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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

CHUN CHA CHI, an individual,                                     No.  41606-9-II

                             Appellant,

       v.

MAXCARE OF WASHINGTON, INC.,                  a            UNPUBLISHED OPINION
Washington corporation,

                             Respondent.

       Johanson, J.  --  Chun Cha Chi appeals the trial court's summary judgment dismissal of her

breach of contract claim against MaxCARE of Washington, Inc.      She argues that the trial court 

erred when it determined that the claim was barred by the statute of limitations that applies to 

oral, rather than written, contracts.  Because Chi failed to establish a question of fact as to 

whether there was a written contract, we affirm.

                                            FACTS

       In May 2005, there was a fire in Chi's home.  Allstate, Chi's insurance company, had 

MaxCARE contact Chi regarding the cleaning and storage of her fire damaged property.

       On June 1, 2005, Chi signed a "Service Authorization/Contract" (the authorization form)  

No.  41606-9-II

with MaxCARE.  See  Clerk's Papers (CP) at 18.  The  authorization form was a one-page

document containing (1) Chi's address; (2) Chi's signed authorization allowing MaxCARE "to 

proceed with work at the above listed job location"; (3) an unsigned authorization that would 

have allowed Chi's insurance company to pay MaxCARE "directly for the repairs listed on the 

repair estimate"; and (4) a required notice/disclosure statement regarding licensing, registration, 

and bonding information.  CP at 29.    The authorization form did not specify the type of work 

MaxCARE was to perform, how MaxCARE was to perform the work, the scope of the work, 

when MaxCARE was to perform the work, or the cost of the work.

       Four years later, on June 1, 2009, Chi sued MaxCARE for breach of an "implied contract"

and unfair or deceptive business practices under chapter 19.86 RCW.  CP at 7.  Chi alleged that 

(1) she never gave MaxCARE any "'work authorization'" detailing the work MaxCARE was to 

perform, the compensation, or how the work was to be done; (2) MaxCARE advised her that she 

"was to rely upon [MaxCARE's] direction regarding storing, cleaning, and repairing items 

damaged in her home by the fire"; (3) MaxCARE never informed her of "the full and actual scope 

of the work intended to be done"; and (4) MaxCARE misrepresented to Chi that it was acting 

under Allstate's direction and that she was required to "acquiesce to their actions" under the 

terms of her insurance policy.  CP at 3.  She further alleged that MaxCARE removed personal 

property from her home without her authorization, failed to prepare an inventory of all the items it 

was removing from her home, did not allow her to review any inventories before they removed 

the property, took possession of jewelry valued at more than $100,000 without listing these items 

on an inventory, failed to return this jewelry, asserted that the missing jewelry was "lost," and 

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No.  41606-9-II

never compensated her for the missing  jewelry.  CP at 4.        She asserted that MaxCARE 

misrepresented its authority under the insurance policy, failed to provide safeguards to ensure that 

employees did not lose or steal her property, performed unnecessary and/or incomplete work, and 

then held her property until MaxCARE was paid for the services it provided.  Throughout her 

original pleadings, Chi repeatedly asserted that the authorization form was not a contract and that 

she at no time entered "into any type of written or oral contractual relationship with 

[MaxCARE]." CP at 3.

       MaxCARE moved for partial summary judgment on the breach of contract claim.  Noting 

Chi's repeated assertions that she never entered into a contract with MaxCARE and asserting that 

the authorization form was not a contract, MaxCARE argued that her breach of contract claim 

was time barred under the three year statute of limitations for implied contract claims.  

       In response, Chi (1) notified the trial court that she intended to file an amended complaint 

claiming breach of a "written" contract, which would render the summary judgment motion moot; 

and (2) claimed that recent deposition testimony in an unrelated  matter would establish that 

MaxCARE had asserted in other actions that it considered the authorization form to be a written 

contract for services.  CP at 31. In support, Chi attached a copy of a complaint MaxCARE had 

filed in a separate King County action in which MaxCARE alleged breach of contract against 

another individual.  She also stated that as soon as it became available, she intended to submit a 

copy of deposition testimony in which a MaxCARE representative stated that the authorization

form was a contract between MaxCARE and the defendant in MaxCARE's King County case.

