Petitioner V Negligence Case

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1 of 3 DOCUMENTS M.A. MORTENSON COMPANY, INC., Petitioner, v. TIMBERLINE SOFTWARE CORPORATION and SOFTWORKS DATA SYSTEMS, INC., Respondents. No. 67796--4 SUPREME COURT OF WASHINGTON 140 Wn.2d 568; 998 P.2d 305; 2000 Wash. LEXIS 287; CCH Prod. Liab. Rep. P15,893; 41 U.C.C. Rep. Serv. 2d (Callaghan) 357 October 26, 1999, Oral Argument Date May 4, 2000, Filed PRIOR HISTORY: [***1] Appeal from Superior Court, King County. 95--2--31991--2. Honorable Phillip Hubbard, Judge. DISPOSITION: Court of Appeals affirmed, upholding trial court's order of summary judgment of dismissal and denial of motions to vacate and amend. LexisNexis(R) Headnotes COUNSEL: For Petitioner: Bradley L. Powell, Oles Morrison Rinker & Baker Llp, Seattle, WA, Catherine
LEXIS 287, ***11; CCH Prod. Liab. Rep. P15,893 the [***12] Court of Appeals. n5 n5 Four months after filing its notice of appeal, Mortenson moved to vacate the trial court judgment and amend its pleadings to include tort claims. The trial court denied these motions and the Court of Appeals affirmed. M.A. Mortenson Co., 93 Wn. App. at 837--39. While Mortenson argues in its supplemental briefing that the Court of Appeals erred in affirming the trial court's denial of these motions, it fails to include this issue in its petition for review. As such, we decline to reach it. RAP 13.7(b). The Court of Appeals affirmed the trial court and held (1) the purchase order was not an integrated contract; (2) the license terms were part of the contract; and (3) the limitation of remedies clause was not unconscionable and, therefore, enforceable. M.A. Mortenson Co. v. Timberline Software Corp., 93 Wn. App. 819, 826--37, 970 P.2d 803 (1999). Mortenson petitioned this court for review, which we granted. ANALYSIS In reviewing an order of summary judgment, [***13] this court engages in the same inquiry as the trial court; summary judgment will be affirmed where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Hertog v. City of Seattle, [*578] 138 Wn.2d 265, 275, 979 P.2d 400 (1999) (citing Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243 (1992); CR 56(c)). The facts and
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. (3) Even though one or more terms are left [***21] open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. (Emphasis added.) Although no Washington case specifically addresses the type of contract formation at issue in this case, a series of recent cases from other jurisdictions have analyzed shrinkwrap licenses under analogous statutes. See Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 250-51, 676 N.Y.S.2d 569 (1998); Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir.), cert. denied, 522 U.S. 808, 118 S. Ct. 47, 139 L. Ed. 2d 13 (1997); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). In ProCD, which involved a retail purchase of software, the Seventh Circuit held software shrinkwrap license agreements are a valid form of contracting under Wisconsin's version of U.C.C. section 2-204, and such agreements are enforceable unless objectionable under general contract law such as the law of unconscionability. ProCD, 86 F.3d at 1449--52. The court stated, 'notice on the outside, terms on the inside, and a right to return the software