       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 JAMES FAIRE and ANGELA FAIRE,                       No. 79130-3-I
 and the marital community thereof,
                                                     DIVISION ONE
                                Appellants,

               v.                                    UNPUBLISHED OPINION

 RICHARD ALAN FINEGOLD,

                                 Respondent.

 GEORGE ABRANTES, MICHAEL ST.
 PIERRE, RUTH BROOKS, the ESTATE
 OF DEBRA LONG, a/k/a DEBRA
 JAMES,

                                  Defendants.        FILED: November 12, 2019


       SMITH, J.    —   James and Angela Faire appeal the trial court’s order of

summary judgment dismissing their claims against Richard Finegold. The Faires

contend they have demonstrated that there are genuine issues of material fact

precluding dismissal on summary judgment of their claims that Finegold

participated in a conspiracy with the other defendants to harm the Faires,

assaulted the Faires, intentionally inflicted severe emotional distress on the

Faires, and converted personal property belonging to the Faires. The Faires also

claim there are genuine issues of material fact concerning whether Finegold was
No. 791 30-3-1/2


unjustly enriched because the Faires maintained and improved Finegold’s real

property and Finegold refused to compensate them.

        We conclude that there are genuine issues of material fact precluding

summary judgment on the Faires’ claim that Finegold converted belongings the

Faires had stored, with permission, on Finegold’s land. The Faires’ personal

property was not returned to them when they went to Finegold’s property to

retrieve it, or at any time after that.

        As to the Faires’ other claims, we conclude that there are no genuine

issues of material fact and Finegold is entitled to summary judgment.

Accordingly, we affirm the dismissal of the Faires’ claims for conspiracy, assault,

intentional infliction of emotional distress, and unjust enrichment. We reverse the

court’s decision dismissing the Faires’ claim for conversion and remand for

further proceedings.

                                         BACKGROUND

        This case arises from a series of interactions between the Faires,

Finegold, and several of Finegold’s friends and acquaintances, which culminated

in a violent confrontation on June 18, 2015. All of the parties were associated, in

one way or another, with Michele St. Pierre. The Faires had known Michele1

since 2008 and Finegold, her romantic partner, since 2009. The other parties

include Michele’s brother, Michael St. Pierre; her two friends, Ruth Brooks and




        1 One of the defendants is Michael St. Pierre, the brother of Michele St. Pierre. For clarity,
we refer to Michele St. Pierre as “Michele.”

                                                      2
No. 79130-3-1/3


Debra Long; and George Abrantes, who rented a room in Michele’s Stanwood

home.

        Michele was diagnosed with cancer in July, 2014, and in the months that

followed, her friends and family came to her home to provide care and other

assistance. Brooks came from Tennessee to stay with her on several occasions

between August, 2014 and June, 2015. St. Pierre, Michele’s brother, joined her

around February, 2015. Between February and April, 2015, the Faires stayed

with Michele to help care for her and maintain her home. Long helped Michele

put one or two properties she owned into trusts, and she assisted Michele in

drafting a new will. At some point in the spring of 2015, Long began staying at

Michele’s home, as well.

        Two years before Michele’s diagnosis, Finegold purchased property

outside Tonasket, Washington, at 36 E. Sourdough Road (Sourdough property).

He and Michele stayed there at times, though they did not live there after Michele

became ill. In 2014, with Finegold’s written permission, the Faires began storing

a dump truck, a flat-bed trailer, some solar panels, industrial batteries, and other

equipment at the Sourdough property. The Faires estimate the total value of

their personal property stored at Sourdough to exceed $75,000. The Faires also

claim that after Michele became ill, Finegold asked them to maintain the

Sourdough property for him and they did so. Additionally, the Faires assert that

they sought permission from Michele and Finegold to stay in the house on the

Sourdough property in the autumn of 2014; Michele and Finegold gave them

permission, and they lived there for a few months in late 2014.


                                             3
No. 79130-3-1/4


       The Faires state that in April 2015, they entered into negotiations with

Finegold to purchase the Sourdough property. Long was asked to create lease-

to-own documents once Finegold and the Faires agreed on terms. The Faires

changed their minds, however, and on Friday, June 12, 2015 they purchased

vehicle tabs and a trip permit so that they could retrieve the dump truck, flatbed

trailer, solar panels and other equipment they had been storing on the

Sourdough property.

       Finegold admits he gave the Faires written permission to store some

personal belongings on the Sourdough property. Finegold denies, however, the

Faires’ other claims involving the Sourdough property: that he discussed

maintaining the Sourdough property with the Faires; that they did any

maintenance or made any improvements; that he or Michele gave the Faires

permission, express or implied, to stay in the house on the Sourdough property;

or that there were any discussions or negotiations with the Faires about selling

the property to them.

