IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KURT A. BENSHOOF, No. 85465-8-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION JESSICA R. OWEN,
Respondent.
BIRK, J. — Kurt Benshoof appeals the trial court’s order ejecting him from
the property at issue (the Property), arguing the trial court erred by: (1) dismissing
his claims, (2) canceling the lis pendens he recorded against the Property, (3)
denying Benshoof’s motion to amend his complaint, (4) refusing to allow him to
testify remotely, and (5) limiting evidence of monetary contributions to the Property.
Benshoof further argues the “totality of the trial court’s rulings” exhibited bias. We
affirm.
I
Before the purchase of the Property, Benshoof and Jessica Owen were in
a relationship. The relationship ended in 2012. On October 13, 2014, Owen
contracted to purchase the Property. On December 30, 2014, with the help of her
parents, Owen closed the transaction and title was conveyed to Owen and her
parents. Owen moved into the Property in January 2015, and Benshoof moved
into the Property in March 2016. In December 2018, Owen refinanced the Property No. 85465-8-I/2
and her parents conveyed their interest to her. In July 2020, Owen moved out of
the Property, leaving Benshoof in the house. In September 2020, Owen
purchased and moved into a new home. In August 2021, Owen told Benshoof she
planned to evict him from the Property.
On March 16, 2022, Benshoof filed a pro se complaint against Owen “for
money damages resulting from constructive fraud and infliction of emotional
distress” under King County Superior Court cause number 22-2-03826-8 SEA.
Benshoof alleged Owen “abused [Benshoof’s] trust, and refused to add
[Benshoof’s] name to the title of their house as had been agreed upon before [the
parties] finalized the mutual purchase agreement.” Benshoof alleged that—
starting at least four years earlier—“[b]etween 2018 and September 2021,
[Benshoof] repeatedly demanded that [Owen] put [Benshoof’s] name” on the
Property title, but that during that same time period Owen refused to do so. On
May 6, 2022, Owen filed her first amended answer to the complaint asserting
counterclaims for ejectment and recovery for unjust enrichment.
On June 24, 2022, Owen filed a CR 12(c) motion for judgment on the
pleadings, arguing Benshoof’s claims “(1) are barred by the relevant statute of
limitations; (2) are improperly pleaded; and/or (3) they fail to state a claim upon
which relief can be granted.” On July 15, 2022, Benshoof filed an “amended”
complaint without leave from the trial court, asserting the same two legal claims,
but attempting to reframe the earlier allegation that Owen had disputed Benshoof’s
claim of ownership more than three years before the commencement of his action.
The trial court dismissed Benshoof’s claims, ruling his fraud claim “as pleaded, or
2 No. 85465-8-I/3
whether pleaded as any other claim arising from [Owen’s] repudiation of an alleged
oral promise concerning the [Property], is time barred and dismissed with
prejudice” and that Benshoof’s complaint “fails to state a claim upon which relief
can be granted for the recovery of emotional distress and is accordingly dismissed
with prejudice.” The trial court noted that Benshoof had improperly attempted to
amend his complaint, and ruled “even if this amended complaint were to be
considered, it fails under the same merits.” (Boldface omitted.) The trial court
clarified that its ruling did “not impact the two causes of action articulated in
[Owen’s] counterclaims.”
On September 28, 2022, still pro se, Benshoof filed a new lawsuit against
Owen under King County Superior Court cause number 22-2-15745-3 SEA,
alleging the same set of facts as the previously dismissed complaint. Benshoof
made additional allegations about the arrangements for the purchase money for
the house and representations he claimed showed joint ownership, but omitted his
earlier allegation that Owen had disputed his claim of ownership more than three
years before the commencement of the actions. He asserted one claim only, for
“fraud.” Owen filed a motion to consolidate this and another of Benshoof’s lawsuits
under cause number 22-2-03826-8 SEA because “[a]ll three cases share common
questions of law and similar facts underlying [Benshoof’s] various disputes.” 1 The
trial court consolidated cause number 22-2-15745-3 SEA (the second house
1 The third case Owen requested to consolidate was King County Superior
Court cause number 22-2-15958-8 SEA, in which Benshoof sued Owen, her attorney, her current partner, and her friend, as described in our opinion of even date in matter number 85092-0-I.
