                                                                            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

WILL T. PAYNE,                                 )
                                               )         No. 33537-2-111
                       Appellant,              )
                                               )
          v.                                   )
                                               )
JOHN "STACY" and SHARIE KAY                    )         UNPUBLISHED OPINION
RUEGSEGGER,                                    )
                                               )
                       Respondents.            )

          FEARING, C.J. -   The trial court dismissed on summary judgment plaintiff Will

Payne's suit against John and Sharie Ruegsegger for moneys owed under a real estate

contract on the basis that the agreement was not enforceable. The trial court also refused

to entertain Payne's claims for equitable estoppel, unjust enrichment, and constructive

trust because Payne failed to plead these equitable theories. Will Payne appeals. We

affirm.
No. 33537-2-111
Payne v. Ruegsegger


                                          FACTS

        On March 5, 2003, the State of Alaska sold, on contract, Alaska real property to

Lisa and Woodrow Allen. On December 27, 2007, Lisa and Woodrow Allen assigned

their purchasers' interest in the real estate contract to Will Payne, a Spokane jewel dealer.

That same year, a mutual friend introduced Payne to John Ruegsegger. Payne mentored

Ruegsegger in gem trading, and Ruegsegger purchased gemstones from Payne as

investments. The two gentleman began a friendship.

        In January 2008, Will Payne approached John Ruegsegger and the latter's wife,

Sharie, about purchasing Alaska real property. Payne declared that he owned land lots in

Alaska and offered to sell a lot to John Ruegsegger for an investment. The two discussed

a sale several times. Payne showed Ruegsegger a hand-drawn map and described the

property as enjoying an ocean view and an access road connecting the lot to the county

road.

        On February 5, 2008, Will Payne, as seller, and John and Sharie Ruegsegger, as

buyers, signed a single-page document designed for use as an addendum to a real estate

purchase agreement. The document read:

                ADDENDUM to that Real Estate Purchase and Sale Agreement
        dated February 5th, 2008 between Will T. Payne hereinafter known as the
        Seller, and J. Stacy and Sharie Ruegsegger hereinafter known as the
        Purchaser of the property commonly known as Whale Passage, Alaska and
        legally described as: Lot 9-B, B Portion oflot 9, Block 13, ALS 2000-26 as
        shown on Plat No. 2000-20 Petersburg Recording district Alaska situated in
        the County of Petersburg District, State of Alaska

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Payne v. Ruegsegger


      SAID AGREEMENT is hereby amended to read as follows:
             The following purchase is agreed upon between seller and buyer as
      above in the amount of $60,000.00 with 12,000.00 down (check) and a
      balance of $48,000.00 to be paid in certified fund at 9% for 15 years to be
      carried by seller per promissory note attached.
             The property is sold as is including power at property line as shown
      in addendum A
             ALL OTHER terms and conditions of said Real Estate Purchase and
      Sale Agreement shall remain the same.
             THE ABOVE has been read and is agreed to by the undersigned
      this:
             5th day of February 2008        5th day of February 2008
             J Stacy Ruegsegger              Will T. Payne Feb. 5, 2008
             Purchaser                                 Seller
             Sharie Ruegsegger
             Purchaser                                 Seller

Clerk's Papers (CP) at 7 (handwritten portions are underlined).

      Although the one-page document claims to modify a real estate purchase and sale

agreement, no prior agreement existed. The parties also never executed the promissory

note referenced in the document. The document mentioned an addendum A, but neither

party, during litigation, produced an addendum to the document. Will Payne claims

addendum A was a simple map and legal description of the property.

      John and Sharie Ruegsegger paid Will Payne $12,000 as down payment for the

purchase of the Alaska property. Thereafter, the Ruegseggers, nearly each month and

usually in the sum of $500, periodically forwarded partial payments to Payne, and he

sometimes provided handwritten receipts for the payments. The Ruegseggers aver that

they paid $39,286.85 to Payne and that he never provided receipts for many of the



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No. 33537-2-III
Payne v. Ruegsegger


payments. Payne contends the Ruegseggers owe a balance of $38,000.00, a figure

suggesting the Ruegseggers paid a lesser sum.