       Michele died on June 15, 2018 in the early morning. At the time of her

death, Finegold, Brooks, Michael St. Pierre, Abrantes, and Long were all with her

in Stanwood. The Faires were not present when Michele died and did not know

about her death. However, when they met Long that evening for dinner, she did

not tell the Faires that Michele had died; in fact she told them Michele was still

alive. The Faires told Long at this dinner that they were no longer interested in

buying the Sourdough property and did not want their lease-to-own proposal to

go any further.


                                             4
No. 79130-3-1/5


       When Long returned to the Stanwood home after the dinner, she reported

to Finegold and the others staying there that the Faires were either already

“squatting” on the Sourdough property or were intending to go there and move in

as soon as the upcoming weekend. According to Brooks, Long also reported to

the group that the Faires had disparaged Michele. Based on Long’s assertions

that the Faires were likely to go to the Sourdough property within a few days,

Finegold followed her recommendation to go over to the property before the

Faires did, secure it and change the door locks.

       On June 17, 2015, Finegold and the other defendants went to the

Sourdough property. The last time Finegold had been to the Sourdough property

was in September, 2014. When the group arrived, Finegold saw that the house

was locked up, there were no broken windows, and no signs of forced entry.

Inside, however, Finegold found items that did not belong to him, including food,

liquor, kitchen dishes and appliances, canning equipment, two computers, and

some housekeeping items. The presence of an additional satellite dish and two

extremely large and heavy batteries led Finegold to suspect that whoever had

been there was not a short-term visitor.

       Finegold suspected the Faires had been occupying the house, but he did

not know how recently they had been there. Although Finegold was not inclined

to call the police, Long convinced him to call 911 and to report there had been a

possible break-in and someone squatting at the Sourdough property. Long

coached Finegold to report a burglary, as well. Finegold reported that things

belonging to other people were in his house, while some of his belongings had


                                            5
No. 79130-3-116


been taken.2 Finegold later said that he would not have called 911 had Long not

talked him into it.

        A sheriff’s deputy came to the Sourdough property in response to the 911

call, took a statement from Finegold and looked at the items in the house that

Finegold said were not his property. The deputy instructed the entire group to

call the sheriff’s office immediately if the Faires showed up while they were still

there, so that someone from the sheriff’s office could interview the Faires and

investigate Finegold’s squatting complaint.

        The next day, June 18, 2015, the Faires drove from the west side of the

Cascades to the Sourdough property. They did not know that Finegold, St.

Pierre, Long and Abrantes were already at the Sourdough property. With them,

driving his own truck, was Boyd McPherson, a recent acquaintance who had

agreed to help the Faires retrieve their personal property from the Sourdough

property.

        At some point that same morning, Finegold learned from a friend of the

Faires, Jody Pries, that the Faires were on their way to the Sourdough property

and intended to remove their personal belongings. Pries had come to the

Sourdough property to drop off some industrial batteries that belonged to the

Faires so that they could collect those, as well. Once Finegold learned that the

Faires were on their way over, the group discussed whether to call 911 and ask

        2 ~ is not clear from the record whether, at the time Finegold called the police on June 17,

2015, he believed anything he owned was missing from his house on the Sourdough property.
When he was interviewed in October, 2016 Finegold said that several security cameras were
missing, and that his toaster oven had been “removed from the kitchen.” However, there were no
signs that two outbuildings had been broken into and a closet containing several firearms was
locked and undisturbed.

                                                     6
No. 79130-3-1/7


for an officer to be there when the Faires arrived. Long did not want to call 911 in

advance; she wanted to wait until the Faires arrived and then call the police.

       According to Brooks, Long proposed that when the Faires arrived, they be

given notice that they were not welcome and that arrangements would be made

for the Faires to return and remove their personal property. Abrantes, like Long,

favored the idea of confronting the Faires. Abrantes had purchased a new

padlock and chain, ostensibly so Finegold could lock the gate at the entrance to

the property, thus preventing the Faires from coming onto the Sourdough

property at all. But the padlock and chain were not used to secure the gate,

because the decision had been made to let the Faires come onto the property.

       Brooks was opposed to the idea of confronting the Faires. She believed it

would end badly, and she preferred that the police be there before the Faires

arrived to handle the situation.

       Finegold claims that he did not want a confrontation with the Faires, but

that both Long and Abrantes insisted that he “stand up” to the Faires. Finegold

understood that Long’s plan entailed holding the Faires on the property until law

enforcement arrived. He later said that Abrantes and Long had been goading

him into a confrontation.

       The group’s two cars were moved out of the driveway and into a field a

short distance from the house and one of the outbuildings. Brooks and Finegold

both later admitted that the cars were moved so that they would not be visible

from the driveway, though neither of them said what purpose that served. In

addition, Long put the two computers Finegold had found in the house in


                                            7
No. 79130-3-1/8


Finegold’s car. Finegold said Long wanted the computers to be available to be

used as a bargaining chip to get the Faires to move off the Sourdough property.

