FILED June 14, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
WESLEY B. AMES and ) No. 32704-3-111 STANLEYR. AMES, ) ) Appellants, ) ) V. ) UNPUBLISHED OPINION ) DARLEEN AMES and ) ARLETA J. PARR, individually ) and jointly, ) ) Respondents. )
PENNELL, J. - Brothers Wesley and Stanley Ames appeal the dismissal of their
civil suit on the basis of standing, collateral estoppel, and judicial estoppel. We agree
dismissal should not have been ordered on these bases. Furthermore, although there are
questions about whether the Ames brothers will be able to establish causation, they
should be allowed to develop this issue in superior court. Accordingly, this matter is
reversed and remanded for further proceedings. No. 32704-3-III Ames v. Ames
FACTS
The individuals involved in this case are largely all family members. Roy and
Rubye Ames are the parents of Wesley Ames and Stanley Ames. Arleta Parr is a
daughter of Mr. and Mrs. Ames, while Darleen Ames is a daughter-in-law 1• For ease of
reference in the remainder of this opinion, these individuals are collectively referred to as
the "Ames parents" or "parents," the "Ames brothers" or "brothers," and the "Ames
sisters" or "sisters."
In 1966, the Ames parents purchased a farm in Stevens County, Washington. They
have lived on the farm since 197 6. In 1997, the parents encountered financial difficulties
and sold their farm to the Ames brothers. There was no written sale agreement. The
expectation was the parents would retain a life estate. Unfortunately, as the years passed,
the relationship between the Ames parents and the Ames brothers became strained.
Litigation ensued.
Stevens County Case
The Ames parents filed suit against the Ames brothers 2 in Stevens County for
1 Darleen is married to a third Ames brother, Randy, who was not a party to either lawsuit. 2 Though not relevant here, the Ames parents also sued their oldest daughter, Merita Dysart, along with the brothers.
2 No. 32704-3-III Ames v. Ames
breach of resulting and/or constructive trust. 3 The brothers counterclaimed, contending
their parents had a life estate in the farm. Early in the litigation, an injunction was issued
which, in relevant part, prohibited the brothers from entering the Ames farm.
After the injunction issued, the Ames brothers reviewed the insurance coverage
they maintained on the farm and learned certain assets on the property were not covered.
An insurance agent named Fran Jenne went to the farm to evaluate outbuildings for
additional coverage. It was this visit that ultimately laid the groundwork for the instant
case. There are differing accounts of what happened.
According to the Ames brothers, when Ms. Jenne arrived at the farm she received
approval to look around from the parents. Shortly after Ms. Jenne began her evaluation,
she saw a vehicle being moved to block the driveway. It had been operated by the Ames
sisters. Ms. Jenne felt uneasy. When the Ames sisters refused to move the vehicle, Ms.
Jenne locked herself in her car and called the police. A law enforcement officer arrived,
defused the situation, and Ms. Jenne left.
The sisters dispute the brothers' version of the events. According to their account,
when the sisters saw Ms. Jenne taking pictures of buildings on the farm, they believed she
3 For more extensive facts, see Ames v. Ames, 184 Wn. App. 826, 340 P.3d 232 (2014).
3 No. 32704-3-III Ames v. Ames
was at the farm at the behest of the Ames brothers in violation of the court order. The
sisters blocked Ms. Jenne's car while they attempted to find a copy of the injunction.
They were unaware their actions were inappropriate.
After the incident involving Ms. Jenne, the brothers received a notice of
nonrenewal from their insurance company. A motion for injunctive relief was
subsequently filed in the pending Stevens County case, requesting the brothers be allowed
on the farm so they could properly insure their assets.
The Stevens County court largely granted the injunctive relief requested. The
court issued an order specifying the Ames brothers could go on the farm with an
insurance agent and with accommodation from the parents. The court also ordered the
house and all buildings on the premises be insured. In its order, the court did not mention
the Ames sisters or address whether they had engaged in any misconduct either alone or
at the behest of the parents.
Trial on the ultimate issue of the parties' respective rights to the farm was held
almost a year after resolution of the motion for injunctive relief. The court ruled the
Ames parents had a life estate in the farm with full management and control over the
property, improvements, timber, and farm equipment. The court also awarded the Ames
brothers the remainder estate. The court initially ordered the parents to pay the taxes and
4 No. 32704-3-111 Ames v. Ames
the brothers to pay the insurance premiums. However, these obligations were later
reversed after the brothers complained the parents were the ones in control of the farm
and the insurance premium had increased from $800 per year to $2,800 per year because
of the state of the property.
