Opinion
No. 26161-1-III.
June 5, 2008.
Appeal from a judgment of the Superior Court for Douglas County, No. 02-2-00199-5, John Hotchkiss, J., entered May 15, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Kulik, A.C.J., and Sweeney, J.
Mere opinions or conclusions without factual support are insufficient to defeat a motion for summary judgment. Roger Crane Assocs., Inc. v. Felice, 74 Wn. App. 769, 875 P.2d 705 (1994); Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 753 P.2d 517 (1988). If the nonmoving party cannot provide sufficient evidence of an essential element of its claim, summary judgment is proper. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). We conclude that James Tarrant failed to provide sufficient evidence to support the economic damages he alleged. We therefore affirm.
FACTS
Mr. Tarrant slipped and fell on oil that leaked from a concrete pump onto the common area of his housing development on April 19, 2001. Asserting personal injuries as well as property damage from the oil leak, which spread to his driveway, he brought an action against Lake Entiat Lodge, Associated (the homeowner's association) and Christopher C. Hauge (the owner and operator of the concrete pump).
Other parties named are not relevant to this appeal.
Mr. Hauge moved for partial summary judgment on Mr. Tarrant's claim for economic damages, asserting that there was insufficient evidence to support those damages. Mr. Tarrant's economic loss was based on an opinion by Jeffrey Neher, a certified public accountant. Mr. Neher was the accountant for both Mr. Tarrant and Lectro Tek Services, Inc. Mr. Tarrant held a 60 percent interest in Lectro Tek. Lectro Tek was primarily in the business of selling potato processing equipment developed by Mr. Tarrant. Mr. Hauge contended that Lectro Tek was insolvent and had no contracts for the purchase of its products and thus Mr. Tarrant would not receive earnings from technology he claimed to be developing but could not complete due to his injury.
Mr. Tarrant presented a declaration by Mr. Neher stating that Lectro Tek would have made future profits sufficient to pay Mr. Tarrant a salary and bonuses after the date of his injury. This opinion was based on Mr. Neher's knowledge of the company's financial accounts and observation of its history. He stated the company would have large profits followed by significant losses due to substantial expenditures on research and development of new technology. Mr. Neher averred that Lectro Tek had previously marketed new technology and then obtained verbal commitments from prominent players in the potato industry who aided in placing the newly developed machinery in processing plants.
Mr. Tarrant provided a declaration stating that he had obtained a verbal commitment from Jerome Bushman, prominent in the potato industry, for the placement of Lectro Tek's newly developed external laser sorter. In his deposition Mr. Bushman testified that he had substantial influence in the potato packing industry in Wisconsin and Florida and that there was a substantial need for the sorter. Because Mr. Bushman's company marketed potatoes for several packing concerns, he was confident he could assist in placing the sorter, given his influence with those who would purchase it.
Mr. Neher based his expert opinion on the fact a new sorter was in development, the history of Lectro Tek's financial performance pattern, and the salary and bonuses paid to Mr. Tarrant on previous projects to estimate the amounts that Mr. Tarrant would have been paid after his injury had his disability not prevented him from continuing with the new sorter project.
Mr. Tarrant moved to amend his complaint to include the manufacturer of the hydraulic hose, Schwing America, Inc., for defective product manufacture. The motion was granted. Mr. Tarrant later moved to add a claim against Mr. Hauge for spoliation of evidence because Mr. Hauge disposed of the hose on the day of the leak. Schwing joined in the motion for sanctions against Mr. Hauge for destroying evidence. The court declined to exclude Mr. Hauge's testimony on any defect in the hose, but ruled that the jury would be informed that the hose was thrown away and would be instructed that it may infer that the evidence would have been unfavorable to Mr. Hauge if it found that he failed to preserve the evidence knowing that it might be relevant to a possible lawsuit.