        Finegold asserts that when he saw the Faires approaching in their vehicle

from a distance, he became anxious about confronting them, so he left the house

through the back door and ran to a neighbor’s home about an eighth of a mile

away. From there, he called 911.~ Finegold, therefore, was not at the

Sourdough property when the Faires drove in, and he did not see anything that

happened after they arrived. The Faires were gone by the time he returned to

the Sourdough property.

          The Faires drove up the drive and into the loop at the end of the

driveway. As soon as James Faire stepped out of the truck, Abrantes and Long

rushed toward him, and Faire realized he and his wife were being ambushed.4

Abrantes wielded a length of heavy chain with a large padlock on the end, which

he was swinging, and both Long and Abrantes were screaming at Faire. Faire

retreated back into the truck.

        McPherson had pulled into the drive immediately behind the Faires, and

saw what occurred from a distance of 35 to 40 feet. From his perspective,

James Faire was trying to drive away but was blocked: Long stood in front of the

truck; Abrantes was at the driver’s side, smashing the windows and side mirror

with the chain and padlock; and St. Pierre ran to the rear of the truck. All three


        ~ Finegold could have called 911 from his own telephone in the house.
        ~ Because this appeal involves only Finegold, and not the other defendants, the full details
of the events that occurred are of limited relevance to this appeal. This summary is based on the
accounts of James Faire, McPherson, and Brooks. However, many details and differences in the
accounts are omitted.

                                                     8
No. 79130-3-1/9


were screaming at the Faires, yelling accusations and profanities. James Faire

was also hindered by huge boulders along the driveway and loop. Each time

James Faire tried to either back up or move forward, he was blocked.

        Brooks stood at the edge of a walkway that connected with the driveway.

Abrantes had tossed her his cell phone as he ran toward the truck and told

Brooks to video record what happened, but she could not get the video to work.

She did not participate in confronting the Faires, and McPherson heard her say

several times, “He needs notice. He needs to be given notice.” Like McPherson,

Brooks saw Long go in front of the truck to keep the Faires from leaving, and she

saw Abrantes swinging the chain at the truck. Abrantes and St. Pierre were both

yelling at the Faires.

       At some point during the confrontation, Abrantes’ broke the driver’s side

mirror. James Faire, continuing in his attempts to get around the people blocking

his way, hit and severely injured Abrantes with his truck. He also struck Long

with his truck, running her over and killing her.

       From McPherson’s perspective, it appeared the Faires was attempting to

veer to the right to get around people in his way when Abrantes “just fell down in

the road” near the front corner of the vehicle. After Abrantes went down,

McPherson said that he could not see Long, and then suddenly he saw her under

the truck. Faire kept driving off the property, and McPherson followed by a

different route.

       From Brooks’ perspective, Long was standing in front of the truck when

Abrantes smashed the mirror, and then the truck lurched forward into Long.


                                              9
No. 791 30-3-1/10


Long faltered and began to fall. The truck then ran over her. She could see

Long under the truck as the truck backed up, and then the truck went forward

and ran over her again and kept going. She did not have a good view of

Abrantes, though she did see him fall.

        The Faires and McPherson drove into Tonasket and stopped around the

junction of U.S. Route 97 and State Route 20. There, the Faires called 911.

James and Angela Faire were arrested and taken into custody. James Faire was

charged with vehicular homicide and vehicular assault and was held in jail from

June 18, 2015 until he was released on personal recognizance on February 19,

2016. Ultimately, the charges were dismissed with prejudice in July, 2018, based

on prosecutorial misconduct.5

        The Faires filed an amended complaint against Finegold, Abrantes,

St. Pierre, Brooks, and the Estate of Debra Long in November 2017. Finegold

filed both an answer and a motion for summary judgment on December 19, 2017.

Faire filed a timely response, and after hearing oral argument the court granted

Finegold’s motion for summary judgment on February 5, 2018. In the order

granting summary judgment, the court indicated, as required by RAP 9.12, that it

relied on Finegold’s Motion, the Faires’ Response, and Finegold’s Reply, as well

as declarations of Finegold and Faire. Although the court’s order does not

        ~ The court takes judicial notice that James Faire was charged in Okanogan County
Superior Court with vehicular homicide for the death of Debra Long and vehicular assault for striking
George Abrantes. Statev. Faire, No. 15-1-00202-1 (Okanogan County Super. Ct., Wash.), a~eal
dismissed, No. 36249-3-Ill (Ct. App. July 10, 2019). The case was dismissed with prejudice in
August 2018 due to prosecutorial misconduct and a Brady violation (Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). ~ Findings of Fact, Conclusions of Law & Mem.
Op. Granting Def.’s Mot. to Dismiss, Faire, No. 15-1-00202-1 (Okanogan County Super. Ct., Wash.
Aug. 9, 2018).


