                                                                                                                              e(? FAPPEALD
                                                                                                                        1R;

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                                                   al VI ( i10 q II
                                                                                                                 20 i 5 JUL -
                                                      DIVISION II                                                               7 AINS. 4
                                                                                                                  S

ANTHONY DAVIS,                                                                              No. 46334 -2 -II
                                                                                                                 I

                                          Appellant,


          V.



 TACOMA SCHOOL DISTRICT,                                            I             UNPUBLISHED OPINION




         MELNICK, J. —             Anthony Davis appeals the trial court' s orders denying his partial summary

judgment       motion    and       granting the Tacoma School District'                s(   District)   motion for summary

judgment dismissal            of   his lawsuit   against   the District for fraud and          unpaid wages.   Because the


District complied with the notice provisions of RCW 28A.405. 210 in nonrenewing Davis' s

employment contract for the 2013- 2014 contract term, the District did not owe Davis wages for

any portion of the 2013- 2014 contract term notwithstanding that his sufficient cause hearing was
still pending. In addition, Davis failed to present a prima facie case that the District defrauded him
about   his    pay   status   pending    the   sufficient   cause       hearing. Therefore, we hold that the trial court

did not err by denying Davis' s motion' for partial summary judgment and granting the District' s
motion for summary judgment on all claims. Accordingly, we affirm.

                                                             FACTS


         The material facts in this case are not in dispute. The District employed Davis as a teacher

beginning July        2007.        Davis' s employment with the District consisted of a series of renewable


one- year contracts.          In May 2012, Davis signed a contract for the upcoming 2012- 2013 school

year, which ran        through August 29, 2013.             Davis taught       until   March 21, 2013, when the District
46334 -2 -II




placed him on administrative leave pending an investigation into his alleged misconduct. During

this time, Davis received his normal salary.

        In a letter dated May 7, 2013, the District notified Davis of the allegations against himl and

advised   him that the District       was   considering terminating his           employment.       Davis and his union


representative attended a May 14 meeting where Davis had the opportunity to present information

he   wanted    the District to     consider   before making        a   disciplinary   determination.   On May 15, the

District notified Davis in writing that it had concluded its investigation, the allegations of

misconduct      against   him      were   substantiated,      and      probable   cause   existed   to " terminate [ his]



employment."        Clerk'   s   Papers ( CP)   at   94.   The letter also advised Davis that he could request a


hearing to appeal the District' s determination. The letter referred Davis to RCW 28A.405. 300 for
more information about his appeal rights. Davis timely requested a hearing to determine whether

sufficient cause existed         for his " discharge." CP at 58.


          On June 14, the District notified Davis in writing that the school board had approved

nonrenewal of his contract and that the last day of his employment with the District would be

August 29, 2013.


          On July 22, the District advised Davis, in writing, that he continued to be on paid
administrative leave and that he would remain on administrative leave pay status pending his

appeal. But, on August 29, the end of the employment contract period, the District stopped paying

Davis his salary.



 1 The allegations against Davis included that he restrained a student in an inappropriate mamzer;
directed one student to change the clothing of another student; made a threat to cause harm to
 colleagues; and created a hostile, uncivil, and unsafe work environment for students and the
 subordinates assigned to work with him.        Information learned during the course of the initial
 investigation led the District to expand its investigation to inquire about whether Davis truthfully
 answered the District' s applicant disclosure forms and employment history when he applied for a
 teaching position in the District.


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        In September, Davis moved for a continuance of the sufficient cause hearing. The District

opposed the continuance, arguing that it would unduly prejudice the District, which had already

suffered financial hardship because it kept Davis on paid administrative leave pending resolution

of his appeal. In support, the District submitted a declaration from its attorney that Davis had been

on paid administrative leave status since notifying the District of his intent to appeal in May. The

attorney' s representation was incorrect because the District had stopped paying Davis at the end
of   August.    Before the hearing officer ruled on Davis' s motion for a continuance, the District

acknowledged         its   misstatement       about    Davis'   s   pay   status.    The hearing officer granted Davis' s

request for a continuance.


         In   mid-   January        2014, the     sufficient cause      hearing     occurred.   On January 23, the hearing

officer issued his decision. He held that the District proved sufficient causes to " discharge" Davis.