The Ames brothers appealed the trial court's ruling. See Ames v. Ames, 184 Wn.
App. 826, 340 P.3d 232 (2014). The issues on that appeal had nothing to do with any of
the events detailed here. See id.
Present Case
While the appeal of the Stevens County case was pending in this court, the Ames
brothers filed a complaint against the Ames sisters in Spokane County, alleging tortious
interference with contract, conspiracy, and gross negligence. The superior court
dismissed the brothers' complaint with prejudice. The court held the brothers did not
have standing on their first two claims. As to the third claim alleging negligence, the
superior court held the Ames sisters were entitled to relief under theories of collateral
estoppel and judicial estoppel. The brothers now seek relief from this court.
ANALYSIS
Standing
Standing is a question of law reviewed de novo. West v. Thurston County, 144
5 No. 32704-3-111 Ames v. Ames
Wn. App. 573, 578, 183 P.3d 346 (2008). To satisfy standing, plaintiffs must show they
fall within the zone of interests protected by their claimed cause of action and that they
suffered some sort of injury in fact, economic or otherwise. Branson v. Port ofSeattle,
152 Wn.2d 862, 875-76, 101 P.3d 67 (2004). Here, the debate is over the first component
of standing: whether the Ames brothers properly fall within the zone of interest protected
by a claim for tortious interference with contract. 4 We thus focus on the nature of that
claim.
To establish a claim oftortious interference, the plaintiff must prove five elements:
( 1) the existence of a valid contractual relationship, (2) the defendant(s) had knowledge
of that relationship, (3) an intentional interference inducing or causing a breach or
Free access — add to your briefcase to read the full text and ask questions with AI
FILED June 14, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
WESLEY B. AMES and ) No. 32704-3-111 STANLEYR. AMES, ) ) Appellants, ) ) V. ) UNPUBLISHED OPINION ) DARLEEN AMES and ) ARLETA J. PARR, individually ) and jointly, ) ) Respondents. )
PENNELL, J. - Brothers Wesley and Stanley Ames appeal the dismissal of their
civil suit on the basis of standing, collateral estoppel, and judicial estoppel. We agree
dismissal should not have been ordered on these bases. Furthermore, although there are
questions about whether the Ames brothers will be able to establish causation, they
should be allowed to develop this issue in superior court. Accordingly, this matter is
reversed and remanded for further proceedings. No. 32704-3-III Ames v. Ames
FACTS
The individuals involved in this case are largely all family members. Roy and
Rubye Ames are the parents of Wesley Ames and Stanley Ames. Arleta Parr is a
daughter of Mr. and Mrs. Ames, while Darleen Ames is a daughter-in-law 1• For ease of
reference in the remainder of this opinion, these individuals are collectively referred to as
the "Ames parents" or "parents," the "Ames brothers" or "brothers," and the "Ames
sisters" or "sisters."
In 1966, the Ames parents purchased a farm in Stevens County, Washington. They
have lived on the farm since 197 6. In 1997, the parents encountered financial difficulties
and sold their farm to the Ames brothers. There was no written sale agreement. The
expectation was the parents would retain a life estate. Unfortunately, as the years passed,
the relationship between the Ames parents and the Ames brothers became strained.
Litigation ensued.
Stevens County Case
The Ames parents filed suit against the Ames brothers 2 in Stevens County for
1 Darleen is married to a third Ames brother, Randy, who was not a party to either lawsuit. 2 Though not relevant here, the Ames parents also sued their oldest daughter, Merita Dysart, along with the brothers.
2 No. 32704-3-III Ames v. Ames
breach of resulting and/or constructive trust. 3 The brothers counterclaimed, contending
their parents had a life estate in the farm. Early in the litigation, an injunction was issued
which, in relevant part, prohibited the brothers from entering the Ames farm.
After the injunction issued, the Ames brothers reviewed the insurance coverage
they maintained on the farm and learned certain assets on the property were not covered.
An insurance agent named Fran Jenne went to the farm to evaluate outbuildings for
additional coverage. It was this visit that ultimately laid the groundwork for the instant
case. There are differing accounts of what happened.
According to the Ames brothers, when Ms. Jenne arrived at the farm she received
approval to look around from the parents. Shortly after Ms. Jenne began her evaluation,
she saw a vehicle being moved to block the driveway. It had been operated by the Ames
sisters. Ms. Jenne felt uneasy. When the Ames sisters refused to move the vehicle, Ms.
