Opinion
42448-7-II
02-21-2013
DIANA PERSON and ROBERT PERSON, husband and wife, Petitioners, v. GREGORY L. BOWMAN and STACY BOWMAN, husband and wife, and ALEX HERRING, a minor, Respondents.
UNPUBLISHED OPINION
WORSWICK, C.J.
Who owned Toby? Diana and Robert Person assert that Gregory and Stacy Bowman did when Toby reared and threw Diana from a horse drawn buggy. The Bowmans assert that Tammy Herring owned Toby when her minor daughter, Alex Herring, was driving the buggy. The trial court ruled on summary judgment that Herring owned Toby under the terms of a purchase agreement between the Bowmans and Herring and therefore the "Equine Activities Statute" exempted the Bowmans from liability. This court granted discretionary review of that decision and we now affirm.
We refer to Tammy Herring as Herring, her daughter as Alex Herring, Diana Person as Person, and use Stacy Bowman's full name for clarity.
RCW 4.24.530-.540.
FACTS
On April 18, 2009, Person was injured when she was thrown from a horse-drawn buggy at Summit Stables in Puyallup. She was riding in the buggy while Alex Herring was operating it. The horse pulling the buggy, Toby, was the subject of a purchase agreement Alex's mother, Tammy Herring, and Stacy Bowman executed on October 4, 2006. The agreement, entitled "Bill of Sale – Purchase Agreement," defines Herring as the "BUYER" and the Bowmans as the "SELLER". Clerk's Papers (CP) at 77. It provided that Herring would make a $300 down payment and then monthly payments in an amount "to be determined" until she paid $2,200 in total for Toby. CP at 77. It required Herring to keep Toby at Summit Stables until she paid off the balance. And, it required Herring to pay a boarding fee and be responsible for any incidental costs such as veterinary, farrier, and training expenses. The Bowmans would provide Toby's registration papers to Herring only when she paid in full. Finally, the contract contained the following clause: "By signing below the buyer acknowledges this Sale Is Final and they have purchased the horse "As Is." CP at 77.
Stacy Bowman, along with her ex-husband, Gregory Bowman, owned Summit Stables when Person was injured.
According to Herring, until she paid the purchase price in full, she considered Toby a rented horse. Stacy Bowman acknowledged in her deposition that the agreement with Herring was akin to "a lease to own the horse." CP at 99. She admitted that she may have used the word "lease" in talking to Herring, but explained, "I could have because she didn't outright own the horse yet." CP at 99. Herring made the final payment for Toby over seven months after the accident, in December 2009. In her declaration, Person, who frequented and volunteered at the stable, thought that Herring had leased Toby:
My understanding was that at the time of the accident, Toby was still owned by the Bowmans. I understood he was a leased animal. In fact, it was common knowledge. I knew that the Herrings were trying to buy him, but Stacy Bowman still referred to the horse as theirs.CP at 116.
The Bowmans moved for summary judgment, arguing that they were protected against liability under the Equine Activities Statute, arguing that they did not "provide" Toby for Alex Herring because his family owned Toby. RCW 4.24.540(2)(b)(i)(B). The trial court granted the motion, explaining:
RCW 4.24.530-.540.
The issue of whether the Bowmans owned the horse, I've struggled with this a fair amount because I understand the factual issues, but I believe the bill of sale operates to basically make the Herrings the owners of the horse. And, therefore, the Bowmans are not the owners of the horse, although they have a security interest in it, and clearly the Herrings do not own it free and clear until they've paid in full. They are the owner of the horse for these purposes.Report of Proceedings at 3. This court then granted the Persons' motion for discretionary review, ruling that there exists "a controlling question of law as to which there is substantial ground for a difference of opinion." RAP 2.3(b)(4). See Ruling Granting Review, No. 42448-7 (Wash. Oct. 7, 2011).
Herring also asked this court to grant discretionary review and has filed a brief asking this court to reverse the trial court's summary judgment order.
ANALYSIS
The Persons argue that the trial court erred when it found that Herring owned Toby because there was a genuine issue of material fact as to who owned Toby at the time of the accident. Alex Herring and the Persons contend that Herring had not yet assumed ownership of Toby but, instead, was still leasing him, and, as a result, the Bowmans may be liable under the Equine Activities Statute. The Persons further contend that the trial court erred in determining that extrinsic evidence of additional contract terms did not raise a material question of fact.
A. Standard of Review
The trial court granted summary judgment to the Bowmans and thus we consider this matter de novo and make the same inquiry as the trial court. Summary judgment is appropriate when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue about any material fact and, assuming facts most favorable to the nonmoving party, establish that the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
B. The Equine Activities Statute
RCW 4.24.540(1) imposes liability limits for equine activities. It provides:
(1) Except as provided in subsection (2) of this section, an equine activity sponsor or an equine professional shall not be liable for an injury to or the death of a participant engaged in an equine activity, and, except as provided in subsection (2) of this section, no participant nor participant's representative may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity.