Davis appealed the. hearing officer' s decision to the superior court.2
         A few months before the January 2014 hearing, Davis served the District with a claim for
damages based on nonpayment of wages. Then on December 27, 2013, Davis filed this lawsuit in

superior court alleging that the District violated the labor code, breached its contract with him, and
committed       fraud.      Davis moved for partial summary judgment, arguing that he was entitled to

summary judgment on the liability issues but material factual disputes remained regarding
damages.       The District opposed Davis' s motion and filed a cross- motion for summary judgment

dismissal      of all      Davis'   s   claims.    The trial court denied Davis' s motion for partial summary

judgment and granted summary judgment in the District' s favor. Davis appeals.




2 The outcome of this appeal is not before us here.


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46334 -2 -II



                                                   ANALYSIS


         Davis argues that the trial court erred by denying his motion for partial summary judgment

and by granting the District' s competing motion for summary judgment. Because they turn on the
same   issue,   we   treat the two arguments      as one.       The primary issue is whether the District was

required to continue paying Davis wages between the end of the 2012-2013 contract term and the

                                                                        the     District'       discharge decision.     The
following January       when     the   hearing   officer   upheld                           s




secondary issue is whether the District' s representations about Davis' s pay status constituted fraud.
We hold that the trial court did not err by granting the District' s summary judgment motion.

I.       STANDARD OF REVIEW


         We review a trial court' s summary judgment determinations de novo. Dean v. Fishing Co.
                                405, 300 P. 3d 815 ( 2013).                          We consider all facts and their
of Alaska, Inc., 177 Wn.2d 399,


reasonable inferences in the light most favorable to the nonmoving party. Loeffelholz v. Univ. of

Wash., 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012).                  Summary judgment is proper when " there is

no genuine issue as to any material fact" and " the moving party is entitled to ajudgment as a matter
of law." CR 56( c). " A material fact is          one    that   affects   the   outcome of        the litigation."   Owen v.


Burlington N. Santa Fe R. R. Co., 153 Wn. 2d 780, 789, 108 P. 3d 1220 ( 2005). "[                              A] complete


failure of proof concerning an essential element of the nonmoving party' s case necessarily renders

all other   facts immaterial."    Celotex Corp. v. Catrett, 477 U. S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.

2d 265 ( 1986).      The process of determining the applicable law and applying it to undisputed facts

is   a question of   law that   we review   de   novo.    Erwin    v.   Cotter Health Ctrs., 161 Wn.2d 676, 687,


 167 P. 3d 1112 ( 2007).




                                                            M
46334 -2 -II



             We review the superior court's interpretation of a statute de novo. Dep' t ofEcology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002).                   If a statute' s meaning is plain on its

face,   we    follow that    plain   meaning. Campbell & Gwinn, LLC, 146 Wn.2d at 9- 10. A statute' s


plain meaning is discerned from the language' s ordinary meaning, the statute's context, related

provisions, and      the statutory       scheme as a whole.   Udall   v.   T.D. Escrow Servs., Inc., 159 Wn.2d


903, 909, 154 P. 3d 882 ( 2007).

II.          UNPAID WAGE CLAIMS


             A.      Overview of Statutory Scheme

             A statutory        scheme    governs   the   employment,      discharge,   and reduction in rank of


certificated      teachers      and administrators.   Barnes v. Seattle Sch. Dist. No. 1, 88 Wn.2d 483, 485,


563 P. 2d 199 ( 1977).           RCW 28A.405. 210 limits employment contracts for certificated employees

to a one- year term. But, it provides that the one- year contracts are automatically renewed for the

next year unless certain conditions are met. RCW 28A.405. 210. This continuing contract statute

 is similar to tenure laws" because it " affords reemployment rights to all covered employees."

Moldt v. Tacoma Sch. Dist. No. 10, 103 Wn. App. 472, 482, 12 P. 3d 1042 ( 2000).

