James & Angela Faire v. Richard Alan Finegold ( 2019 )

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v. UNPUBLISHED OPINION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.”
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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.
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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.
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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
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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.
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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
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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.
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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.
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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).
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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.
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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
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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
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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.
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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
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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.
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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
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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.
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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,
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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.
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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).
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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:
~--~—----~
27