in-person meeting he had with Wraggs

regarding Traylor’s suspension. Traylor contends that at the meeting, Wraggs agreed to overturn

Traylor’s suspension and reinstate his membership if Traylor rescinded his appeal and did not

pursue further legal action against the Grand Lodge. Traylor explains that they “both agreed that



                                                   8
No. 48322-0-II


we would come up with a memorandum of understanding and he requested that I put it in writing

and mail it to his home address.” Br. of Appellant 17. Traylor drafted the memorandum of

understanding, signed it, and mailed it to Wraggs. Wraggs never signed it and did not reinstate

Traylor’s membership.

       The burden of proving the existence of a valid contract is on the party asserting its

existence. Saluteen-Maschersky v. Countrywide Funding Corp., 105 Wn. App. 846, 851, 22

P.3d 804 (2005). For a contract to exist, there must be mutual assent to the agreement’s essential

terms. Saluteen-Maschersky, 105 Wn. App. at 851. “‘Mutual assent generally takes the form of

an offer and an acceptance.’” Saluteen-Maschersky, 105 Wn. App. at 851 (quoting Pac.

Cascade Corp. v. Nimmer, 25 Wn. App. 552, 556, 608 P.2d 266 (1980)). “An offer consists of a

promise to render a stated performance in exchange for a return promise being given.” Nimmer,

25 Wn. App. at 556.

       “A promise is ‘a manifestation of intention to act or refrain from acting in a specified

way, so made as to justify a promisee in understanding that a commitment has been made.’”

Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 172, 876 P.2d 435 (1994) (quoting RESTATEMENT

(SECOND) OF CONTRACTS § 2(1)). “But an intention to do a thing is not a promise to do it.”

Meissner v. Simpson Timber Co., 69 Wn.2d 949, 957, 421 P.2d 674 (1966). Thus, courts should

take great care not to construe the conduct or declarations of a party as an offer when it is

intended only as preliminary negotiations. Nimmer, 25 Wn. App. at 556

       An agreement to agree is “‘an agreement to do something which requires a further

meeting of the minds of the parties and without which it would not be complete.’” Keystone

Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 175, 94 P.3d 945 (2004) (quoting Sandeman v.



                                                  9
No. 48322-0-II


Sayres, 50 Wn.2d 539, 541-42, 314 P.2d 428 (1957)). Agreements to agree are unenforceable in

Washington. Keystone, 152 Wn.2d at 176.

       Where parties evidence an intent to make a subsequent agreement, that intent is “‘strong

evidence to show that they do not intend the previous negotiations to amount to any proposal or

acceptance.’” Nimmer, 25 Wn.2d at 557 (quoting Coleman v. St. Paul & Tacoma Lumber Co.,

110 Wash. 259, 272, 188 P. 532 (1920)). In other words,

       “[I]f the preliminary agreement is incomplete, it being apparent that the
       determination of certain details is deferred until the [subsequent] writing is made
       out; or if an intention is manifested in any way that legal obligations between the
       parties shall be deferred until the [subsequent] writing is made, the preliminary
       negotiations and agreements do not constitute a contract.”

Plumbing Shop, Inc. v. Pitts, 67 Wn.2d 514, 521, 408 P.2d 382 (1965) (emphasis omitted)

(quoting RESTATEMENT OF CONTRACTS § 26, cmt. a (1932)).

       In Pitts, our Supreme Court considered whether a contract existed between Pitts, a

general contractor, and The Plumbing Shop Inc., a subcontractor. Pitts, 67 Wn.2d at 515. There,

Plumbing Shop submitted a bid to Pitts to complete mechanical work for a government project.