             A school district may terminate the employment of a certificated employee by discharge 3
                            4                                                                   When a decision to
and     by   nonrenewal.        Discharge   operates on an employee' s current contract. "




discharge is made, the district may notify the employee at any time during the term of the contract




3 RCW 28A.405. 300.

4 RCW 28A.405. 210.




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46334 -2 -II



                                                      the   hearing."'    Petroni, 127 Wn.     App.     at   728.   In contrast, a
and need       pay the teacher only          until




nonrenewal operates prospectively by giving notice, before a specific date, that the employee' s

contract will not        be   renewed       for the   next contract      term.    See Barnes, 88 Wn.2d         at   486.    When a


nonrenewal decision is made, the district must pay the employee until the end of the teacher' s pay

period under       the   contract.         Petroni, 127 Wn.        App.    at   728.   If a school district fails to give an


employee timely notice of nonrenewal, including the probable cause or causes for the nonrenewal,

then the employee is " conclusively presumed to have been reemployed by the district for the next

ensuing [      one- year]   term."    RCW 28A.405. 210.


          An employee who receives a probable cause notice for either nonrenewal or discharge has

a right   to   request a sufficient cause            hearing.     RCW 28A.405. 310.          However, the hearing serves a

slightly different function in each of the two situations. In the discharge scenario, once the district
gives an employee notice of probable cause for discharge and the employee requests a hearing, the

district cannot discharge or otherwise. adversely affect the employee' s contract status until cause

                                                       the                 the    hearing.   RCW 28A. 405. 300.            Thus, the
is   established    by   a preponderance of                  evidence at




hearing    functions        as a   pre -decision      review.     On the other hand, a school district' s notice to an


employee that probable cause exists for nonrenewal cuts off the employee' s reemployment right,

                               functions      as a post -decision review.          See Schlosser   v.   Bethel Sch. Dist., 183
and   thus, the    hearing

Wn.    App.      280, 288, 333 P. 3d 475, 479 ( 2014), review denied, 182 Wn.2d 1004, 342 P. 3d 327


 2015); see also RCW 28A.405. 210.




5 The Petroni court' s reference to the district having to pay a teacher only until the hearing is
merely a reflection that hearings on probable cause for discharge usually occur before the end of
the teacher'      s current contract         term.     See RCW 28A. 405. 310 ( 4)-( 6) (        providing. for the statutory
hearing to occur within approximately 30 days of the employee' s notice of appeal absent, a
continuance request           from the       employee).        Therefore, the district has to pay the teacher only until
the   hearing     rather    than   until   the end of the      contract   term.    127 Wn. App. at -728.


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46334 -2 -II




        An employee may appeal a discharge, nonrenewal, or other adverse change in contract

status to the superior court. RCW 28A.405. 320-. 380. If a reviewing court enters judgment for the

employee, the court may order the school board to reinstate or issue a new' contract to the

employee, or award damages for loss of compensation. RCW 28A.405. 350.

        B.        Nature of the Dispute


        Davis argues that the District was required to pay him during the approximately five-month

period between the end of his 2012- 2013 contract term and the hearing officer' s determination that

probable cause existed     to discharge   his   contract.   The crux of the parties' dispute is whether the


District complied with the notice provisions of RCW 28A.405. 210 when it nonrenewed Davis' s

contract.




        We focus on the nonrenewal process because the discharge statute, RCW 28A.405. 300,

protects an employee from discharge or adverse action only for the duration of his or her current

contract.      In Benson v. Bellevue School District No. 405, we held that where a school district

wrongfully took adverse employment action against a principal' s contract by demoting him to a
teacher position without a hearing, the district was merely required to pay the employee his

principal' s salary through the end of the contract period in which he was demoted because the
district had properly    nonrenewed   his   principal contract    for the ensuing   year.   41 Wn. App. 730,

736- 38, 707 P. 2d 137 ( 1985).


         Here, as in Benson, 41 Wn. App. at 737- 38, if the District complied with the statutory

process for nonrenewing Davis' s contract at the end of the 2012- 2013 contract term, Davis had no
right to wages past the end of that contract term. On the other hand, if the District did not comply

with the nonrenewal statute, Davis had a right to demand issuance of a new contract for the 2013-

2014   contract   term. See RCW 28A.405. 210.         If Davis had successfully demanded anew contract




                                                        7
46334 -2 -II




for the 2013- 2014 contract term, the District would not have been allowed to take adverse

employment action against him until a hearing officer determined that sufficient cause existed for

discharge, which means that the District would have been required to pay Davis wages Lentil the

hearing officer' s decision.6 See RCW 28A.405. 300.

         Accordingly, the parties' disagreement about whether the District was required to pay

Davis past the end of his 2012- 2013 contract term depends on whether the District complied with

the nonrenewal statute.