3 No. 85465-8-I/4
ownership case) into cause number 22-2-03826-8 SEA (the first house ownership
case).
On December 27, 2022, Owen filed a CR 56 motion for ejectment and CR
12(b)(6) motion to dismiss, requesting the trial court grant summary judgment on
her counterclaim for ejectment and dismiss Benshoof’s “re-filed claim of fraud.” On
the same day, now represented by counsel, Benshoof moved for leave to amend
his complaint “initially filed on March 16, 2022, (22-2-03826-8) which was then
consolidated with the complaint filed under case (22-2-15745-3).” The motion
explained that Benshoof’s proposed amended complaint “includes more properly
stated cause of action (unjust enrichment, constructive trust and quiet title), which
reflect the essence of the legal issues in this matter.” The trial court denied
Benshoof’s motion to amend, stating,
More than five months [after the trial court dismissed his claims], Benshoof, now with the assistance of counsel, seeks to revive his lawsuit by amending his Complaint to assert claims for breach of contract, unjust enrichment, constructive trust, and quiet title. The Court finds that if Benshoof is allowed to amend his complaint at this juncture, Owen would be substantially prejudiced. . . . Pursuant to the deadlines set forth in the case schedule, there is no time for Owen to conduct any discovery on Benshoof’s new claims. Discovery cutoff is January 23, 2023, and trial is set to commence March 13, 2023. It is simply too late for Benshoof to circumvent [the trial court’s] ruling from July 2022 and revive his lawsuit with an amended complaint.
Although the trial court based its decision on the prejudicial effect of an untimely
amendment, it noted “that allowing the amended complaint would be futile. Given
[the prior] ruling, any claim arising from Owen’s repudiation of an alleged oral
promise concerning the home is without merit.”
4 No. 85465-8-I/5
On January 24, 2023, the trial court granted Owen’s motion to dismiss
Benshoof’s September complaint and granted Owen’s request that the lis pendens
recorded against the Property be cancelled because Benshoof “possesses no
claim to the title of the [Property].”
On the date of trial, Benshoof was not present because, his counsel
claimed, “there is a warrant, a civil warrant for his arrest, and in speaking with
defense counsel, it was advised that he not appear in court.” Owen advised the
trial court that charges were pending in Seattle Municipal Court and “[t]he filing
date was March 14, 2023.” Benshoof’s counsel requested the trial court allow him
to appear by Zoom2, and Owen objected. The trial court stated it “set this for an
in-person trial because, frankly, I believe it would be easier for the Court to oversee
this trial with both parties in person given the amount of litigation that has occurred
involving [Benshoof],” and it believed “that proceeding by Zoom would essentially
not give the Court enough control over the litigants in this matter.” The trial court
denied Benshoof’s request to appear by Zoom. The trial court stated that if
Benshoof chose to join, “he will have an opportunity to testify here if he wishes to.”
At trial, during Owen’s cross-examination, Owen’s counsel objected to a
question regarding who paid the earnest money for the Property, arguing it was
not relevant “given we’re talking about September 2020 forward.” Benshoof
argued that in the “context” of unjust enrichment “and equity and in fairness of what
2 “Zoom” is a cloud-based, peer-to-peer videoconferencing software platform that is used for teleconferencing, telecommuting, distance education, and social relations. In re Dependency of G.L.L, 20 Wn. App. 2d 425, 428 n.1, 499 P.3d 984 (2021).