                                                     10
No. 79130-3-I/Il


identify any exhibits attached to either of the declarations, Faire’s declaration

includes an exhibit list indicating the declaration incorporated interview

transcripts of Finegold, Brooks, McPherson, Abrantes, and St. Pierre.6 The court

did not enter findings of fact or conclusions of law. Judgment was entered on

October 10, 2018.

        The Faires appeal.
                                         DISCUSSION
                                      Standard of Review
        On appeal from an order granting summary judgment, the standard of

review is de novo, and the appellate court performs the same inquiry as the trial

court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).

Summary judgment is appropriate when the pleadings, affidavits, and depositions

establish that there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. CR 56(c); Lybbert, 141 Wn.2d at

34. A “material fact” is one on which the outcome of the litigation depends in

whole or in part. Bociuch v. Landover Corp., 153 Wn. App. 595, 610, 224 P.3d

795 (2009). In determining whether a genuine issue of material fact exists, we

view all facts and reasonable inferences in the light most favorable to the

nonmoving party. Modumetal, Inc., v. Xtalic Corp., 4 Wn. App. 2d 810, 822, 425

P.3d 871 (2018).

        A defendant may move for summary judgment by showing that there is an

absence of evidence to support an essential element of the plaintiff’s case.

        6 Not all of these pleadings and exhibits are before this court. The clerk’s papers identified
by the parties and submitted to the court omit transcripts of the interviews of Abrantes and St.
Pierre, as well as Finegold’s Reply memorandum.

                                                      11
No. 79130-3-1/12


Boquch, 153 Wn. App. at 609 (internal quotation marks and citations omitted).

To avoid summary judgment, the plaintiff must make out a prima fade case

concerning the essential element of the claim. Boguch, 153 Wn. App. at 609. If,

at this point, the plaintiff fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial, then the trial court should grant the motion.

Boc~uch, 153 Wn. App at 609 (internal quotation marks and citations omitted).

       The party resisting summary judgment may not rely on the allegations in

the pleadings, but must set forth specific facts by affidavit or otherwise that show

a genuine issue exists. Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198,

831 P.2d 744, 745 (1992). Bare assertions that a genuine material issue exists

do not constitute facts sufficient to defeat a motion for summary judgment.

SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40 (2014) (citation and

internal quotation marks and citation omitted). “[A]n affidavit opposing summary

judgment must (1) be made on the affiant’s personal knowledge, (2) be

supported by facts admissible in evidence, and (3) show that the affiant is

competent to testify to the matters therein.” SentinelC3, 181 Wn.2d at 140; CR

56(e). To be sufficient to defeat summary judgment, a party’s affidavit must

present more than ultimate facts, conclusory allegations, speculative statements,

opinions, or argumentative assertions. Grimwood v. Univ. of Puqet Sound, Inc.,

110 Wn.2d 355, 359-60, 753 P.2d 517 (1988); Las, 66 Wn. App. at 198.




                                              12
No. 79130-3-1/13


                       Failure to Comply with Rules of Appellate Procedure

       Finegold argues that the Faires have failed to meet their burden to set

forth specific facts identified in the record showing the existence of genuine

issues of material fact. Instead, Finegold asserts the Faires rely on “wild

allegations,   .   .   .   conjecture, unsupported assertions, and baseless conclusions,”

and they have also failed to comply with RAP I 0.3(a)(5), which requires appeal

briefs to include references to the record for each factual statement.

       The Faires, in their reply assert that their opening brief included 104

citations to the record. More to the point, the Faires also resubmitted their

statement of facts with more complete citations to the record for record.

       The Faires rely almost exclusively on the Declaration of James Faire and

three attached exhibits, which are transcripts of unsworn interviews of Finegold,

Brooks, and McPherson. The Faires refer to these transcripts as “statements

against interest.” A statement against interest, however, is admissible as an

exception to the hearsay rule only if the witness is unavailable to testify, which

the Faires have not attempted to demonstrate. ER 804(b)(3). Furthermore, the

rule does not render an entire interview transcript admissible simply because

some of the statements within it are against the declarant’s self-interest. Only

the particular statements or remarks in the interview that are meet the criteria of

ER 804(b)(3) are admissible under the rule. State v. Roberts, 142 Wn.2d 471,

493-94, 14 P.3d 717 (2000) (adopting a narrow definition of “statement” for

purposes of ER 804(b)(3), as held in Williamson v. United States, 512 U.S. 594,

599, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994)). The Faires have not attempted


                                                     13
No. 79130-3-1/14


to isolate those statements made by Brooks, and McPherson in their interviews

that qualify under the appropriate application of ER 804(b)(3).

       Finegold’s interview transcript is admissible under a different rule. His

statements are admissions by a party-opponent, which are not hearsay at all.

ER 801 (d)(2). But Finegold has neither raised nor argued the admissibility of the

interview transcripts of Brooks and McPherson, nor does it appear from the

record before us that he objected to their consideration by the trial court. For that

reason, we do not exclude the interview transcripts attached to James Faire’s

declaration.