Jenne locked herself in her car and called the police. A law enforcement officer arrived,
defused the situation, and Ms. Jenne left.
The sisters dispute the brothers' version of the events. According to their account,
when the sisters saw Ms. Jenne taking pictures of buildings on the farm, they believed she
3 For more extensive facts, see Ames v. Ames, 184 Wn. App. 826, 340 P.3d 232 (2014).
3 No. 32704-3-III Ames v. Ames
was at the farm at the behest of the Ames brothers in violation of the court order. The
sisters blocked Ms. Jenne's car while they attempted to find a copy of the injunction.
They were unaware their actions were inappropriate.
After the incident involving Ms. Jenne, the brothers received a notice of
nonrenewal from their insurance company. A motion for injunctive relief was
subsequently filed in the pending Stevens County case, requesting the brothers be allowed
on the farm so they could properly insure their assets.
The Stevens County court largely granted the injunctive relief requested. The
court issued an order specifying the Ames brothers could go on the farm with an
insurance agent and with accommodation from the parents. The court also ordered the
house and all buildings on the premises be insured. In its order, the court did not mention
the Ames sisters or address whether they had engaged in any misconduct either alone or
at the behest of the parents.
Trial on the ultimate issue of the parties' respective rights to the farm was held
almost a year after resolution of the motion for injunctive relief. The court ruled the
Ames parents had a life estate in the farm with full management and control over the
property, improvements, timber, and farm equipment. The court also awarded the Ames
brothers the remainder estate. The court initially ordered the parents to pay the taxes and
4 No. 32704-3-111 Ames v. Ames
the brothers to pay the insurance premiums. However, these obligations were later
reversed after the brothers complained the parents were the ones in control of the farm
and the insurance premium had increased from $800 per year to $2,800 per year because
of the state of the property.
The Ames brothers appealed the trial court's ruling. See Ames v. Ames, 184 Wn.
App. 826, 340 P.3d 232 (2014). The issues on that appeal had nothing to do with any of
the events detailed here. See id.
Present Case
While the appeal of the Stevens County case was pending in this court, the Ames
brothers filed a complaint against the Ames sisters in Spokane County, alleging tortious
interference with contract, conspiracy, and gross negligence. The superior court
dismissed the brothers' complaint with prejudice. The court held the brothers did not
have standing on their first two claims. As to the third claim alleging negligence, the
superior court held the Ames sisters were entitled to relief under theories of collateral
estoppel and judicial estoppel. The brothers now seek relief from this court.
ANALYSIS
Standing
Standing is a question of law reviewed de novo. West v. Thurston County, 144
5 No. 32704-3-111 Ames v. Ames
Wn. App. 573, 578, 183 P.3d 346 (2008). To satisfy standing, plaintiffs must show they
fall within the zone of interests protected by their claimed cause of action and that they
suffered some sort of injury in fact, economic or otherwise. Branson v. Port ofSeattle,
152 Wn.2d 862, 875-76, 101 P.3d 67 (2004). Here, the debate is over the first component
of standing: whether the Ames brothers properly fall within the zone of interest protected
by a claim for tortious interference with contract. 4 We thus focus on the nature of that
claim.
To establish a claim oftortious interference, the plaintiff must prove five elements:
( 1) the existence of a valid contractual relationship, (2) the defendant(s) had knowledge
of that relationship, (3) an intentional interference inducing or causing a breach or
termination of the relationship, (4) that defendants interfered for an improper purpose or
used improper means, and (5) resultant damage. Newton Ins. Agency & Brokerage, Inc. v.
Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 157-58, 52 P.3d 30 (2002).
The first three elements make clear the tort is intended to benefit a party to a
contract. The question for standing purposes is whether the fourth element further
restricts the scope of protected parties to those contract holders who are also direct
4 The Ames brothers do not contest the superior court's dismissal of their conspiracy claim against the sisters on the basis of standing. Accordingly, we deem that claim abandoned.
6 No. 32704-3-III Ames v. Ames
victims of a defendant's improper conduct. Here there is no dispute the Ames brothers
were a party to the insurance contract they claim was damaged. However, they were not
the direct victims of the Ames sisters' alleged unlawful imprisonment. That was Ms.
