HUNT, J.
Tom C. Girard and Deborah L. Montalvo appeal the superior court's grant of summary judgment to Columbia State Bank in a breach of guaranty proceeding following their company, Electronic Service Provider, Inc.'s (ESP), default on a $1,000,000 Small Business Administration loan.
ESP is a Washington corporation located in King County. ESP's president Tom C. Girard and vice president Deborah L. Montalvo reside in Pierce County. In 2005, ESP received a $1,000,000 Small Business Administration loan secured by a promissory note held by Columbia State Bank. Girard and Montalvo signed the promissory note in their corporate capacities.
Although the note does not contain a choice of venue clause, the Corporate Security Agreement (Agreement) securing the note with ESP's assets contains the following venue clause:
Clerk's Papers (CP) at 33 (second emphasis added). Girard and Montalvo signed the Agreement in their corporate capacities.
In addition, Girard and Montalvo each signed commercial loan guaranties in their individual capacities. These guaranties did not include choice of venue clauses. When ESP defaulted on the loan, Girard and Montalvo failed to pay on their guaranties.
The Bank brought suit in Pierce County, suing for replevin of collateral under the Agreement, seeking judgment against ESP for breach of the promissory note; and suing Girard and Montalvo, in their individual capacities, for failure to pay on the guaranties. In their answer, ESP, Girard, and Montalvo (collectively, Defendants) objected to the Pierce County venue. The Bank moved for summary judgment.
Defendants moved to dismiss, arguing that venue in Pierce County was improper under the Agreement's choice of venue clause. Defendants asserted that the Agreement's venue clause specifying King County was enforceable because the Bank had not shown that enforcing this clause would be "unreasonable and unjust." CP at 59. The Bank responded that (1) venue in Pierce County was proper under RCW 4.12.025(1)
Defendants replied that (1) the venue clause language established that the parties had agreed that any suit would be brought in King County; (2) the clause was, at best, ambiguous and the superior court should therefore construe the clause in their favor; and (3) RCW 4.12.080
In support of its summary judgment motion, the Bank included an affidavit from Alana Rouff, the Bank's vice president of "Special Credits," establishing the amount owed on the note. CP at 17. Rouff's affidavit, signed March 16, 2011, stated:
CP at 18 (first emphasis added).
In June 2011, the Bank responded to Defendants' interrogatories and requests for production by providing them with "a loan transaction history concerning the subject loan" and a copy of its "loan file." CP at 131, 133. A printed "[l]oan [i]nquiry" indicated that as of June 7, 2011, the loan balance was $590,800.50, the interest due was $14, 453.27, and the charges/fees due were $18,743.45, for a "Payoff Amount" of $624,075.22.
In an August 12 declaration opposing the Bank's summary judgment motion, Girard argued that there were existing factual issues because the Bank had not included with its motion any documents supporting Rouff's affidavit. Defendants also moved to strike Rouff's "testimony," arguing that it was inadmissible hearsay because Rouff did not provide any documentation to support her affidavit's assertions. CP at 111. In a second declaration supporting the Bank's summary judgment reply, Rouff attached the documents the Bank had provided to Defendants during discovery. The superior court denied Defendants' motion to strike.
The superior court granted the Bank's summary judgment motion, awarding the Bank $590,800.50 in principal, prejudgment interest, attorney fees, costs, and late fees, for a total of $625,430.31. It also awarded the Bank possession of the property subject to the Agreement.
Girard and Montalvo appeal.
Girard and Montalvo first argue that the superior court erred when it denied Defendants' motion to dismiss for improper venue. They argue that (1) the Agreement's choice of venue clause stated that the parties had agreed to venue in King County and that venue was not dependent on the Bank's later choosing to file its action in King County; (2) the Bank failed to show that the choice of venue clause should not be enforced; and (3) the superior court should have honored the choice of venue clause specifying King County, even though the Pierce County venue was otherwise proper.
Before addressing these arguments, however, we must first determine (regardless of whether the Agreement's venue selection clause required the Bank to file in King County) if the superior court was obligated to enforce the choice of venue clause automatically, even though the clause did not, on its face, apply to Girard and Montalvo in their individual capacities or to the guaranties they signed. We conclude that the trial court had no such obligation.