                                     Consriracy

       To establish a civil conspiracy, the Faires “must prove by clear, cogent,

and convincing evidence that (1) two or more people combined to accomplish an

unlawful purpose, or combined to accomplish a lawful purpose by unlawful

means; and (2) the conspirators entered into an agreement to accomplish the

conspiracy.” All Star Gas, Inc. v. Bechard, 100 Wn. App. 732, 740, 998 P.2d 367

(2000). “Mere suspicion or commonality of interests is insufficient to prove a

conspiracy.” All Star Gas, 100 Wn. App. at 740 (internal quotation marks and

citation omitted). If the facts and circumstances the plaintiff relies on to establish

a conspiracy are as consistent with a lawful or honest purpose as with an

unlawful undertaking, they are not sufficient. All Star Gas, 100 Wn. App. at 740.

       The Faires claim that the facts recited by James Faire in his declaration

show that Finegold conspired with Long and others to harm the Faires. They

allege various objectives of the conspiracy, including wrongfully keeping the


                                             14
No. 79130-3-1/15


Faires’ personal property, which they value at $75,000; falsely reporting to the

police that the Faires had broken into Finegold’s house and were squatting there;

and ambushing and murdering the Faires. The Faires contend that a

combination of Finegold’s actions in concert with the others, including making

false statements to the police, moving his car to a spot where it was not visible

from the driveway, and running to a neighbor’s house to call the police are proof

of both a secret agreement to kill the Faires and of Finegold’s intent to ensure

only Long and Abrantes would be held responsible for the murders. In addition,

they argue that Finegold admitted his participation in the conspiracy when he

conceded during his interview on October, 27, 2016 that his report to the County

Sheriff was false.

       Contrary to the Faires’ argument, the record does not demonstrate the

existence of the essential elements of conspiracy, and the Faires have failed to

show there are material facts in dispute. The Faires present no evidence of that

Finegold entered into an agreement to try to harm the Faires physically or to

wrongfully deprive them of their property. James Faire’s assertions that

Finegold, Long, Brooks, St. Pierre, and Abrantes agreed to engage in a violent

plot against them is complete speculation. In fact, the only citations to the record

in support of the Faires’ conspiracy allegations refer to James Faires’ bald

assertions in his own declaration. The Faires did not refer to a single page of the

witness interview transcripts in support of their conspiracy claims, and James

Faire has no personal knowledge on which to base the claim that Finegold

agreed with anyone to cause any harm to the Faires.


                                            15
No. 791 30-3-1/16


       To the extent the record demonstrates plans or intentions to do anything

at all, it tends to show that some people, such as Brooks, heard a conversation

about and therefore believed there was a plan to give the Faires some kind of

notice to stay off the property, preferably with the police at the scene. The record

plainly shows that Abrantes engaged in violence and attacked the Faires’ truck

while they were inside it. The record is silent as to whether Abrantes acted in

accord with an agreement or plan, and if so, with whom.

       The Faires also argue that Finegold conspired with the others to make

false statements to the police about the Faires. For example, the Faires claim

that Finegold called 911 and told the police there had been a break-in at the

house on the Sourdough property, in spite of the absence of signs of a break-in,

at Long’s behest. They assert that when Finegold was interviewed in October,

2016, he admitted he had lied to the police on June 17, 2015. The Faires then

argue that Finegold’s admission of lying to the police is in fact an admission of

his participation in the conspiracy.

       The Faires do not provide a citation to the transcript of Finegold’s

interview in support of these claims, and they read far more into Finegold’s

interview than the transcript supports. When Finegold was interviewed, he did

not admit to falsely reporting a break-in to the police. He said he did not think he

had phrased it as a break-in; he thought he had said it was a burglary. He did

admit to being coached by Long to report a burglary. Counsel for the Faires then

asked Finegold if Long had coached him to say things had been taken, but when




                                            16
No. 79130-3-1/17


Finegold asked to have the question repeated, counsel rephrased it as an open-

ended question:
              [COUNSEL:] How did she coach you? What kinds of things
       did she say?
             [FINEGOLD:]Well, she said that      --   that I needed to report it,
       otherwise   --



              [COUNSEL:] To report what?
             [FINEGOLD:] That they had that their stuff was there and
                                            --


       some of my stuff had been removed from the house.
              [COUNSEL:] What of your stuff had been removed?
               [FINEGOLD:] Well, my toaster oven had been removed from
       the kitchen. And I don’t remember what else had been removed from
       the house.


              One other thing that was missing from the house that I still
       haven’t been able to find is security equipment. There were four
       security cameras, of which I’ve only been able to find one. I don’t
       know why they were moved, the security cameras.
The only other admission Finegold has made about the call to the police is in his

answer to the complaint, in which he states he reported a “possible break-in.”