But RCW 4.24.540(2)(b) creates an exception to this liability limit. It provides:
Nothing in subsection (1) of this section shall prevent or limit the liability of an equine activity sponsor or an equine professional:
(i) If the equine activity sponsor or the equine professional:
. . . ;
(B) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, determine the ability of the equine to behave safely with the participant, and determine the ability of the participant to safely manage the particular equine;(Emphasis added.) The question before us is whether the Bowmans "provided the equine" under this statute. If they did not, as the trial court ruled below, they are exempt from liability under the
Equine Activities Statute. "Provided" for purposes of RCW 4.24.540, means "to make available for use a horse that the sponsor either owns or controls." Patrick v. Sferra, 70 Wn. App. 676, 682, 855 P.2d 320 (1993). The trial court ruled that the purchase agreement between the Bowmans and Herring established, as a matter of law, that Herring owned Toby and, as such, that liability rested solely with Alex Herring. Thus, we now review that agreement.
C. The Purchase Contract
Washington follows the objective manifestation theory of contract interpretation, under which courts try to ascertain the parties' intent "by focusing on the objective manifestations of the agreement, rather than on the unexpressed subjective intent of the parties." Hearst Comm'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). Under this rule, courts can consider extrinsic evidence relating to the context in which the parties made the contract "'to determine the meaning of specific words and terms."' 154 Wn.2d at 503 (emphasis omitted) (quoting Hollis v. Garwall, Inc., 137 Wn.2d 683, 695-96, 974 P.2d 836 (1999)). Extrinsic evidence includes the contract's subject matter and objective, all the circumstances in making the contract, the parties' subsequent acts and conduct, and the reasonableness of parties' interpretations. 154 Wn.2d at 502. But such extrinsic evidence can only be used to interpret what is in the instrument, not to show intention independent of the instrument. Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990).
Here, the parties do not appear to dispute that looking at the contract alone without considering extrinsic evidence makes it clear that Herring owned Toby. The title of the agreement, the use of BUYER and SELLER, and the buyer's responsibility to board the horse and pay all incidental expenses all show ownership responsibility. While the contract requires keeping the horse at the stable, making timely payments, not removing the horse without permission, and it gives the seller the right to terminate the contract upon default, these provisions give the seller recourse should it have to recover the horse. In other words, these provisions act as the seller's security interest, protecting the seller until it no longer has a risk of loss.
Herring argues, however, that the extrinsic evidence raises a question of fact as to whether this contract was actually a lease. She relies on Lopez v. Reynoso, 129 Wn. App. 165, 118 P.3d 398 (2005). There, Lopez purchased a car from Reynoso under an installment contract. 129 Wn. App. at 167. Reynoso repossessed the car when Lopez did not make all the payments in her amortization schedule. 129 Wn. App. at 167. Lopez sued for replevin and the trial court allowed Reynoso to introduce extrinsic evidence that Lopez's initial $2,000 payment had been deducted from the sale price listed on the contract, contradicting Lopez's claim that the contract was fully integrated and her payment applied under the contract. 129 Wn. App. at 167. She argued on appeal that considering extrinsic evidence was improper because it contradicted the contract terms. 129 Wn. App. at 170. Division Three of this court disagreed, holding that the extrinsic evidence did not contradict the contract terms because the reduced sales price in the contract was consistent with the repayment terms and the amortization schedule. 129 Wn. App. at 172.
Here, unlike in Lopez v. Reynoso, the extrinsic evidence contradicted the contract terms. The extrinsic evidence presented to the trial court consisted of Herring's assertions that she did not own Toby at the time of the accident and did not believe she would own him until she paid the full contract price. It consisted of Person's belief that Toby was a leased horse. And it consisted of statements Stacy Bowman gave during her deposition testimony using the word "lease," equating the situation as "a lease to own the horse," and acknowledging that she may have used the word "lease" in talking to Herring. CP at 99.
But none of these statements demonstrates that the parties intended to lease Toby. Each statement acknowledges that the Bowmans retained a security interest in Toby and that Herring would not own Toby free and clear or have the right to remove him from the stable until she made her final payment. While Herring's subjective belief may have been that she did not own Toby and that this was a lease-like agreement, the parties' objective manifestations are consistent with this being a sale not a lease. We fail to see how Lopez v. Reynoso, 129 Wn. App. 165, changes this result. See Go2Net, Inc. v. C I Host, Inc., 115 Wn. App. 73, 60 P.3d 1245 (2003) (affirming summary judgment when extrinsic evidence did not demonstrate ambiguity in key contract term).
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.
We concur: Quinn-Brintnall, J. Van Deren, J.