Choice of venue lies in the first instance with the plaintiff. Baker v. Hilton, 64 Wn.2d 964, 965, 395 P.2d 486 (1964). If the defendant seeks to change venue, the matter generally rests within the sound discretion of the trial court. Baker, 64 Wn.2d at 965; Corbin v. Madison, 12 Wn.App. 318, 322, 529 P.2d 1145(1974), review denied, 85 Wn.2d 1005 (1975). We review a trial court's venue decision for abuse of discretion. Baker, 64 Wn.2d at 965; see also Corbin, 12 Wn. App. at 322. We find no such abuse here.
The Bank argues that the superior court was not required to enforce the choice of venue clause automatically because the agreement was between some, but not all, of the parties. The Bank cites American Mobile Homes of Washington, Inc. v. Seattle-First National Bank, 115 Wn.2d 307, 796 P.2d 1276 (1990), and Oltman v. Holland American Line USA, Inc., 163 Wn.2d 236, 178 P.3d 981 (2008). Agreeing, we affirm the superior court's venue ruling.
"A forum selection clause is not binding on a third party who did not agree to the contract in which the clause is found." Oltman, 163 Wn.2d at 250.
Even assuming, without deciding, that the Agreement's choice of venue clause demonstrates that the Bank and ESP agreed to a King County venue for any action on the Agreement, the superior court did not err in allowing the Bank's lawsuit to proceed in Pierce County for the following reasons: The Bank never agreed to bring suit against Girard and Montalvo in their individual capacities in King County. Girard and Montalvo, in their individual capacities, were not parties to any agreement containing a choice of venue clause. The Bank's suit on the guaranties was not derivative of the Agreement because nothing in the Agreement required the Bank to pursue its claim on the Agreement through Girard and Montalvo individually. And the guaranties did not require the Bank to proceed against ESP under the Agreement before demanding payment from Girard and Montalvo on their guaranties.
Citing no authority, Girard and Montalvo argue that they "guarantee[d]" the Agreement; thus, they are personally involved in the matter and entitled to rely on the Agreement's choice of venue clause.
Citing CR 56(e), Girard and Montalvo next argue that the superior court erred in refusing to strike Rouff's March 16, 2011 affidavit in support of the Bank's motion for summary judgment. Again, we disagree.
We generally review for abuse of discretion an order on a motion to strike. Southwick v. Seattle Police Officer John Doe No. 1-5, 145 Wn.App. 292, 297, 168 P.3d 1089 (2008). But we review de novo rulings affiliated with a summary judgment motion. Davis v. Baugh Indus. Contractors, Inc., 159 Wn.2d 413, 416, 150 P.3d 545 (2007) (citing Folsom v. Burger King, 135 Wn.2d 658, 663-64, 958 P.2d 301 (1998)).
CR 56(e) provides in part:
(Emphasis added). Girard and Montalvo are correct that the Bank was required to support its summary judgment motion with "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit"; but they ignore the rule's next sentence, which allows the superior court to permit a party to supplement affidavits with additional information obtained through depositions, answers to interrogatories, or further affidavits.
To the extent Rouff's original affidavit was unsupported by documentation, the Bank clearly cured any such defect with its June 2011 responses to Defendants' discovery requests and Rouff's August 22, 2011 supplement to her original affidavit, which was attached to the Bank's August 22, 2011 summary judgment reply.
The Bank requests attorney fees and costs under RAP 18.1, the promissory note, the Agreement, and Girard and Montalvo's guaranties. Although Girard and Montalvo did not sign the note or the Agreement in their individual capacities, the guaranties they signed provided: "The Guarantor also agrees to pay all interest, fees, charges, attorney fees, and collection costs." CP at 45, 47. Thus, as guarantors they are liable to the Bank for fees and costs on appeal.
We affirm the superior court's grant of summary judgment to the Bank and award the Bank attorney fees and costs incurred in this appeal in an amount to be set by our commissioner upon the Bank's compliance with RAP 18.1(d).
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.
WORSWICK, C.J. and BJORGEN, J., concurs.
The legislature amended this statute in 2011 to insert gender neutral language. Laws of 2011, ch. 336, § 79. Because this amendment was not substantive, we cite the current version of the statute.