And Finegold also explained that he had good reasons to call 911, considering

that he had not given the Faires permission to stay in the house at the

Sourdough property. Far more importantly, Finegold noted in his answer to the

amended complaint that the transcript of the 911 call would speak for itself, as

would any reports written by the police. The court agrees. The Faires, of course,

were not present when Finegold called and then met with the police the day

before the Faires arrived at the Sourdough property. James Faire cannot have

personal knowledge of what Finegold reported to a 911 dispatcher, and

characterizing the entire report as false does not amount to proof of a conspiracy.


                                            17
No. 791 30-3-1/18


          The Faires also argue that Finegold acted in furtherance of the conspiracy

by planning to run to his neighbor’s house to call 911 “to leave responsibility for

the deaths of [the Faires] on Long and Abrantes.” This argument actually

undermines the notion that the defendants shared a plan to harm the Faires.

Finegold’s call to 911 is at least equally consistent with Finegold not having any

intent to harm the Faires as it is with Finegold intending both to harm them and to

set up his friends.

       The Faires rely on speculation, supposition, and conclusory statements to

support their claims of conspiracy to kill them or to harm them. Construing the

factual record in the light most favorable to the Faires, we find that the

circumstances here are not inconsistent with a lawful or honest purpose. See,

John Davis & Co., v. Cedar Glen # Four, Inc., 75 Wn.2d 214, 224, 450 P.2d 116

(1969).

       Summary judgment on this claim is affirmed.

                                       Assault

       An assault is an attempt to unlawfully use force or inflict bodily injury on

another, accompanied by the apparent present ability to give effect to the attempt

if not prevented. Brower v. Ackerly, 88 Wn. App. 87, 92, 943 P.2d 1141 (1997).

The Faires allege that they were assaulted by Long, Abrantes, and St. Pierre,

and that Finegold is liable for conspiring with the perpetrators because he (a)

made a false report to the police the day before; (b) left the gate to the property

unlocked; (c) moved his car to a place where it could not be seen from the

driveway; and (d) ran next door to call 911 when he knew the Faires were


                                              18
No. 79130-3-1119


arriving.7 The Faires contend that Finegold’s actions were designed to lure them

onto the property and to create an alibi for himself for the harm he anticipated

would be done to the Faires.

        The Faires have not made out a prima facie case of assault against

Finegold. It is undisputed that Finegold was not on the Sourdough property

when the Faires arrived and that he did not participate in the assault on them.

The claim that Finegold lured the Faires onto the Sourdough property by leaving

the gate unlocked is entirely at odds with their account of their prior unimpeded

access to the property and their plan to go there to retrieve their equipment and

belongings. The Faires and McPherson expected that no one else would be at

the Sourdough property on June 18, 2015, and at the same time, the Faires must

have known they would be able to enter the property when they arrived, just as

they had on prior occasions. Thus, finding the gate unlocked could not have

been a lure. If, on previous visits to the property, the Faires gained access by

unlocking the gate, then finding it unlocked on June 18, 2015 would have put

them on notice that others were on the property.

        Finegold’s decision to move the vehicles away from the driveway is as

consistent with lawful purposes as with unlawful ones, and the Faires present no

evidence of an unlawful purpose. The Faires further speculate when they claim

that Finegold ran to his neighbor’s property to call the police in order to create an

alibi for himself. There is not a single fact in the record to support this allegation.


        ‘   The Faires also argue that the conspiracy to commit assault is ongoing. This contention
fails for the same reasons that the conspiracy claim fails.

                                                    19
No. 791 30-3-1/20


Viewing the facts most favorably to the Faires, the record does not support the

Faires’ claim that Finegold participated in the assault against them, nor does it

demonstrate the existence of genuine issues of material fact.

       Summary judgment on this claim is affirmed.

                      Intentional Infliction of Emotional Distress

       To prove outrage, the Faires must establish the following elements:

(1) extreme and outrageous conduct, (2) intentional or reckless infliction of

emotional distress, and (3) the actual result of severe emotional distress to the

plaintiff. Kloepfel v. Bokor, 149 Wn.2d 192, 195, 66 P.3d 630 (2003). The Faires

argue that Finegold is liable to them for intentional infliction of emotional distress

because he entered into a conspiracy to murder them, and took specific steps in

furtherance of the conspiracy, including: making false statements to the police

the day before; leaving the gate to the property unlocked; moving his car so it

would not be visible from the driveway; failing to call the police when he knew the

Faires were arriving; and establishing a justification for taking violent action

against the Faires.

       The Faires again fail to support this claim with sufficient evidence in the

record. We have already addressed the conspiracy claim and concluded that it

was properly dismissed. The other acts alleged, stripped of the Faires

speculation and conclusory statements concerning Finegold’s purposes or

motives, do not meet the test of being “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.” Kloerfel,


                                              20
No. 79130-3-1121


149 Wn.2d at 196 (emphasis omitted) (internal quotation marks and citation

omitted).

       Summary judgment on this claim is affirmed.