Finding that Mr. Neher's financial testimony lacked a sufficient factual basis, the trial court granted Mr. Hauge's motion for partial summary judgment. The parties settled the remaining issues and agreed to dismiss the case with prejudice. Mr. Tarrant appeals the partial summary judgment order on his economic loss.
Schwing cross-appealed the ruling regarding the hydraulic hose. Given our holding, we need not address the cross-appeal.
ANALYSIS
When reviewing summary judgments, the appellate court engages in the same inquiry as the trial court. The review is de novo. Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996). On a motion for summary judgment, judgment shall be entered for the moving party if there exists no genuine issue as to any material fact. CR 56(c). In its determination, the court will consider the facts and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). An order for summary judgment can be granted only if reasonable persons could reach but one conclusion. Id.
Here, summary judgment was granted because the trial court found a lack of evidence to support the claim for economic loss. The admissibility of expert testimony is within the discretion of the trial court and should not be disturbed absent an abuse of discretion. Myers v. Harter, 76 Wn.2d 772, 781, 459 P.2d 25 (1969). Abuse occurs when discretion is exercised on untenable grounds or for untenable reasons. State ex. rel Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The trial court is given particular deference when presented with fair arguments both for and against admissions. Davidson v. Mun. of Metro. Seattle, 43 Wn. App. 569, 572, 719 P.2d 569 (1986). "`[I]f the reasons for admitting or excluding the opinion evidence are both fairly debatable, the trial court's exercise of discretion will not be reversed on appeal.'" Id. (emphasis omitted) (quoting Levea v. G.A. Gray Corp., 17 Wn. App. 214, 220-21, 562 P.2d 1276 (1977)).
"[A]n expert witness must have a reasonable basis of information about the subject before offering his or her expert opinion." In re Disability Proceeding Against Keefe, 159 Wn.2d 822, 831, 154 P.3d 213 (2007) (citing ER 702, 703). Opinion testimony is proper if it is fairly based on material facts, supported by substantial evidence under the proponent's theory of the case. Tokarz v. Ford Motor Co., 8 Wn. App. 645, 653, 508 P.2d 1370 (1973). Whether expert testimony falls within these rules is a matter for the trial court's wide discretion. Id. (citing Myers, 76 Wn.2d 772; Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 381 P.2d 605 (1963)).
Mr. Tarrant argues that there was sufficient factual basis for Mr. Neher's opinion because Mr. Tarrant had a verbal commitment from Mr. Bushman of Bushman, Inc., for a $1.7 million potato sorter. The actual evidence did not support this claim.
Mr. Bushman testified in his deposition that in 2000 he reduced his sole interest in Bushman, Inc. to that of a minority (16 percent) shareholder. His two sons acquired majority ownership. The sons, not Mr. Bushman, had decision-making authority. And even if Mr. Bushman had decision-making authority to purchase equipment, because Bushman, Inc. did not pack potatoes, it had no use for the potato sorter. Mr. Bushman owned another business — Potato World — that packed potatoes, but he sold that business in 2000. Mr. Tarrant had discussed with Mr. Bushman the placement of the sorter at Potato World, but the business was sold before Mr. Tarrant could complete building the sorter. Potato World was sold before Mr. Tarrant's injury.
Taking the evidence in the light most favorable to Mr. Tarrant, Mr. Bushman does have impressive experience in the potato business and he maintains considerable contacts with and has influence over potato packers. There is evidence that informal business practices are the norm within this particular circle of people in the potato industry, but there is no evidence that this informality is an industry-wide standard and there was no writing to bind the parties. See article 62A.2 RCW.
Basically Mr. Bushman verbally agreed to use his influence to persuade others to purchase Mr. Tarrant's sorter. This is not a reliable basis upon which Mr. Neher could give an expert opinion regarding Mr. Tarrant's economic loss. Because the facts do not support Mr. Neher's opinion, the trial court properly granted partial summary judgment on Mr. Tarrant's claimed economic loss.
Affirmed.
A majority of the panel has determined that 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.
KULIK, A.C.J. and SWEENEY, J., concur.