5 No. 85465-8-I/6
[Benshoof] did or didn’t pay even in 2020, 2021, and 2022, I think there’s a context
for the home and where he was living, and I think that we have the right to establish
that context.” The trial court stated it was “only considering the past three years
from when the complaint was filed” for the purposes of unjust enrichment, “but for
all intents and purposes, it would really start from when [Owen] moved out.” The
trial court confirmed it was “only looking from September of 2020 forward for the
unjust enrichment claim,” and sustained the objection. After Benshoof made an
offer of proof and argued the evidence was relevant, the trial court asked Owen for
a response. Owen stated,
[DEFENSE COUNSEL]: I think what’s happening here is there’s an attempt to assert a setoff to an unjust enrichment claim prior to the circumstances that the Court has to consider prior to that time period, and that’s you know, for a number of procedural reasons, not appropriate. It’s been time-barred. There’s no setoff [pleaded]. It’s December of 2014, as we have noted before. We’re making the claim for continued sole occupancy of September 2020 forward. If we were to go back before September of 2020 when they were living under the same roof, I’ll proffer that there would be testimony about [Benshoof] giving [Owen] cash for raising their kid. For buying groceries. For potentially living in the house. There’s money. There’s bills that she paid for that benefitted him. You’re going to get into an entire system of debits and credits. And, essentially, what you’re going to be asked to do on claims which are time-barred is come up with a net amount of debits and credits and then offset it against circumstances that occurred in the future. And, again, because of the statute of limitations ruling, it’s not reasonable, even though it wasn’t raised for us, to go back and then argue about the debits and credits that would favor us in that circumstance.
The trial court sustained the objection.
6 No. 85465-8-I/7
Later in trial, Benshoof objected to testimony by Owen and requested the
trial court consider excerpts from his deposition testimony, because he was “not
here,” in order to controvert Owen’s characterization of certain payments. The trial
court responded that it “did read [Owen’s] designations because [Benshoof] is a
party-opponent,” but it did not read Benshoof’s designations of his testimony
because “I can’t consider that portion of the testimony unless it basically is like
under the rule of completeness, for example.” The trial court sustained the
objection.
At the end of trial, the trial court stated it was “going to take judicial notice
of [Benshoof’s] litigation tactics against [Owen],” and noted,
There’s also been just one case after another, including a vexatious litigation order, including a denial of a writ of habeas corpus order, and I do think the Court will take judicial notice of all of those lawsuits, and that they should be included in the findings of fact and conclusions of law.
After hearing argument on the matter, the trial court revised its written findings of
fact to clarify it was “ ‘not relying on this litigation in the determination regarding
liability and damages in this case, but it is nonetheless relevant context under
which this lawsuit occurs.’ ”
On June 2, 2023, the trial court issued its findings of fact and conclusions
of law, concluding Owen was entitled to an order ejecting Benshoof from the
Property because Benshoof possessed no claim to the Property title. The trial
court issued a writ of ejectment and ordered that Owen was entitled to $41,300.00
arising from Benshoof’s occupancy of the Property. Benshoof appeals.
7 No. 85465-8-I/8
II
Benshoof argues the trial court incorrectly barred any claims as to
ownership due to the statute of limitations, thereby dismissing his claims under CR
12(c). We disagree.
We review a CR 12(c) dismissal ruling de novo, examining the pleadings to
determine whether the claimant can prove any set of facts, consistent with the
complaint, that would entitle the claimant to relief. N. Coast Enters., Inc. v. Factoria
P’ship, 94 Wn. App. 855, 858-59, 974 P.2d 1257 (1999). The factual allegations
alleged in the complaint are accepted as true. Id. at 859. Dismissal is appropriate
when it appears beyond a reasonable doubt the plaintiff cannot prove any set of
facts that would justify recovery. Aji P. v. State, 16 Wn. App. 2d 177, 187, 480
P.3d 438 (2021).
Benshoof alleged that in early October 2014, the parties discussed buying
a home, and purchased the Property “together as co-owners.” He said the parties
agreed that Owen would “get the home loan” with her father as a co-signor and
“agreed that as soon as a new home loan without [the co-signor] was obtained,
that [Benshoof] would be added to the house Title as the rightful co-owner.” He
continued, “In, or around 2018, [Owen] obtained a home loan without her Father
as a co-signor.” Benshoof alleged that from 2018 to 2021, he demanded that
Owen place his name on the Property’s title, and Owen “repeatedly made excuses
and/or refused to add [Benshoof’s] name to their house title.” In 2020, Owen
bought her “own house and moved out of the [Property].” In 2021, Owen advised
8 No. 85465-8-I/9
Benshoof that she owned the Property and he “was only a renter” because “only
[Owen’s] name was on the title to their house.”