                                     Conversion

       The Faires claim that Finegold converted their personal property that was

stored, with Finegold’s permission, on the Sourdough property. Conversion is

the unjustified, willful interference with a chattel which deprives a person entitled

to the property of the possession of it. In re Marriage of Langham, 153 Wn.2d

553, 564, 106 P.3d 212, 218 (2005) (quotation marks and citation omitted). It is

a derivative of the common law action of trover, “which redressed an interference

with one’s interest in a chattel that was substantial enough to justify compelling

the wrongdoer to pay for it as in a forced sale.” Potter v. Wash. State Patrol, 165

Wn.2d 67, 78, 196 P.3d 691 (2008). A chattel is personal property, as

distinguished from real property; it is property that is transferable and moveable.

Langham, 153 Wn.2d at 564-65. The plaintiff need not prove the defendant’s

knowledge or intent to establish conversion. Judkins v. Sadler-MacNeil, 61

Wn.2d 1, 3-4, 376 P.2d 837 (1962).

       The Faires contend that Finegold prevented them from retrieving their

dump truck, trailer, solar panels, industrial batteries, and other equipment when

they came to collect it on June 18, 2015. Finegold argues that the Faires’

deprivation is self-inflicted. He claims that in August and November, 2015, he

granted permission to the attorney then representing the Faires to remove the

items, but neither the Faires nor their counsel took steps to collect the property.


                                             21
No. 79130-3-1/22


Finegold also claims that in January, 2018, he declared under oath that he did

not want the Faires’ property and he wanted them to remove it from the

Sourdough property.

        There are genuine issues of material fact on the issue of conversion.

Finegold’s claims that he repeatedly granted permission to the Faires to collect

their property are unsupported by the record. The only evidence before the court

on this point is in Finegold’s declaration, which he signed on October 31, 2017.8

On the issue of conversion, Finegold’s declaration indicates that he does not

want the property, he wants the Faires to remove it, and he has instructed his

counsel to demand that the Faires remove it.

        Finegold’s argument ignores the fact that when the Faires arrived to

retrieve their property, they were not permitted to take it. Finegold does not deny

that Pries told him the Faires were coming to collect their property on June 18,

2015. The record also tends to support that he participated in preventing the

Faires from simply taking their property and leaving. For example, Finegold

admitted that he knew Long intended to hold the Faires on the property until the

police arrived, but there is nothing in the record that sheds light on what Finegold

knew or intended would occur after the police arrived, because counsel for the

Faires was not permitted to probe deeper into this issue during the interview.

Further, the Faires’ two computers had been moved to Finegold’s vehicle in




        8 The second page of that document is missing from the record both here and in the

Superior court file. The text beginning on the top of page 3 suggests the missing page might
have provided facts related to the conversion claim.

                                                  22
No. 79130-3-1/23


anticipation of the Faires’ arrival, which suggests the computers might not have

been returned to the Faires on demand.

       Finally, there is the issue of the Faires’ solar panels. During his interview,

Finegold admitted that he had given the Faires permission to store the solar

panels in a cottage on the Sourdough property. Finegold said that when he

arrived on the property on June 17, 2015, he discovered there was a new lock on

the cottage and on one other outbuilding. At that time, Finegold did not

remember that he had given the Faires permission to put new locks on those two

buildings. Finegold had also forgotten that the Faires had offered to send

Finegold the keys, but Finegold had responded “something to the effect of don’t

worry about it. We’ll trust you.” Because he did not remember this conversation,

Finegold forcibly removed the lock on the cottage with a bolt cutter. Finegold

also admitted during the interview that the Faires’ solar panels were no longer on

the Sourdough property at all. Although he said he had not sold them and was

not in the process of selling them, he offered no information about where they are

and no explanation for having removed them. Cutting the lock and removing the

solar panels from the Sourdough property is difficult to reconcile with Finegold’s

assertion that the Faires are free to retrieve their belongings any time.

       The crux of Finegold’s argument is that he has acted in good faith

because he has twice, through third parties, granted the Faires’ permission to

collect their property, and because he has said he does not want it. But

Finegold’s good faith is not a defense to conversion. As explained in Judkins,




                                            23
No. 79130-3-1/24

       [N]either good nor bad faith, neither care nor negligence, neither
       knowledge nor ignorance, are of the gist of the action. The plaintiff’s
       right of redress no longer depends upon [their] showing, in any way,
       that the defendant did the act in question from wrongful motives, or
       generally speaking, even intentionally; and hence the want of such
       motives, or of intention, is no defense.
Judkins, 61 Wn.2d at 4.

       Thus, we have rejected formulations of a good faith defense in a case

where the defendant, a merchant, initially refused to return a patron’s coat to him,

but then did return it 16 days later, after the patron hired counsel, Demelash v.