       On December 29, 2008, Will Payne recorded a deed showing the State of Alaska

granted him ownership of the Alaska land. On May 11, 2009, Payne executed a statutory

warranty deed transferring title of the Alaska property to the Ruegseggers. John and

Sharie Ruegsegger discontinued paying Will Payne on the real estate contract after

October 2012. Payne spoke with John Ruegsegger numerous times about the

Ruegseggers' failure to pay, and, on April 10, 2014, Payne sent them a formal

notification and request for payment.

                                        PROCEDURE

       Will Payne sued John and Sharie Ruegsegger. The complaint, captioned

Complaint for Money Owed, contains sections titled jurisdiction, events, damages, and

prayer for relief. The complaint does not list causes of action, but alleges that the

Ruegseggers owe $38,000 plus prejudgment interest. Payne's prayer for relief requested:

               1. That judgment be entered against the Defendants individually and
       any marital community if applicable in the principal amount of $38,000.00
       with prejudgment interest to the date of entry of judgment;
               2. That the court award attorney fees and costs as permitted by law
       or contract;
               3. For judgment for such other and further relief as the courts deems
       [sic] just and proper.

CP at 5.

       John and Sharie Ruegsegger answered the complaint and raised affirmative

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No. 33537-2-III
Payne v. Ruegsegger


defenses, including failure to state a claim, lack of subject matter jurisdiction, improper

venue, waiver, estoppel, unclean hands, material breach, failure to mitigate, statute of

frauds, consumer protection violations, lack of consideration, lack of essential terms,

accord and satisfaction, and fraud. The Ruegseggers also asserted counterclaims for

violations of the Consumer Protection Act, chapter 19.86 RCW, constructive fraud, and

unjust enrichment.

       John and Sharie Ruegsegger moved for summary judgment. With the motion, the

couple argued that the one-page sale document is unenforceable because it lacks essential

elements of a contract to sell real estate, the terms of the document show no meeting of

the minds, and Will Payne's claim is not ripe because the contract contains no

acceleration clause. The Ruegseggers sought attorney fees under RCW 4.84.185 for

defending against Payne's frivolous claims. They also filed a supplemental

memorandum to support an award of fees, in which memorandum they argued that Payne

knew he could not sell the land because it violated an Alaska statute. On response to the

Ruegseggers' summary judgment motion, Will Payne argued that the agreement was

enforceable. Payne also sought relief on the grounds of equitable estoppel, unjust

enrichment, unclean hands, and a constructive trust. Will Payne cross-moved for

summary judgment.

      The trial court granted John and Sharie Ruegsegger' s motion for summary

judgment and denied Will Payne's cross motion for summary judgment. The trial court

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No. 33537-2-111
Payne v. Ruegsegger


reasoned that the sale document failed to include the essential elements of an enforceable

real estate contract, the parties entered no contract because of a lack of a meeting of the

minds, and the document, having no acceleration clause, did not require the Ruegseggers

to make payments until 2023. Will Payne asked the trial court to reconsider its ruling and

to grant him a remedy under the theories of equitable estoppel, unjust enrichment, and

constructive trust. The trial court denied the request for reconsideration on the basis that

Will Payne asserted no equitable claims in the complaint. The trial court granted the

Ruegseggers' request for voluntary dismissal of their counterclaims without prejudice.

                                  LAW AND ANALYSIS

       On appeal, Will Payne asks this court to reverse the summary judgment granted to

John and Sharie Ruegsegger. This court reviews a trial court order granting summary

judgment de novo. Briggs v. Nova Servs., 166 Wn.2d 794,801,213 P.3d 910 (2009).

Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter oflaw. CR 56(c). A material fact is one on which the outcome of

the litigation depends in whole or in part. Ranger Ins. Co. v. Pierce County, 164 Wn.2d

545,552, 192 P.3d 886 (2008); Morris v. McNicol, 83 Wn.2d 491,494,519 P.2d 7

(1974). In a summary judgment motion, the burden is on the moving party to

demonstrate that there is no genuine issue as to a material fact and that, as a matter of

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No. 33537-2-III
Payne v. Ruegsegger


law, summary judgment is proper. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77

( 1985). This court construes all facts and reasonable inferences in the light most

favorable to the nonmoving party. Barber v. Bankers Life & Cas. Co., 81 Wn.2d 140,

142, 500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434,437, 656 P.2d 1030 (1982).