A
The statute of limitations for fraud is three years, and “the cause of action
in such case [is] not to be deemed to have accrued until the discovery by the
aggrieved party of the facts constituting the fraud.” RCW 4.16.080(4). The
limitations period is also three years for an action “upon a contract or liability,
express or implied, which is not in writing, and does not arise out of any written
instrument,” RCW 4.16.080(3), or for an action “for any other injury to . . . the rights
of another not hereinafter enumerated,” RCW 4.16.080(2), and there is a catch-all
limitation period of two years from accrual for an action “for relief not hereinbefore
provided for,” RCW 4.16.130. The trial court properly dismissed Benshoof’s
constructive fraud claim because it was time barred. Benshoof alleged in his
complaint that Owen repudiated any agreement by at least 2018, and he did not
file suit until March 2022, more than three years after the alleged repudiation. The
limitation period had expired. The trial court did not err in dismissing Benshoof’s
constructive fraud claim.
B
To establish a claim for intentional infliction of emotional distress, a plaintiff
must prove (1) extreme and outrageous conduct, (2) intentional or reckless
infliction of emotional distress, and (3) actual result to plaintiff of severe emotional
9 No. 85465-8-I/10
distress.3 Kloepfel v. Bokor, 149 Wn.2d 192, 195, 66 P.3d 630 (2003). “Any claim
of outrage must be predicated on behavior ‘so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’ ” Strong v.
Terrell, 147 Wn. App. 376, 385-86, 195 P.3d 977 (2008) (quoting Kloepfel, 194
Wn.2d at 196).
According to Benshoof, Owen refused to add Benshoof’s name to the
Property title, asserted that Benshoof was “only a renter,” and threatened to evict
him. Even while viewing the facts as pleaded in the light most favorable to
Benshoof, no reasonable person could conclude that Owen’s conduct was “so
outrageous” and “so extreme” as to support an intentional infliction of emotional
distress claim. Strong, 147 Wn. App. at 385-86. At worst, Benshoof’s allegations
fall within the category of “ ‘insults, indignities, threats, annoyances, petty
oppressions, or other trivialities,’ ” which do not amount to intentional infliction of
emotional distress. Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)
(quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. D (AM. L. INST. 1965)). The
trial court did not err in dismissing Benshoof’s intentional infliction of emotional
distress claim.
3 “Outrage” and “intentional infliction of emotional distress” are synonyms
for the same tort. See Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 250, 35 P.3d 1158 (2001) (applying elements of outrage to claim for intentional infliction of emotional distress).
10 No. 85465-8-I/11
III
Benshoof argues the trial court abused its discretion in canceling the lis
pendens recorded against the Property. We disagree.
A “lis pendens” is an “instrument having the effect of clouding the title to real
property.” RCW 4.28.328(1)(a). Either party to an action affecting title to real
property may file a notice of lis pendens with the county auditor. RCW 4.28.320.
RCW 4.28.320 governs when a court may cancel a notice of lis pendens. It states,
the court in which the said action was commenced may, at its discretion, at any time after the action shall be settled, discontinued or abated, on application of any person aggrieved and on good cause shown and on such notice as shall be directed or approved by the court, order the notice authorized in this section to be canceled of record, in whole or in part, by the county auditor of any county in whose office the same may have been filed or recorded.
Id. We review a trial court’s order granting a motion to cancel a lis pendens for an
abuse of discretion. Beers v. Ross, 137 Wn. App. 566, 575, 154 P.3d 277 (2007).
A trial court abuses its discretion when its order is manifestly unreasonable or
based on untenable grounds or for untenable reasons. Lindgren v. Lindgren, 58
Wn. App. 588, 595, 794 P.2d 526 (1990).