Ross Stores, Inc., 105 Wn. App. 508, 20 P.3d 447 (2001), and in a case where a

landlord locked a tenant out and refused to return the tenant’s personal property

until he could determine who the rightful owner was, Olin v. Goehler, 39 Wn.

App. 688, 694, 694 P.2d 1129 (1985). In both cases, we recognized that

retention of another’s property could be justified for a reasonable time to

determine the rightful owner, but only if there was a valid dispute or conflicting

claims of ownership. Other than in very limited cases, such as conflicting claims

of ownership, the duty to return the property is absolute, and the failure to do so

renders the defendant liable for damages. See, Judkins, 61 Wn.2d at 4; see

also, Potter, 165 Wn.2d at 79 (holding that unlawfully impounding a vehicle may

constitute conversion, in which case the vehicle owner is not obligated to pursue

repossession of the vehicle, but may instead seek monetary damages for

conversion).




                                             24
No. 79130-3-1/25


         Because there are issues of material fact on the conversion claim,

summary judgment on this claim is reversed.9

                                        Uniust enrichment

        The Faires claim they are entitled to damages under one or both of the

theories of unjust enrichment and quantum meruit, because Finegold retained

the benefit of the truck, trailer, and other equipment the Faires stored on his

property, and because they performed maintenance and upkeep on the

Sourdough property during the time that Michele was ill. They claim that

Finegold asked them to maintain the property in his absence and promised to

pay them.

        “Unjust enrichment is the method of recovery for the value of the benefit

retained absent any contractual relationship because notions of fairness and

justice require it.” Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008).

To prove unjust enrichment, three elements must be established: (1) a benefit

conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge

by the defendant of the benefit; and (3) acceptance or retention by the defendant

of the benefit under such circumstances as to make it inequitable for the

defendant to retain the benefit without the payment of its value. Young, 164

Wn.2d at 484.


         ~ We express no opinion on the measure of damages, should the Faires prevail on the
issue of conversion on remand. We note, because the issue may arise, that on the record before
us, the Faires have not proven any damages. See, e.g., Baldwin v. Silver, 165 Wn. App. 463, 470-
71, 269 P.3d 284 (2011) (holding that plaintiff failed to prove damages resulted from insurer’s
breach of contract and bad faith, where the plaintiff’s only evidence of damages was the her own
declaration asserting, without supporting receipts, invoices, or other suitable proof, that the damage
to her deck was worth $10,000).

                                                     25
No. 791 30-3-1/26


       A recovery in quantum meruit is for an amount that is “as much as

deserved,” under an implied contract to pay compensation that is reasonable for

the services rendered. Bailie Commc’ns, Ltd. v. Trend Business Sys., Inc., 61

Wn.App. 151, 159, 810 P.2d 12 (1991). The three elements of an implied

contract are (1) the defendant requested work, (2) the plaintiff expected to be

paid for the work, and (3) the defendant knew or should have known that the

plaintiff expected to be paid for the work. YounQ, 164 Wn.2d at 486.

       Construing the facts most favorably to the Faires, they have not

demonstrated the elements of unjust enrichment. Under the doctrine, “one who

receives a benefit must pay for it only if the circumstances of its receipt or

retention make it unjust for him to keep the benefit without paying.” Irwin

Concrete, Inc. v. Sun Coast Prors., Inc., 33 Wn. App. 190, 194, 653 P.2d 1331

(1982). Here, although the Faires allege they performed maintenance and made

improvements, they have not identified any specific form of maintenance or

improvement that was a benefit to Finegold. The same is true of their claim that

Finegold has had the benefit of all the equipment the Faires stored on the

property. There is no evidence that Finegold has made use of the property or

received any other form of benefit from storing it.

       The Faires claim for recovery under quantum meruit also fails. Even

accepting that Finegold asked the Faires to maintain the property, the Faires

have not documented in James Faire’s declaration or in any other way what

maintenance work Finegold requested, what work they performed, and why the

amount due them for the work is $1,000.


                                             26
No. 79130-3-1127


       Summary judgment on this claim is affirmed.

                                    SANCTIONS

       Finegold did not formally move for attorney fees or sanctions, but notes in

his brief that the Faires “should be sanctioned for violating the most fundamental

Rules of Appellate Procedure.” We presume Finegold refers to the RAP 10.3(a)

violations he identified and briefed in his response. In their reply, the Faires

provided more thorough citations to the record. Further, Finegold does not argue

that the deficiencies in the Faires’ opening brief hindered or prevented him from

presenting his response, and we see no evidence that it did. Because Finegold

has not dedicated a section or motion to the issue, we construe this as a request

that the court impose sanctions on its own motion, and we decline to do so.

                                   CONCLUSION

       We affirm the dismissal of the Faires’ claims for conspiracy, assault,

intentional infliction of emotional distress, unjust enrichment and quantum meruit.

We reverse the dismissal of the Faires’ claim for conversion and remand for

further proceedings.



                                                               I


WE CONCUR:




                                                  ~--~—----~




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