Jenne, the insurance agent. Thus, if standing requires plaintiffs to be the direct victims of
the misconduct alleged in the fourth element of their prima facie case, the claim here must
fail.
We decline to adopt such a restricted rule for seeking relief for tortious
interference with a contract. At its essence, the tort of contractual interference is aimed at
protecting the rights of a contract holder. Calbom v. Knudtzon, 65 Wn.2d 157, 162, 396
P .2d 148 ( 1964). As such, it is the contract that defines the scope of a cause of action, not
a defendant's chosen means of interference. So as long as a plaintiff would have standing
to enforce the contract, he or she has standing to sue for tortious interference.
Developments in the law oftortious interference solidify our view. Originally, a
claim of tortious interference only involved four elements. What is now the fourth
element-improper purpose or means-was not required. Pleas v. City of Seattle, 112
Wn.2d 794, 800, 77 4 P .2d 115 8 (1989). Instead, evidence of defendants' ill will or
misconduct was simply relevant to overcome a defense of privilege. Id. This allocation
of proof was criticized as being too favorable to plaintiffs. Thus, following the lead of
7 No. 32704-3-III Ames v. Ames
j l the second Restatement of Torts, our Supreme Court adopted what is now the fourth
I element, requiring plaintiffs to prove not only that defendants intentionally interfered with
II a contract interest but also that they did so for an improper purpose or by using improper
means. Id. at 804. This resetting of the scales was intended to ease the burden faced by I l 1 defendants. However, it was not intended to impact a contract holder's standing to sue.
I Under the early version of the tort, all that was required was a plaintiff be a party to the
contract at issue. The same is true now.
Because the Ames brothers were parties to the insurance contract and would have
had standing to enforce the contract, they had standing to bring a claim of tortious
interference.
Collateral Estoppel
Issues of collateral estoppel are reviewed de novo. Christensen v. Grant County
Hosp. Dist. No. 1, 152 Wn.2d 299,305, 96 P.3d 957 (2004). Collateral estoppel, also
known as issue preclusion, "promotes the policy of ending disputes by preventing the
relitigation of an issue or determinative fact after the party estopped has had a full and
fair opportunity to present a case." McDaniels v. Carlson, 108 Wn.2d 299, 303, 738 P.2d
254 (1987). Among other prerequisites, a party asserting collateral estoppel must show
the issue to be precluded has actually been litigated and necessarily determined in a prior
8 No. 32704-3-III Ames v. Ames
action. Shoemaker v. City ofBremerton, 109 Wn.2d 504, 508, 745 P.2d 858 (1987).
As proponents, the Ames sisters bear the burden of establishing collateral estoppel.
They argue collateral estoppel applies to the issue of whether they were acting as agents
of their parents at the time they allegedly interfered with the brothers' contract. 5 We
disagree. No agency determination was ever made in the Stevens County case. The
judge there simply ruled, without finding fault on either side, that the brothers were
entitled to access the family property for purposes of obtaining insurance. Given the
brothers' remainder interest in the property, the court correctly found they were entitled to
take steps to insure the property, regardless of whether they had been wrongfully denied
the ability to do so in the past. The Stevens County court did not need to find, and indeed
did not find, an agency relationship in order to rule on that issue. 6
5 The superior court's order does not identify the exact issue that is subject to preclusion. Because the sisters' arguments are confined solely to the issue of agency, ours is as well. We can discern no other issue that might be amenable to an argument of preclusion. 6 Even if a determination had been made on agency, that finding alone would not preclude the brothers' claim. In order for collateral estoppel to apply, the Stevens County court would not only have needed to make a finding regarding agency but also of wrongdoing. If the Stevens County court had decided the sisters were acting as agents of the parents (who were parties to the suit) but there had been no wrongdoing, then that finding could be used defensively by the sisters in this case. However, there was neither a finding of agency nor wrongdoing. Thus, the defense of collateral estoppel does not apply.
9 No. 32704-3-III Ames v. Ames
Judicial Estoppel
This court reviews a trial court's decision with respect to the application of judicial
estoppel for abuse of discretion. Anfinson v. FedEx Ground Package Sys., Inc., 174
Wn.2d 851,860,281 P.3d 289 (2012). '"A trial court abuses its discretion when its
decision or order is manifestly unreasonable, exercised on untenable grounds, or
exercised for untenable reasons."' Id. (quoting Noble v. Safe Harbor Family Pres. Trust,
167 Wn.2d 11, 17,216 P.3d 1007 (2009)).
'" Judicial estoppel is an equitable doctrine that precludes a party from asserting
one position in a court proceeding and later seeking an advantage by taking a clearly
inconsistent position."' Id. at 861 (quotingArkison v. Ethan Allen, Inc., 160 Wn.2d 535,
538, 160 P.3d 13 (2007). The two primary purposes behind the doctrine are the
preservation of respect for judicial proceedings and the avoidance of inconsistency,
duplicity, and waste of time. Id.