         C.        The District Complied with RCW 28A.405. 210

         Davis argues that the District did not comply with the nonrenewal statute. He argues that

the District could have given him notice of nonrenewal at the same time that it notified him of

probable cause     for discharge, but it failed to do     so.    Specifically, he argues that he did not receive

         notice of   the District' s decision to    nonrenew       his   contract and     the   reasons   therefor.   We
timely

disagree.      The District   provided   Davis   with   both    a notice of     discharge   and of nonrenewal.        Its



May 15 and June 14 letters to Davis satisfy the plain meaning of the notice provisions of RCW
28A.405. 210.


            The continuing contract statute has as one of its central purposes the elimination of

uncertainty in the    employment plans of        both the teacher        and   the district."   Peters v. South Kitsap

Sch. Dist. No. 402, 8 Wn.        App.    809, 815, 509 P. 2d 67 ( 1973).           If a district plans to nonrenew a


certificated employee' s contract for the next ensuing term, it must give the employee written notice

specifying the cause or causes for nonrenewal on or before May 15 preceding the commencement


6 Davis concedes that because of his discharge for cause, the month of January would be the last
month the District would have to pay him.

7 The District argues that every notice of discharge automatically involves an implicit notice of
nonrenewal. We need not decide this issue and choose not to.


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46334 -2 -II




of such term. RCW 28A.405. 210. If the omnibus appropriations act has not passed the legislature

by May     15, then   notification shall   be   not   later than June 15. RCW 28A.405. 210. If such notice is


not given, the employee shall be conclusively presumed to have been reemployed for the next

ensuing term. RCW 28A.405. 210.

          In 2013, the omnibus appropriations act had not passed the legislature by May 15;

therefore, the District had until June 15 to notify Davis that his employment contract would'be

nonrenewed for the 2013- 2014 contract term and the reasons therefor. Third Engrossed Substitute

S. B. 5034, 63d     Leg.,   2d Spec. Sess. ( Wash. 2013); see RCW 28A.405. 210.


          Here, the District' s May 15 letter informed Davis that the District intended to terminate his
employment and it detailed the misconduct that formed the basis for the District' s probable cause

determination. The letter did not specify whether the termination was by discharge or nonrenewal,

but the last paragraph of the letter referred Davis to RCW 28A.405. 300, the statute pertaining to

discharge. The June 14 letter confirmed that the school board had approved nonrenewal of Davis' s

contract.      Thus, by June 14, Davis had received written notice that the District would not renew
his contract and the probable cause for his termination. Although the June 14 letter did not specify

the probable cause or causes for nonrenewal, in this case the basis for the nonrenewal.(misconduct)

can clearly be inferred from the notice of termination that Davis received on May 15. 8
          The respective statutory provisions governing nonrenewal and discharge both require

districts to give written notice to effected employees specifying the probable cause or causes for



8                                                                                   for
    Davis does     not   argue   that the District lacked        probable   cause      only that the
                                                                                          nonrenewal—


District failed to give him notice of it. In fact, Davis acknowledges the allegations of misconduct
against him could form the basis for probable cause for nonrenewal as well as discharge. See Br.
of Appellant at 11 (" The District based its termination of Mr. Davis on alleged misconduct under

RCW 28A.405. 300. The District could have nonrenewed Mr. Davis at the same time if it so chose.
It did   not....   The District chose to discharge Mr. Davis, not nonrenew him.").


                                                             0
46334 -2 -II




such action.    RCW 28A.405. 210, . 300.            But nothing in the statutes' text or the statutory scheme

requires    districts to separately       state   notices   of nonrenewal     and   discharge.   In fact, we have


previously recognized that notice of probable, cause for an adverse employment action, e. g.

discharge or demotion, could also serve as notice of nonrenewal if the employee knew that the

district did   not   intend to   renew    the   employee' s contract:     In Benson, we rejected an employee' s


argument that his principal contract had been automatically renewed because the school district' s

attempt    to demote him    was     invalid. 41 Wn.     App.   at   737- 38. Despite the lack of a separate notice


of nonrenewal, we held that the demotion procedure amounted to notification of nonrenewal

because the earlier notice of probable cause set out the intended change in the contract status, the

employee received notice of the demotion prior to the statutory deadline, and he knew that the

district intended to nonrenew his principal contract. Benson, 41 Wn. App. at 737- 38.