Pitts, 67 Wn.2d at 515. When Pitts believed the project would be awarded to him, Pitts asked

Plumbing Shop to prepare a cost breakdown, and the parties discussed some details over the

telephone and in person. Pitts, 67 Wn.2d at 515-16. Later, Pitts refused to enter into a written

contract with Plumbing Shop. Pitts, 67 Wn.2d at 516. Plumbing Shop sued Pitts for breach of

contract. Pitts, 67 Wn.2d at 516. The court concluded that there was no contract between the

parties. Pitts, 67 Wn.2d at 520. It based this conclusion on the fact that the parties had not

agreed to essential terms such as manner of payment and work progress completion dates. Pitts,

67 Wn.2d at 520. “[I]t can readily be seen that [Plumbing Shop] and [Pitts] must have intended



                                                 10
No. 48322-0-II


to set out those particulars [or essential terms] in the written contract which was to be executed at

a later date.” Pitts, 67 Wn.2d at 520.

         At most it appears that Traylor and Wraggs entered into “an agreement to agree.”

Traylor admits that following their meeting, they “agreed to come up with a memo of

understanding.” CP at 3. In his letter to Wraggs following their meeting, Traylor states

         I, Brother Lonnie R. Traylor will agree To Rescind His Appeal, if and only if, ALL
         Issues and Suspensions surrounding The Current and All Previous Cases be
         Immediately Terminated, and Brother Lonnie R. Traylor be immediately restored
         to All the Rights and Privileges of his Highest Rank and Style – Right Worshipful.

CP at 33 (emphasis added). The agreement’s terms and conditions included statements such as

“Wraggs Sr. Agrees to Drop All Charges and Reinstate Brother Lonnie R. Traylor Immediately

upon the Written Signatures on this Document, if Brother Lonnie R. Traylor agrees to ‘rescind

his Current Appeal to the Grand Lodge.’” CP at 34 (emphasis added). Wraggs never accepted

the agreement. Wraggs never signed the memorandum of understanding and never reinstated

Traylor’s membership. An enforceable contract did not exist, and Traylor’s claim fails.

D.       Suspension

         Traylor’s lawsuit appears to be mainly focused on his dissatisfaction with the process

leading to his suspension from the Grand Lodge. He repeatedly contends that he was not given

due process according to Masonic law and seeks full reinstatement to membership. Because

Grand Lodge substantially complied with the Masonic code and constitution, Traylor’s claim

fails.

         Under the Fourteenth Amendment, due process requires the opportunity to be heard “‘at a

meaningful time and in a meaningful manner.’” Matthews v. Eldridge, 424 U.S. 319, 333, 96 S.

Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187,


                                                 11
No. 48322-0-II


14 L. Ed. 2d 62 (1965)). But due process is protection against state action and its relevance in

disputes between a voluntary private social club and its members is suspect. Garvey v. Seattle

Tennis Club, 60 Wn. App. 930, 935, 808 P.2d 1155 (1991) (holding that constitutional due

process did not apply to a case of termination from a voluntary association because the plaintiff’s

claim was of a private and social nature).

       Generally, courts refrain from interfering in the internal affairs of voluntary associations.

Anderson v. Enterprise Lodge No. 2, 80 Wn. App. 41, 46, 906 P.2d 962 (1995). Courts will not

interfere with the decision to expel a member “except to ascertain whether the proceedings were

regular, in good faith, and not in violation of the laws of the [organization] or the laws of the

state.” Grand Aerie, Fraternal Order of Eagles v. Nat’l Bank of Wash., 13 Wn.2d 131, 135, 124

P.2d 203 (1942)). While questions of whether a voluntary association has followed its bylaws

may sometimes be judicially cognizable, see Anderson, 80 Wn. App. at 47, this procedural

deficiency exception to the general rule against interference typically is applied with

considerable judicial restraint. To require compliance with the minutia of the bylaws would be

to interfere with the association’s internal operations.

       Here, consistent with the Grand Lodge’s disciplinary process, Traylor received a Masonic

trial. After becoming angry during the trial, Traylor walked out. Traylor was permitted to

appeal the trial result to the grievance and appeal committee. Although the record does not

contain details of that committee’s meeting, the minutes from the annual communication show

that the grievance and appeal committee recommended that Traylor’s suspension be upheld, but

reduced by six months.




                                                 12
No. 48322-0-II


       Traylor contends that his suspension was not put before a vote of the Grand Lodge’s

entire membership at the annual communication. However, the record clearly reflects otherwise.