Owen’s name is the only name listed on the Property title. The trial court
previously dismissed Benshoof’s claims with prejudice and denied his motion to
amend the complaint. Because Benshoof had no legal right to title of the Property,
the trial court did not abuse its discretion in canceling the lis pendens.
11 No. 85465-8-I/12
IV
Benshoof argues the trial court abused its discretion in denying his motion
to amend his complaint because he “had valid claims and there was no undue
prejudice.” (Boldface omitted.) We disagree.
We review a decision to grant or deny a motion to amend a pleading for a
manifest abuse of discretion. Herron v. Tribune Publ’g Co., 108 Wn.2d 162, 165,
736 P.2d 249 (1987). Except in circumstances not present here, “a party may
amend the party’s pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires.” CR 15(a).
Leave to amend should be freely given “ ‘except where prejudice to the opposing
party would result.’ ” Herron, 108 Wn.2d at 165 (quoting Caruso v. Local Union
No. 690 Int’l Bhd. of Teamsters, 100 Wn.2d 343, 349, 670 P.2d 240 (1983)). In
determining prejudice, a court may consider undue delay, unfair surprise, and
futility of amendment. Haselwood v. Bremerton Ice Arena, Inc., 137 Wn. App. 872,
889, 155 P.3d 952 (2007).
Benshoof moved to amend his complaint on December 27, 2022, the same
day Owen filed her motion for summary judgment. The discovery cutoff was
January 23, 2023, the dispositive motion deadline was February 27, 2023 and trial
was set for March 13, 2023. Owen would not have had time to conduct discovery
on the newly asserted claims, nor would she have had time to address the new
claims in a dispositive motion before the existing case schedule deadlines.
Furthermore, Owen would not have had time to conduct the discovery necessary
to assert a remedy of partition as an alternative defense to Benshoof’s claim of
12 No. 85465-8-I/13
ownership. The trial court was within its discretion to conclude it would have been
prejudicial to Owen to allow an amendment.4
Additionally, Benshoof’s counsel agreed that all claims presented in the
motion to amend were governed by a three year limitation period. Wash. Ct. of
Appeals oral arg., Benshoof v. Owen, No. 85495-8-I (June 12, 2024), at 19 min.,
5 sec. to 19 min., 21 sec., https://tvw.org/video/division-1-court-of-appeals-
2024061236/?eventID=2024061236. Any amendment would have also been futile
because his new claims were time barred.
V
Benshoof argues the trial court abused its discretion in refusing to allow him
to testify at trial by Zoom. We disagree.
We review a trial court’s decision whether to permit remote testimony for
abuse of discretion. In re Marriage of Swaka, 179 Wn. App. 549, 553, 319 P.3d
69 (2014). Former CR 43(a)(1) (2021) governs the taking of testimony for this
case. Former CR 43(a)(1) provides, in relevant part,
In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.
4 Benshoof argues delay was an insufficient basis on which to deny his
motion because the trial court later continued trial. However, we review a trial court’s decision based on the record before it at the time of the motion. Ensley v. Mollmann, 155 Wn. App. 744, 759 n.17, 230 P.3d 599 (2010). Benshoof also neither argues nor shows that subsequent delays were so great that they could have altered the trial court’s analysis of prejudice.
13 No. 85465-8-I/14
Former CR 43(a)(1) contains language identical to Fed. R. Civ. P. 43(a).5 When a
federal rule parallels a Washington rule, we may look to analysis of the federal
counterpart for guidance in interpreting the state rule. Washburn v. City of Federal
Way, 178 Wn.2d 732, 750, 310 P.3d 1275 (2013). The 1996 advisory committee
note interpreting Fed. R. Civ. P. 43(a) states that “[t]ransmission cannot be justified
merely by showing that it is inconvenient for a witness to attend the trial.” The note
also addresses the types of circumstances which might establish good cause for
remote testimony:
The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place. . . . .... A party who could reasonably foresee the circumstances offered to justify transmission of testimony will have special difficulty in showing good cause and the compelling nature of the circumstances.