       Although the subject of the lawsuit is a real estate contract for land in the State of

Alaska, this court possesses jurisdiction over the subject matter. "[A ]ctions involving

personal interests in property, as opposed to actions adjudicating legal title to real

property, need not be adjudicated in the state where the real property is located."

One West Bank, FSB v. Erickson, 185 Wn.2d 43, 60,367 P.3d 1063 (2016); see Silver

Surprize, Inc. v. Sunshine Mining Co., 74 Wn.2d 519,525,445 P.2d 334 (1968). When

the action aims at the personal relations of parties in connection with a contract for sale of

property beyond the jurisdiction, courts may afford relief. Smith v. Fletcher, 102 Wash.

218, 220, 173 P. 19 ( 1918). This court has subject matter jurisdiction in this case because

the action determines the legal effect of the addendum agreement and its effects on Will

Payne and the Ruegseggers' respective interests. Will Payne sought a money judgment,

not relief concerning title to land.

       One might expect Alaska law to control rights possessed under a contract to sell

Alaska real property. Nevertheless, neither party forwards Alaska law nor seeks

application of the Frontier State's jurisprudence. CR 9(k)(l) reads:

              (k) Foreign Law.

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No. 33537-2-111
Payne v. Ruegsegger


              ( 1) United States Jurisdictions. A party who intends to raise an issue
       concerning the law of a state, territory, or other jurisdiction of the United
       States shall set forth in the party's pleading facts which show that the law
       of another United States jurisdiction may be applicable, or shall state in the
       party's pleading or serve other reasonable written notice that the law of
       another United States jurisdiction may be relied upon.

Even in civil cases when a foreign law is an essential element to the cause of action or

defense, it must be pled and proved like any other fact. State v. Collins, 69 Wash. 268,

273, 124 P. 903 (1912). Therefore, we rely solely on Washington law.

                      Essential Terms of Real Estate Sale Agreement

       The trial court ruled that the contract between Will Payne, as seller, and John and

Sharie Ruegsegger, as purchasers, was unenforceable for two reasons: the written

document omits essential terms for a real estate contract and the parties never reached a

meeting of the minds. The trial court ruled that Payne could not enforce the contract in

the immediate future for a third reason: the contract contained no date for payments. We

agree with the trial court that the contract lacked essential terms, and, therefore, we do

not address either of the two alternative grounds for summary judgment.

       A contract for the transfer of real property requires mutual assent as to all material

terms or it is unenforceable. Sea-Van lnvs. Assocs. v. Hamilton, 125 Wn.2d 120, 129,

881 P.2d 1035 (1994). Washington recognizes certain terms material to real property

contracts:

               (a) time and manner for transferring title; (b) procedure for declaring
       forfeiture; (c) allocation of risk with respect to damage or destruction; (d)

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No. 33537-2-III
Payne v. Ruegsegger


       insurance provisions; (e) responsibility for: (i) taxes, (ii) repairs, and (iii)
       water and utilities; (f) restrictions, if any, on: (i) capital improvements, (ii)
       liens, (iii) removal or replacement of personal property, and (iv) types of
       use; (g) time and place for monthly payments; and (h) indemnification
       prov1s1ons.

Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993) (citing Hubbell v. Ward, 40

Wn.2d 779, 782-83, 246 P.2d 468 (1952)).

       A controlling decision is Hubbell v. Ward, 40 Wn.2d 779 (1952). In Hubbell, the

plaintiff sought specific performance of an earnest money agreement for the sale of real

property. The agreement provided:

               Total purchase price is Twenty-Nine Thousand and No/100 Dollars
       ($29.000.00), payable as follows: On evidence of merchantable title
       purchaser agrees to pay Nine Thousand ($9,000.00) Dollars down and sign
       a contract for the balance, payable at $200.00 or more per month,
       including interest at the rate of 5% on deferred balances.
               Purchase price is to include all furniture in rentals, excluding
       owner's apartment, also to include necessary tools and equipment, furnace
       parts and insulation to maintain premises. Owner shall furnish complete
       inventory of furnishings for buyer's inspection and approval before closing
       of sale.