       MaxCARE replied that the authorization form did not establish that there was a written 

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No.  41606-9-II

contract.  It also argued that the King County case was not relevant because MaxCARE had not 

asserted that the authorization form was a written contract but, rather, that the authorization form 

and additional conversations and electronic correspondence created a contract.  MaxCARE also 

noted that it had filed its King County lawsuit within three years of the alleged breach of contract.

       In support of its argument, MaxCARE supplied a transcript of the deposition Chi had 

referred to in her briefing.  In the transcript, MaxCARE employee Robin A. Hamilton stated that 

the basis of MaxCARE's contract claim was "the service authorization and the conversations that 

transpired and e-mails that transpired after the authorization."   CP at 94 (emphasis added).  

Hamilton further characterized the agreement between MaxCARE and the other party as the 

written  "service authorization and then verbal."     CP at 95 (emphasis added).  And she 

emphasized that the agreement in that case was reached after on-site discussions between the 

other party, herself, an insurance adjuster, and another MaxCARE employee.

       Chi also filed a motion to amend her complaint to "include a claim for breach of written 

contract now that Defendant [MaxCARE] has produced an [sic] Service Authorization/Contract."  

CP at 50.  The trial court granted Chi's motion to amend the complaint over MaxCARE's 

objection.

       In her amended complaint, Chi asserted that the authorization form created a "contractual 

relationship." CP at 112.  Although she admitted that the authorization form did not "detail what 

work was to be done, rate of compensation for such work, or the manner in which the work was 

to be done," she asserted that her insurance company and MaxCARE told her that "she was to 

rely on [MaxCARE]'s their     [sic] direction regarding storing, cleaning, and repairing items 

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No.  41606-9-II

damaged in her home by the fire."   CP at 112.   She also alleged that "[MaxCARE] deems the 

Service Authorization/Contract to be a written contract upon which [MaxCARE] performs work 

at the fire damaged residence" and that a MaxCARE representative had so testified in the other 

matter. CP at 115. Chi further asserted that "[t]he terms of the contract were, at a minimum, for 

the removal, cleaning, safe storage, and return of property to Ms. Chi." CP at 118.

       Chi then renewed her opposition to MaxCARE's partial summary judgment motion.  This 

time, she argued that she had established that her contract claim was based on a written contract, 

so the three-year statute of limitations did not apply. MaxCARE continued to assert that there 

was no written contract as a matter of law and that the statute of limitations had expired. The trial 

court granted MaxCARE's motion for partial summary judgment, dismissing  Chi's breach of 

contract claim.  Later, the  trial court granted the parties' stipulated order of dismissal of the 

remaining claims without prejudice.  Chi appeals the trial court's order granting partial summary 

judgment and dismissing her contract claim.

                                          ANALYSIS

       Chi argues that the trial court erred when it concluded that there was no written contract 

and applied the three-year statute of limitations rather than the six-year statute of limitations to 

her contract claim.  We disagree.

       We review summary judgment orders by engaging in the same inquiry as the trial court.  

Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d 495 (2007).  Summary judgment is appropriate

when there is no genuine issue of material fact and the moving party is entitled to a judgment as a 

matter of law.  CR 56(c).  We consider all facts and reasonable inferences from them in the light 

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No.  41606-9-II

most favorable to the nonmoving party.  Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 

693, 169 P.3d 14 (2007).  Our review is limited to the record before the trial court at the time it 

ruled on the motion for summary judgment.  RAP 9.12; Wash. Fed'n of State Emps., Council 28 

v. Office of Fin. Mgmt., 121 Wn.2d 152, 157, 849 P.2d 1201 (1993); Green v. Normandy Park, 