The minutes from the annual communication state:

       PGM Troutt #3 moved, that the suspension modification as approved by the Appeal
       and Grievance Committee and the MWGM actions be sustained on this matter RW
       Roy Price #83 seconded. Motion carried. MWGM Hughes stated that eventually,
       Brother Traylor #102, name would be put back on the website.

CP at 802 (emphasis added). Additionally, Wraggs and Lozan each signed declarations stating

that the Grand Lodge voted to affirm Traylor’s suspension. Traylor provides no evidence that

the minutes do not reflect what actually occurred. It is possible that Traylor argues the minutes

must state “members voted,” “a majority voted to uphold the suspension.” However, Traylor

offers no alternative interpretation of “motion carried.”

       Traylor also contends that he should have been permitted to address the Grand Lodge

members personally and present his evidence to them at the annual communication. However,

Traylor provides no authority or evidence that a suspended Mason is entitled to appear before the

membership during his appeal. On the contrary, Lozan averred that Traylor’s appeal to the

Grand Lodge was handled in the same manner as every other appeal.

       We hold that the evidence here demonstrates Grand Lodge’s substantial compliance with

Masonic disciplinary procedures. Given our application of judicial restraint when interpreting a

voluntary association’s procedures and bylaws, we reject Traylor’s claim.

E.     Harassment

       Traylor also appears to argue that he was subjected to harassment by Grand Lodge.

However, he provides no legal or factual authority to support his contention. RAP 10.3(a)(6)

requires an appellant’s brief to include an argument citing legal authority and the record. Where


                                                 13
No. 48322-0-II


an appellant fails to cite authority, or where it gives passing treatment to an issue, we do not

consider the argument. See Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520

(2013). Because Traylor fails to discuss the legal basis for his claim and gives the issue merely

passing treatment, we do not consider it.

F.     Defamation

       Traylor also appears to argue that he was defamed by Grand Lodge. However, Traylor

does not allege any facts to support a prima facie case of defamation and thus cannot survive

summary judgment. Consequently, we reject his claim.

       Washington courts recognize that summary judgment plays a particularly important role

in defamation cases. This is because “‘[s]erious problems regarding the exercise of free speech

and free press guaranteed by the First Amendment are raised if unwarranted lawsuits are allowed

to proceed to trial. The chilling effect of the pendency of such litigation can itself be sufficient

to curtail the exercise of these freedoms.’” Mark v. Seattle Times, 96 Wn.2d 473, 485, 635 P.2d

1081 (1981) (quoting Tait v. KING Broad. Co., 1 Wn. App. 250, 255, 460 P.2d 307 (1969)).

       Accordingly, to survive a defense motion for summary judgment, the plaintiff has the

burden of establishing facts that would raise a genuine issue of fact for the jury as to each

element. Mohr v. Grant, 153 Wn.2d 812, 822, 108 P.3d 768 (2005). The elements a plaintiff

must establish in a defamation case are falsity, an unprivileged communication, fault, and

damages. Mohr, 153 Wn.2d at 822. Traylor does not make a prima facie case supporting the

elements of defamation, and thus his claim fails.




                                                  14
No. 48322-0-II


                                        ATTORNEY FEES

       Grand Lodge requests attorney fees under RAP 18.9, characterizing Traylor’s appeal as

frivolous. RAP 18.9(a) allows us to order a party who files a frivolous appeal to pay damages.

“An appeal is frivolous if it presents no debatable issues on which reasonable minds could differ

and is so lacking in merit that there is no possibility of reversal.” Eagle Sys. Inc. v. Emp’t Sec.

Dep’t, 181 Wn. App. 455, 462, 326 P.3d 764 (2014).

       Because Traylor’s appeal presented debatable issues upon which reasonable minds might

differ on at least one claim, his appeal was not frivolous. Consequently, we affirm the summary

judgment dismissal of his claim but do not award attorney fees to Grand Lodge.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Maxa, A.C.J.




 Sutton, J.




                                                 15