Hubbell v. Ward, 40 Wn.2d at 780 (internal quotation marks omitted). After a bench

trial, the trial court ordered the defendant "to enter into a real estate contract according to

the terms of said earnest money receipt and agreement." Hubbell v. Ward, 40 Wn.2d at

780-81 (internal quotation marks omitted). The state Supreme Court reversed. The high

court ruled that the original agreement lacked certainty because the agreement anticipated

the preparation and execution of a future real estate purchase contract on which the minds


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No. 33537-2-111
Payne v. Ruegsegger


of the parties had not approved. Neither the agreement nor the trial court's decree

provided the provisions that a real estate contract should contain. Therefore, the court

refused specific enforcement of the contract. The court identified the thirteen subjects,

listed above, to include in a real estate contract.

       The agreement between Will Payne and John and Sharie Ruegsegger lacks many

material terms. The singular page document omits the method of payment of principal or

interest, payment of taxes, property insurance, liens on the property, payment for water or

utilities, possession, escrow deposit, or even conveyance by deed.

       Will Payne distinguishes Hubbell v. Ward because Rudd Hubbell sought specific

performance, not money damages. In support of this argument, Payne advances Hedges

v. Hurd, 47 Wn.2d 683, 289 P.2d 706 (1955). In Hedges, Mildred Hurd agreed to sell

real property to the Hedges, and the parties signed an agreement. Hurd later received a

better offer from a third party, but the Hedges refused to release Hurd from the

agreement. The Hedges sued for money damages and the trial court found there was a

valid contract and awarded $1,000 in damages. Our Supreme Court found the case

distinguishable from Hubbell and affirmed. The court reasoned:

               As indicated above, the earnest-money receipt herein involved
       contained an adequate description of the property. It specified the total
       purchase price, the method of payment of principal and interest; provision
       was made for prorating taxes, insurance, and liens; for payment of water
       and other utilities, for possession, and for the deposit in escrow of the
       balance of the down payment by the purchasers, and a warranty deed by the
       seller. In view of what was said as to the earnest-money receipt in the

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No. 33537-2-111
Payne v. Ruegsegger


       Hubbell case, supra, we are convinced that the aforementioned things
       constitute and embrace all of the essential elements of a simple, binding
       contract for the sale of land, and that the earnest-money receipt or contract
       in the instant case was breached by the appellant in the instant case.

Hedges v. Hurd, 47 Wn.2d at 687.

       Hedges does not support Will Payne's position. The real estate agreement in

Hedges was only enforceable because it included the essential elements of a binding

contract for the sale of land. Again, Will Payne's agreement to sell the Alaska property

lacks those necessary terms.

       Will Payne argues that, even if the real estate agreement lacks essential terms for

enforceability, the parties intended to supplement the missing terms later. This intent,

according to Payne, renders the document enforceable.

       The law recognizes three similar yet distinct varieties of agreements in which

parties intend to finalize terms later: agreements to agree, contracts to negotiate, and

agreements with open terms. Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171,

175-76, 94 P.3d 945 (2004). An agreement to agree is an agreement to do something that

requires a further meeting of the minds of the parties and without which it would not be

complete, and such agreements are unenforceable in Washington. Keystone v. Xerox, 152

Wn.2d at 175; Sandeman v. Sayres, 50 Wn.2d 539, 541-42, 314 P.2d 428 (1957). Thus,

categorizing the Alaska contract as an agreement to agree helps Payne none. In a

contract to negotiate, the parties exchange promises to conform to a specific course of


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No. 33537-2-III
Payne v. Ruegsegger


conduct during negotiations, such as negotiating in good faith, exclusively with each

other, or for a specific period of time. Keystone v. Xerox, 152 Wn.2d at 176. Under an

agreement with open terms, the parties intend to be bound by the key points agreed on

with the remaining terms supplied by a court or another authoritative source, such as the

Uniform Commercial Code. Keystone v. Xerox, 152 Wn.2d at 176.