Id.
Benshoof does not show that the trial court had any obligation to exempt
him from CR 43 because there were outstanding warrants for his arrest whose
service he wished to continue to avoid. Because Benshoof failed to show there
were compelling circumstances to justify a departure from in-court testimony, the
trial court did not abuse its discretion by denying remote testimony.6
5 Fed. R. Civ. P. 43(a) reads, “At trial, the witness’ testimony must be taken
in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” 6 Benshoof argues in light of his choice not to attend trial “there was no
ability to present evidence supporting [his] defense to Owen’s counterclaims
14 No. 85465-8-I/15
VI
Benshoof argues the trial court erred in denying evidence of his
contributions to the Property before September 2020. We disagree.
We review evidentiary rulings for an abuse of discretion. City of Spokane
v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004). To the extent Benshoof argued
the evidence was relevant because it should be considered as a setoff to the unjust
enrichment claim, Benshoof did not affirmatively plead setoff. “ ‘Generally,
affirmative defenses are waived unless they are (1) affirmatively pleaded, (2)
asserted in a motion under CR 12(b), or (3) tried by the express or implied consent
of the parties.’ ” Henderson v. Tyrrell, 80 Wn. App. 592, 624, 910 P.2d 522 (1996)
(quoting Bernsen v. Big Bend Elec. Coop., 68 Wn. App. 427, 433-34, 842 P.2d
1047 (1993)); see also CR 8(c) (listing, among affirmative defenses, “payment.”).
Following Owen’s first amended answer asserting her counterclaims, Benshoof
filed a “response” in which he did not assert an affirmative defense of payment or
setoff against Owen’s counterclaims. The trial court limited the evidence of
monetary contributions to the Property to September 2020 forward because the
claim before the court did not warrant parsing through an accounting of credits and
debits from Benshoof and Owen from time barred periods starting in 2016. The
against him” because the trial court refused to read the portions of Benshoof’s deposition testimony that he submitted. Nothing in the record suggests Benshoof moved under ER 106, CR 32(a)(4), or any other authority to require introduction of other portions of his deposition testimony because they ought, in fairness, to have been considered with portions of his testimony that Owen offered. This claim fails under RAP 2.5(a).
15 No. 85465-8-I/16
trial court’s reasoning was tenable and thus, the trial court did not abuse its
discretion in limiting the evidence.
VII
Benshoof argues the “[t]otality of [the trial court’s] rulings indicate[] that there
was, from the beginning, a bias against Benshoof, which was continued throughout
trial.” Benshoof contends the trial court exhibited bias because it “repeatedly
referred to matters outside the record, including other litigation and any number of
prejudicial statements about Benshoof,” denied Benshoof’s motion to amend his
complaint, and did not allow Benshoof to testify by Zoom.
There is a presumption that a trial judge properly discharged their official
duties without bias or prejudice. In re Pers. Restraint of Davis, 152 Wn.2d 647,
692, 101 P.3d 1 (2004). The party seeking to overcome the presumption must
provide specific facts establishing bias. Id. Judicial rulings alone almost never
constitute a valid showing of bias. Id.
There was no evidence admitted at trial of Benshoof’s other court filings,
therefore the trial court’s references to such in its findings of fact were unsupported
by substantial evidence. To that extent, the trial court erred in making findings of
fact based on unproved court filings. However, the error was harmless. Benshoof
does not show that the trial court’s order was influenced by noting his prior
litigation. The trial court was clear it did not consider the other litigation in
determining the merits of the claims in the action, as seen in the dismissal orders
and the final findings of fact and conclusions of law. There is substantial evidence
in the record to support the trial court’s issuance of a writ of ejectment and ordering
16 No. 85465-8-I/17
that Benshoof pay Owen restitution. Benshoof has not provided specific facts
establishing that the trial judge had a bias against him, and thus fails to establish
judicial bias.
Affirmed.
WE CONCUR: