COURT OF APPEALS, DIVISION I
OF THE STATE OF WASHINGTON
Long Cao
Respondent No. 82011-7-1
Tuan Nguyen,
Petitioner
PETITIONER’S RESPONSE TO RESPONDENT’S REPLY TO PETITIONER’S MOTION FOR DISCRETIONARY REVIEW
- PRELIMINARY STATEMENT
Petitioner, TUAN NGUYEN, makes the instant submission in reply to Respondent’s response/opposition to Petitioner’s Motion for Discretionary Review.
- RELEVANT FACTS
On November 23, 2020, Petitioner filed a Motion for Discretionary Review with this Honorable Court.
Respondents filed a reply to the said Motion on November 30, 2020.
- ARGUMENTS
The decision of the Superior Court is in conflict with a decision of the Court of Appeals or the Supreme Court
The Respondent alleges that the Petitioner has failed to prove that the Superior Court’s decision conflicts a decision at the Court of Appeals or the Supreme Court. Contrary to Respondent’s assertions(s), both the Supreme Court and the Court of Appeal have issued rulings that show the standard of proof of evidence of a contract.
In Hansen v. Transworld Wireless TV-Spokane, Inc., the Court of Appeal held that the formation of a valid contract requires that the parties objectively express a mutual agreement as to the contract’s material terms. 11 Wn.App. 361, 370, 44 P.3d 929 (2002). It follows; without an express mutual agreement, the Respondent cannot prove the existence of a contract.
The Washington Supreme Court has declined to adopt the Restatement (Second) of Contracts § 139 (1981), which applies the doctrine of promissory estoppel generally to enforce an oral promise not in compliance with the statute of frauds or RCW 19.36.010 (setting forth categories of contracts that are void if not written). Greaves v. Medical Imaging Systems, Inc., 124 Wn.2d 389, 879 P.2d 276 (1994). Besides, there was no promise by the Petitioner to enter any written agreement with the Respondent in the future on the self-same subject matter. Restatement (Second) of Contracts § 178, comment f (1981). It follows; if the agreement between the Petitioner and Respondent did not conform to the Statute of Frauds, then the contract is void.
The Superior Court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by the court of limited jurisdiction, as to call for review by the Appellate court.
Respondent alleges that Petitioner failed to provide a basis that the Superior Court departed from a usual course of judicial proceedings or sanctioned such a departure.
It is settled law that all credit agreements in Washington State need to be in writing. A “credit agreement” includes any agreement or commitment to lend money or to modify the terms under which the creditor has lent money. RCW 19.36.100.
Section 19.36.010 of the Revised Code of Washington states in part that, “… any agreement, contract, and promise shall be void, unless such agreement, contract, or promise, or some note or memorandum thereof, be in writing, and signed by the party to be charged therewith, or by some person thereunto by him or her lawfully authorized, that is to say: … every special promise to answer for the debt, default, or misdoings of another person… “. RCW 19.36.010. (Emphasis mine). It follows, any such agreement that is not in writing is legally considered void. Id. Section 19.36.110 of the Revised Code of Washington also states in the same vein that, “… A credit agreement is not enforceable against the creditor unless the agreement is in writing and signed by the creditor…” RCW 19.36.110.
Cuong Do, the recipient of the money advance from the Respondent intended to use the amount in establishing a commercial enterprise. Therefore, the money advance was subject to the Statute of limitations. Section 19.36.120(2) of the Revised Code of Washington states that the credit agreement statute of frauds does not apply, however, to “a loan of money or extension of credit to a natural person that is primarily for personal, family, or household purposes and not primarily for investment, business, agricultural, or commercial purposes.” RCW 19.36.120(2). See also Wells Fargo Bank v. Main, No. 28978-8-III.
CONCLUSION
All the allegations in Respondent’s response fail to provide sufficient reason why Petitioner’s Motion for Discretion should not be allowed. Also, Petitioner has fully discharged his burden of proof in alleging that the Superior Court erred in ruling for the Respondent.
Accordingly, this Honorable Court should accept review under RAP 2.3(d) and reverse the Superior Court’s decision.
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing Motion has been sent to the Respondent in the following address:
[ENTER ADDRESS FOR RESPONDENT].
ADDENDUM
RESPONDENT’S REPLY TO PETITIONER’S MOTION FOR DISCRETIONARY REVIEW
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