The sisters' judicial estoppel argument fails because there is no inconsistency
between the brothers' current position and the one taken in Stevens County. The fact that
the brothers have chosen to sue the two sisters is not inconsistent with their prior claim of
agency. This is because an agent can be held responsible for wrongful conduct apart from
any responsibility by the principal. RESTATEMENT (THIRD) OF AGENCY§ 7.01 cmt. b
10 No. 32704-3-III Ames v. Ames
(2006); see Annechino v. Worthy, 175 Wn.2d 630,638,290 P.3d 126 (2012) (citing with
approval this concept from the Restatement).
Even if there were some tension between the brothers' current allegations and
those made in Stevens County, judicial estoppel would still be inappropriate. A
prerequisite for judicial estoppel is that a litigant's prior inconsistent position must have
somehow benefitted the litigant in the prior proceeding or been accepted by the court.
Taylor v. Bell, 185 Wn. App. 270, 282-83, 340 P.3d 951 (2014). This condition is not
satisfied here. Nothing in the Stevens County court record indicates the judge relied on
the brothers' assertions of agency, either at the time of the injunction hearing or later.
The Stevens County court's decisions with respect to insurance obligations were
governed by the parties' respective interests in, and access to, the family farm. It was not
dependent on a finding of fault or agency.
During the Spokane County proceedings, the court's judicial estoppel analysis
rested, at least in part, on the concern that allowing the brothers' lawsuit to go forward
would work an injustice because they should have joined the sisters in the Stevens County
proceeding. Whatever concerns there may be regarding the possibility of vexatious
11 No. 32704-3-III Ames v. Ames
litigation or harassment, 7 application of judicial estoppel was not the appropriate sanction.
The Stevens County case was essentially a declaratory action to define the parties' rights
with respect to the Ames family farm. The misconduct allegations against the sisters
were not relevant to this determination. However, if the brothers had lost their suit in
Stevens County and been denied any interest in the family farm, then they would have had
no realistic cause of action against the sisters. Without a legal interest in the farm, the
brothers would be unable to establish any right to access the farm for purposes of
obtaining insurance. Whatever its merits, the current suit follows logically from the
Stevens County court's determination that the brothers have an interest in the property.
Causation
While this matter should not have been dismissed on issues of standing or
estoppel, the court has concerns about causation. The notice of nonrenewal regarding the
brothers' insurance contract states the policy was being terminated because the farm
lacked upkeep and the residence was missing large portions of siding and paint. The
notice did not indicate the contract was cancelled because of the incident involving the
Ames sisters. During oral argument in superior court, counsel for the sisters repeatedly
7 The brothers' protestations against such allegations are not assisted by the inflammatory language used against the sisters' counsel in their briefing.
12 No. 32704-3-III Ames v. Ames
asserted the brothers lacked evidence of causation. Subsequent to submitting this case
without oral argument, this court requested briefing on whether this matter should be
resolved on the issue of causation.
In their briefing, the brothers claim they possess sufficient evidence of causation
and ask to be able to develop this issue in superior court. While we have some
reservations about whether the brothers will be able to meet their burden, we agree
resolution at this time is premature. Because causation was not directly litigated in
superior court, the brothers should be given an opportunity to develop the factual record
prior to any ultimate resolution of their claims.
Attorney Fees
At this point, neither side has established appropriate grounds for attorney fees. 8
However, on remand the prevailing party may ask for an award of reasonable attorney
fees, including for fees incurred in this appeal.
CONCLUSION
Based on the foregoing, the superior court's judgment dismissing the Ames
brothers' complaint is reversed. This matter is remanded for further proceedings not
8 While the brothers have prevailed on this appeal, they did not make a request for fees in compliance with RAP 18.l(b).
13 No. 32704-3-III Ames v. Ames
inconsistent with this decision.
A majority of the panel has determined 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.
Pennell, J.
WE CONCUR:
Lawrence-Berrey, A . .J. d}dhw~, ~ oway,J.