       No evidence supports a conclusion that the Alaska land agreement is a contract to

negotiate or an agreement with open terms. None of the document terms reference

subsequent negotiations. The document cannot be an agreement with open terms because

the parties never agreed on key points and no independent or authoritative sources aided

by supplementing an agreement to sell real property.

                                    Equitable Reinedies

       Will Payne contends that, even if he cannot legally enforce the real estate contract,

the trial court should have granted him recovery based on equitable estoppel, unjust

enrichment, constructive trust, or by using inherent judicial power to craft a remedy.

John and Sharie Ruegsegger argue that Payne's claims for equitable remedies were

properly dismissed because he did not plead them in his complaint, and he provided no

meaningful argument supporting his request for equitable remedies. We agree with the

Ruegseggers.

       A complaint must contain a "short and plain statement of the claim showing that

the pleader is entitled to relief." CR 8(a)(l). We construe pleadings liberally. State v.

                                             12
No. 33537-2-111
Payne v. Ruegsegger


Adams, 107 Wn.2d 611, 620, 732 P .2d 149 (1987). If a complaint states facts entitling

the plaintiff to some relief, it is immaterial by what name the action is called. State v.

Adams, 107 Wn.2d at 620. Initial pleadings that may be unclear may be clarified during

the course of summary judgment proceedings. State v. Adams, 107 Wn.2d at 620.

Nevertheless, a complaint should adequately alert the defendant of the claim's general

nature. Estate ofDormaier v. Columbia Basin Anesthesia, 177 Wn. App. 828, 853-54,

313 PJd 431 (2013). A complaint must give the opposing party "fair notice" of the

nature of the plaintiffs claim. Champagne v. Thurston County, 163 Wn.2d 69, 84, 178

PJd 936 (2008); see Berge v. Gorton, 88 Wn.2d 756, 762, 567 P.2d 187 (1977). The

plaintiff must identify the legal theories on which the plaintiff seeks relief. Estate of

Dormaier, 177 Wn. App. at 854. Insufficient pleadings are prejudicial to the opposing

party. Camp Fin., LLC v. Brazington, 133 Wn. App. 156, 162, 135 P.3d 946 (2006).

       Will Payne's "Complaint for Monies Owed" claimed the Ruegseggers owed a

balance of $38,000, plus prejudgment interest. CP at 3, 5. The complaint contained

sections titled jurisdiction, events, and damages, and concludes with a prayer for relief.

Nevertheless, the complaint omitted a list of legal theories on which Payne sought relief.

Although the complaint referenced the sale document, the pleading never mentioned any

equitable claims. Payne's prayer for relief requested:

              1. That judgment be entered against the Defendants individually and
       any marital community if applicable in the principal amount of$38,000.00
       with prejudgment interest to the date of entry of judgment;

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                                                                                             I
No. 33537-2-111
Payne v. Ruegsegger


               2. That the court award attorney fees and costs as permitted by law
       or contract;
               3. For judgment for such other and further relief as the courts deems
       [sic] just and proper.

CP at 5. The complaint drops no hint at equitable remedies and omits any mention of

estoppel, restitution, or constructive trust. Payne first mentioned equitable remedies in

his cross motion for summary judgment where he argued equitable estoppel, unjust

enrichment, and imposition of a constructive trust.

       Will Payne's complaint's prayer for relief requests ''judgment for such other and

further relief as the courts deems [sic] just and proper." CP at 5. Nevertheless, this

generic recitation fails to provide John and Sharie Ruegsegger with any notice of the

nature of the "further relief." CP at 5. Even though a plaintiff may clarify initial

pleadings during the course of summary judgment proceedings, Payne went beyond

clarification and attempted to insert new claims and remedies in his cross motion for

summary judgment. Payne could have asked but never attempted to amend his complaint

to add the equitable claims.