137 Wn. App. 665, 677-78, 151 P.3d 1038 (2007), review denied, 163 Wn.2d 1003 (2008).

              RCW 4.16.040(1)[1] provides that an "action upon a contract in writing, or
       liability express or implied arising out of a written agreement" must commence 
       within six years.  RCW 4.16.080(3)[2] provides that a nonwritten contract-based
       action must commence within three years.
              " 'The burden of proving a contract, whether express or implied, is on the 
       party asserting it, and he must prove each essential fact, including the existence of 
       a mutual intention.'"  [Bogle & Gates, PLLC v. Holly Mountain Res., 108 Wn. 
       App. 557, 560, 32 P.3d 1002 (2001) (quoting Cahn v. Foster & Marshall, Inc., 33 
       Wn. App. 838, 840, 658 P.2d 42, review denied, 99 Wn.2d 1012 (1983)).]  "The 
       essential elements of a contract are 'the subject matter of the contract, the parties, 
       the promise, the terms and conditions, and (in some but not all jurisdictions) the 
       price or consideration.' " [Holly Mountain Res., 108 Wn. App. at 561 (quoting 
       DePhillips v. Zolt Constr. Co. Inc., 136 Wn.2d 26, 31, 959 P.2d 1104 (1998)).] 
       " 'A written agreement for purposes of the 6-year statute of limitations must 
       contain all the essential elements of the contract, and if resort to parol evidence is 
       necessary to establish any essential element, then the contract is partly oral and 
       the 3-year statute of limitations applies.' " [Holly Mountain Res., 108 Wn. App. 
       at 562 (quoting  Cahn, 33 Wn. App. at 840 -- 41).][3]        "Ex parte writings are 
       sufficient to bring a contract within the 6-year statute of limitations if the writing 
       contains all of the elements of a contract." [Kloss v. Honeywell, Inc., 77 Wn. App. 
       294, 298, 890 P.2d 480 (1995) (written employment contract found where, 
       although ex parte memoranda lacked an express compensation term, reasonable 

1 The legislature amended RCW 4.16.040(2) in 2007.  Laws of 2007, ch. 124, § 1.  The 2007 
amendment is not relevant to this appeal.

2 The legislature amended RCW 4.16.080 in 2011.  Laws of 2011, ch. 336, § 83.  This 
amendment merely inserted gender neutral language and is not relevant to this appeal.

3 See also DePhillips, 136 Wn.2d at 31 ("If parol evidence is necessary to establish any material 
element [of the contract], then the contract is partly oral and the three-year statute of limitations 
in RCW 4.16.080(3) applies.").

                                               6 

No.  41606-9-II

       compensation term was implicit in the writings).]

Bogle &Gates, PLLC v. Zapel, 121 Wn. App. 444, 448-49, 90 P.3d 703 (2004).

       Neither the authorization form's reference to "work at the above listed job location," nor 

anything else on the authorization form, describes the subject matter of the contract, the nature or 

scope of the work to be performed, or the agreed to consideration for the work.  CP at 29.  Thus, 

the authorization form alone is clearly insufficient to qualify as a written agreement under RCW 

4.16.040(1).  Nor did Chi present any evidence in support of her opposition to the summary 

judgment motion suggesting  that there were other writings that could be combined with the 

agreement to establish a written agreement under RCW 4.16.040(1).4     At best, she alleged there 

were oral representations that established a contract's elements and that there was some evidence 

that MaxCARE considered the authorization form, additional oral representations, and email 

messages sufficient to establish a contract in another case.5  Chi failed to establish that there is a 

4 Chi argues that additional evidence such as inventory lists, invoices, and payments from Allstate 
to MaxCARE establish that there was a written contract.  Br. of Appellant at 18 (citing CP at 236-
43).  But MaxCARE produced these documents in response to Chi's August 12, 2010 
interrogatories and requests for production, well after the trial court granted summary judgment 
on the contract claim in March 2010, and these documents were not before the trial court when it 
considered the first summary judgment motion.  Because we review summary judgment rulings de 
novo, based on the record before the trial court at the time it addressed the motion, we do not 
consider these additional documents.  RAP 9.12; Wash. Fed'n of State Emps., Council 28, 121 
Wn.2d at 157; Green, 137 Wn. App. at 677-78.

5 Chi argues that there was evidence that there was a "meeting of the minds" on the terms of the 
contract, specifically, the nature of the "work" to be performed.  Br. of Appellant at 15.  But 
nothing Chi presented to the trial court demonstrated that there were any writings establishing 
these terms.  The fact parol evidence may have shown that the parties defined the terms of the 
contract and demonstrated a "meeting of the minds" does not establish the existence of a written
contract.  See DePhillips, 136 Wn.2d at 31.

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No.  41606-9-II

question of fact as to whether there was a written agreement.  Accordingly, the trial court did not 

err when it concluded that the three-year statute of limitations applied and granted summary 

judgment in favor of MaxCARE on Chi's contract claim.

       MaxCARE requests attorney fees under RAP 18.9(a), asserting that this is a frivolous 

appeal.  We deny this request, but award MaxCARE costs as the prevailing party under title 14 

RAP.

       We affirm.

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

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so 

ordered.

                                                                   Johanson, J.
We concur:

                   Hunt, J.

                 Penoyar, C.J.

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