                                                                    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       V.                                     )         UNPUBLISHED OPINION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.

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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).

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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



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     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.




                                            14