       Case law and treatises support our ruling that Will Payne could not assert

equitable theories of relief in a summary judgment motion. The rule requiring estoppel to

be pled applies not only when the estoppel is set up as a defense by the defendant but also

when the plaintiff asserts estoppel as part of his or her cause of action or to preclude a

defense. 28 AM. JUR. 2D Estoppel and Waiver§ 150 (2016). Estoppel generally is



                                             14
No. 33537-2-III
Payne v. Ruegsegger


unavailable to a party who fails to plead it. 28 AM. JUR. 2D Estoppel and Waiver § 151

(2016). In an ancient decision, the Washington Supreme Court refused a plaintiff

recovery under estoppel when he never pled estoppel. Jacobs v. First Nat'/ Bank of

Puyallup, 15 Wash. 358, 46 P. 396 (1896).

       To recover for unjust enrichment or restitution the plaintiff must plead unjust

retaining of benefits and why an equitable remedy is necessary. Hughes v. Chattem, Inc.,

818 F. Supp. 2d 1112, 1124-25 (S.D. Ind. 2011). Stated differently, the plaintiff must

allege that she performed or otherwise conferred a benefit on the defendants under a

contractual or quasi-contractual relationship with the expectation of renumeration. Prima

v. Darden Restaurants, Inc., 78 F. Supp. 2d 337, 355 (D.N.J. 2000). A plaintiff must

allege in a complaint or petition all of the material facts that constitute the gist of a cause

of action for restitution. 66 AM. JUR. 2D Restitution and Implied Contracts § 159 (2016).

Merely labeling a claim for money damages is insufficient. 66 AM. JUR. 2D Restitution

and Implied Contracts § 159 (2016).

       A party claiming entitlement to a constructive trust must allege in the complaint

the following: (1) a confidential or fiduciary relationship, (2) a promise, express or

implied, (3) a transfer made in reliance on that promise, and (4) unjust enrichment. In re

Koreag, Controle et Revision, S.A. v. Refco FIX Assoc., Inc., 961 F.2d 341, 352 (2d Cir.

1992); In re Ticketplanet.com, 313 B.R. 46, 68 (Bankr. S.D.N.Y. 2004); Abele v. Sawyer,

747 So. 2d 415,416 (Fla. Dist. Ct. App. 1999). A constructive trust will not be imposed

                                              15
No. 33537-2-III
Payne v. Ruegsegger


unless the complaint makes specific allegations of wrongdoing, such as fraud, breach of

fiduciary duty, duress, coercion, or mistake and the complaint identifies specific,

identifiable property to which the defendant has title. 76 AM. JUR. 2D Trusts § 624

(2016). A general claim for money damages will not give rise to a constructive trust. 76

AM. JUR. 2D Trusts § 624 (2016).

       In Kirby v. City of Tacoma, 124 Wn. App. 454, 98 P.3d 827 (2004), Joseph Kirby

sued the city of Tacoma for harassment and discrimination during his employment with

the Tacoma Police Department. He amended his complaint by adding intentional

infliction of emotional distress as a cause of action. He also filed a municipal notice of

claim indicating his intent to assert "constitutional tort claims." Kirby v. City of Tacoma,

124 Wn. App. at 462. Tacoma moved for partial summary judgment and Kirby raised a

First Amendment claim in his memorandum in opposition to the motion for summary

judgment. The trial court granted Tacoma's motion for partial summary judgment on

Kirby's claims and dismissed Kirby's First Amendment claim on the basis that Kirby

failed to properly plead a First Amendment claim.

       On appeal, this court, in Kirby v. City of Tacoma, affirmed summary judgment for

Tacoma. The court held that Kirby's pre-suit tort claim failed to provide the city

adequate notice of the nature of the claims again~t which it would have to defend. This

court reasoned that a claim for "constitutional tort claims" without reference to "free

speech" or "First Amendment" is insufficient because the "variation among potential

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No. 33537-2-111
Payne v. Ruegsegger


constitutional tort claims is significant." Kirby v. City of Tacoma, 124 Wn. App. at 470.

This variation presented myriad ways of proceeding with a defense and conducting

discovery, resulting in actual prejudice to the city. Kirby v. City of Tacoma, 124 Wn.

App. at 470.