           Similar to the employee in Benson, 41 Wn. App. at 737- 38, the District notified Davis that

his contract would be nonrenewed and it timely provided him the bases for the nonrenewal. The

notice of probable cause that Davis received on May 15 notified him that the District intended to

terminate his employment with the District. Although the discharge could not take effect until a

hearing examiner determined that sufficient cause existed, Davis knew that the District did not
intend to renew his contract for the next year. Further, the June 14 letter confirmed that the school

board had      approved   the decision to         nonrenew   Davis'   s contract.   Under these circumstances, the


notice for termination supplied the bases for nonrenewal of Davis' s contract.

           We hold that the District complied with RCW 28A.405. 210 because its May 15 and June

 14 letters provided Davis timely notice of its decision to nonrenew his contract for the 2013- 2014

contract    term and the         causes   for the   nonrenewal.       Because the District followed the proper




                                                             10
46334 -2 -II




procedures for nonrenewing Davis' s contract, the District does not owe him wages for any period

after the expiration of his 2012- 2013 contract term.


         D.        Davis Did Not Comply with the Statutory Appeal Procedure

          Furthermore, Davis did not follow statutory procedures for appealing the District' s alleged

noncompliance with the nonrenewal statute. Davis filed an original lawsuit for back wages and

damages for a period of time that he was not under contract9 and did not work. Although Davis.

frames this case as a breach of contract action to collect wages withheld by the District, this action

is   a challenge   to the District'   s nonrenewal of    his   contract.    Rather than following the statutory

appeal   process,    Davis filed      a   lawsuit.   See RCW 28A. 405. 310 - . 380; RCW 28A.645. 010.


Although we question whether Davis may avoid the statutory appeal procedure, the District did

not raise this issue in its defense of this lawsuit. Because we hold that the District did comply with

the provisions of the nonrenewal statute, we do not address this issue. .

          E. Judicial Estoppel


         Next, Davis argues that the District is judicially estopped from asserting that the District

does not owe him wages' for the period after the expiration of his 2012- 2013 contract term. Davis

bases his estoppel argument on the District' s opposition to his motion for a continuance of the

sufficient cause hearing where the District erroneously asserted that a continuance would

financially prejudice the District because Davis was still on paid administrative leave. We reject
Davis' s estoppel argument because the District corrected its previous erroneous assertion that




9 There is no question that the District did not renew Davis' s contract. The District' s school board
confirmed Davis' s nonrenewal, and the District sent Davis confirmation of that decision and
notified   him that his   employment would end on          the last   day   of   his 2012- 2013   contract   term.   In

addition, Davis did not sign a contract for the 2013- 2014 year and the District stopped paying him
at the expiration of his 2012- 2013 contract term.


                                                          11
46334 -2 -II




Davis was still on paid administrative leave, and therefore, the previous tribunal could not have

relied on it.


         Judicial estoppel is an equitable doctrine that precludes a party from asserting one position

in a court proceeding and later seeking an advantage by taking a clearly inconsistent position."

Bartley -Williams v. Kendall,     134 Wn. App. 95, 98, 138 P. 3d 1103 ( 2006). Courts consider whether


the party took clearly inconsistent positions, whether the earlier position was accepted by the court,
and whether assertion of the inconsistent position results in an unfair advantage or detriment to the

opposing party. Arkison     v.   Ethan Allen, Inc., 160 Wn.2d 535, 538- 39, 160 P. 3d 13 ( 2007).


        The District made an erroneous representation in its briefing to the hearing officer but it

discovered that   mistake      and    corrected     it.    The District acknowledged its misstatement about


Davis' s pay status. Therefore, the hearing officer could not have relied on an assertion the District
withdrew before   the   hearing   officer ruled.          Accordingly, we hold that the District is not judicially

estopped from asserting that it does not owe Davis wages after the expiration of his 2012- 2013
contract term.


         F.      Wages Due Upon Termination                  of   Employment— RCW 49. 48. 010



         Finally, Davis argues that the District violated RCW 49.48. 010 by wrongly withholding
his wages due for the period between the end of his 2012- 2013 contract term and the outcome of

his sufficient cause hearing on January 23, 2014. We disagree.

         RCW 49. 48. 010       provides: "   When any employee shall cease to work for an employer,

whether by discharge or by voluntary withdrawal, the wages due him or her on account of his or
her   employment shall    be   paid   to him   or   her    at   the end   of   the   established   pay   period."   Under the



plain meaning of RCW 49.48. 010 a claim requires first a finding that there were, in fact, wages
 due. The determination of whether Davis is entitled to wages is at the heart of the parties' dispute,



                                                                12
46334 -2 -II



but    we   have   resolved   that issue in favor     of   the   District. Because the District did not owe Davis


wages past the end of his 2012- 2013 contract term, his claim under RCW 49. 48. 010 fails.

            G.       Conclusion


            We hold that the District does not owe Davis wages for the 2013- 2014 contract term, the

District is not judicially estopped from denying that it owed Davis wages, and the District did not

withhold Davis' s wages in violation of RCW 49. 48. 010. Accordingly, we hold that the trial court

did not err by denying Davis' s partial summary judgment motion and granting the District' s

summary judgment motion on Davis' s unpaid wages/ breach of contract claims.

111.        FRAUD CLAIM


            Davis also claims that he is entitled to damages because the District defrauded him by

promising that he would be paid wages pending his sufficient cause hearing. Davis relies on two
representations        from the District,         a letter dated July 22 stating that he would remain on

administrative leave pay status pending his appeal, 10 and the District' s briefing in opposition to his
motion for a continuance. of the hearing in which the District argued that a continuance would be

unduly prejudicial because Davis was still on paid leave status. Neither of these representations
constitutes fraud.




10 The July 22 letter was a status update stating that Davis continued to be on paid administrative
leave and that he would remain on administrative leave pay status pending his appeal. The District
claims that the July 22 status update was nothing more than a boilerplate letter sent by the Human
Resources Department to comply with the collective bargaining agreement that required the
District to provide employees with status updates of their cases twice a month. The District further
claims that the representative who sent the letter was unaware of the parties' difficulty in choosing
a hearing officer and therefore, she had not considered that the sufficient cause hearing may occur
after   the      conclusion of   Davis'   s   2012- 2013   contract   term.   The District provided a declaration to
that effect from the employee who signed the July 22 letter.



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46334 -2 -II




         To. recover for fraud,            a   party     must prove: (      1)   a representation of an           existing fact; ( 2) its


materiality; ( 3) its      falsity; ( 4)   the    speaker' s     knowledge        of   its   falsity; ( 5) his intent that it should be

acted on   by    the   person      to   whom     it is   made; (   6) ignorance of its falsity on the part of the person to

whom     it is   made; (   7) the latter' s    reliance on         the truth     of   the    representation; (   8) his right to rely on

it; and ( 9) his consequent damage. Williams v. Joslin, 65 Wn.2d 696, 697, 399 P. 2d 308 ( 1965)..

          The first alleged fraudulent misrepresentation is that Davis was and would remain on paid


administrative pay status pending his appeal. The first part, that Davis was on paid administrative

      status, was      true   at   the time the          July   22 letter   was       sent.    The second part, that Davis would
pay


remain on paid administrative pay status pending his appeal, was a statement about the future, not

an    existing fact.        Davis' s fraud claim based on the first misrepresentation does not survive

summary judgment because Davis cannot show that the District made a knowingly false
representation of an existing fact. Moreover, Davis had no right to rely on the ambiguous statement

about his future pay status because he had already received a letter from the District notifying him
that the school board had approved nonrenewal of his contract and that his last day of employment

with the District would be August 29.

          Nor can Davis' s fraud claim survive based on the second alleged fraudulent

misrepresentation—            the District' s erroneous statement made in opposition to Davis' s motion for

continuance of the sufficient cause hearing that Davis was still on administrative leave pay status.

Not only did Davis Imow that the representation was false because he was not getting paid, but the
District corrected its misstatement. Because Davis did not meet his burden 'to show a prima facie

case of fraud, the trial court did not err by denying Davis' s motion for partial summary judgment

and by granting the District' s motion for summary judgment dismissal of Davis' s fraud claim.




                                                                       14
46334 -2 -II




        We affirm.


        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.




                                                             Melnick, J.     J

We concur:




    0Wor'      Zi"
               sckJ.




         Johanson, C. J.




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