       The dissent writes that the record establishes that the trial court decided the

equitable theories. Nevertheless, the record confirms that the trial court did not address

the merits of the theories. In the order denying reconsideration, the trial court expressly

ruled that "plaintiff did not make any equitable claims in the complaint." CP at 228.

       We hold that Will Payne failed to provide John and Sharie Ruegsegger with

adequate notice of any equitable claims or remedies. Payne first mentioned claims for

equitable relief in his cross motion for summary judgment. In Kirby, the plaintiff

amended his complaint and referenced constitutional tort claims. Will Payne never

sought to amend his complaint. The trial court properly dismissed Payne's equitable

claims because he failed to plead them under CR 8(a).

                                Motion for Reconsideration

       Will Payne contends the trial court should have granted his motion for

reconsideration because of irregularities in the proceedings, surprise, error of law

occurring at the trial, and that substantial justice had not been done. We decline to

address this assignment of error because Payne has not complied with RAP 10.3.




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No. 33537-2-111
Payne v. Ruegsegger


       RAP 10 .3 (a)( 6) provides that an appellate brief should contain "argument in

support of the issues presented for review, together with citations to legal authority and

references to relevant parts of the record." Assignments of error not argued or further

referred to in a brief or orally are treated as abandoned by an appellant. Talps v. Arreola,

83 Wn.2d 655, 657, 521 P.2d 206 (1974).

       CR 59(a) lists nine grounds for a trial court to reconsider its decision. Before the

trial court, Will Payne sought reconsideration on four grounds:

              (1) Irregularity in the proceedings of the court, jury or adverse party, or any
       order of the court, or abuse of discretion, by which such party was prevented from
       having a fair trial;

              (3) Accident or surprise which ordinary prudence could not have guarded
       against;

              (8) Error in law occurring at the trial and objected to at the time by the
       party making the application; or
              (9) That substantial justice has not been done.

CR 59(a); see also CP at 211-12. On appeal, Payne omits any reasoned argument to

support reconsideration under any of the CR 59(a) factors. Instead of identifying any

irregularity in the proceedings or source of accident or surprise, Payne reiterates his belief

that the trial court should have considered equitable remedies or, at the minimum, granted

the right to recovery of possession and title to said real estate.

                                       CONCLUSION

       We affirm the trial court's dismissal of Will Payne's suit on summary judgment.


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No. 33537-2-111
Payne v. Ruegsegger


      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.



                                            Fearing, c.1:        l
I CONCUR:




                                           19
                                          33537-2-III

       LAWRENCE-BERREY, J. (dissenting)-The majority affirms the summary

judgment dismissal, in part, by refusing to consider the equitable theories argued to and

decided by the trial court. Because formal pleading requirements may be waived by the

parties and the trial court, I dissent.

       In response to John "Stacy" and Sharie Kay Ruegseggers' summary judgment

motion and assertion that the real estate agreement was unenforceable, Will Payne raised

equitable defenses, including unjust enrichment. The record reflects genuine issues of

material fact as to whether the Ruegseggers would be unjustly enriched: Mr. Payne

deeded the property to the Ruegseggers, and the Ruegseggers later refused to pay the

agreed value.

       The record establishes that this and other equitable theories were argued by the

parties and decided by the trial court. In their response to Mr. Payne's motion for

reconsideration, the Ruegseggers note:

              But the fact is the Court reviewed all of the documents submitted by
       the parties, including [Mr. Payne's] Memorandum in Opposition. The
       Court also heard arguments from both counsel on the equitable issues
       raised by [Mr. Payne]. After considering all the pleadings and the
       arguments, the Court made an oral ruling that [Mr. Payne's] equitable
       arguments were denied.

Clerk's Papers at 217.
No. 33537-2-111
Payne v. Ruegsegger


       When reviewing a trial court's summary judgment order, we review even

unpleaded issues argued to and decided by the trial court. Landstar lnway, Inc. v.

Samrow, 181 Wn. App. 109, 121-22, 325 P.3d 327 (2014). Because the majority

focuses its review of the summary judgment order on the pleadings rather than on

the issues argued to and decided by the trial court, I dissent.




                                           Lawrence-Berrey, J.
                                                                             j




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