Jonathan Wesley Ebbeler, V. Wfg National Title Company Of Wa ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JONATHAN WESLEY EBBELER AND No. 84849-6-I
ELIZABETH ASHLEY EBBELER, husband
and wife, DIVISION ONE
Appellants, UNPUBLISHED OPINION
v.
WFG NATIONAL TITLE COMPANY OF
WASHINGTON, LLC, a Washington limited
liability company; DANI LEGGETT and
JANE/JOHN DOE LEGGETT, believed to
be married persons,
Respondents.
FELDMAN, J. — Jonathan and Elizabeth Ebbeler (the Ebbelers) appeal the
trial court’s summary judgment order dismissing their claims against WFG National
Title Company of Washington, LLC (WFG), and its Limited Practice Officer, Dani
Leggett (collectively, the Escrow Defendants), based on issue preclusion
principles. 1 We reverse.
1
Although Washington courts and litigants often refer to this doctrine as “collateral estoppel,” it is
“modernly referred to as issue preclusion.” Scholz v. Wash. State Patrol, 3 Wn. App. 2d 584, 594,
416 P.3d 1261 (2018). The U.S. Supreme Court has noted that the modern terminology has
“replaced” the prior terminology, which it described as “a more confusing lexicon.” Taylor v.
Sturgell, 553 U.S. 880, 892 n.5, 128 S. Ct. 2161 (2008).
No. 84849-6-I
I
This appeal arises out of the Ebbelers’ failed attempt to purchase a home
in Shoreline, Washington. The home was previously owned by Alison Andrews,
who died in February 2018. Andrews’ son, Sidney Andrews, acting as the personal
representative of her estate (the Estate), listed the home for sale. The Ebbelers
attempted to purchase the home from the Estate, but the transaction failed to
close. The Ebbelers sued the Estate and lost. That was the Ebbelers’ first lawsuit
relating to the property and is referred to herein as Ebbeler I.
On appeal in the first lawsuit, our court summarized the failed attempt to
purchase the property, starting with the negotiations on price, as follows:
On March 28, 2019, the Ebbelers offered to purchase the
property for $2 million, using the Northwest Multiple Listing Service
(NWMLS) real estate purchase and sale agreement form (REPSA).
On March 30, Andrews extended a counteroffer for $2.625 million,
offered a personal representative’s deed in lieu of a statutory
warranty deed, and required that any and all contingencies, both
financing and inspections, be waived within 30 days of mutual
acceptance. . . .
On March 31, 2019, the parties settled on a purchase price of
$2.3 million. The REPSA contained the Estate’s proposed 30-day
contingency period clause:
Buyer shall have 30 days from mutual acceptance to conduct
all inspections, document reviews, financing approval, etc. . .
. After 30 days, Buyer and Seller agree that all contingencies
are deemed to be waived and will proceed to closing as
specified in the agreement. Buyer may elect, before the 30
days has expired, to terminate the agreement with written
notice and Earnest Money will be refunded to the Buyer.
Upon removal of Buyer’s contingencies or after thirty (30)
days from mutual acceptance and delivery of the Residential
Real Estate Purchase and Sale Agreement, whichever is
sooner, the Earnest Money shall become a non-refundable
deposit applicable toward the Purchase Price and no longer
Earnest Money. If this transaction fails to close for any reason
-2-
No. 84849-6-I
other than default by Seller, the non-refundable deposit shall
remain the property of Seller.
The parties agreed on a closing date of “on or before” May 29,
2019. They also agreed to use WFG National Title (WFG) as the
closing agent. Once they agreed to these final terms, the Ebbelers
deposited $65,000 in earnest money with WFG.
....
The Ebbelers allowed the contingency period to lapse and all
contingencies were, at that point, waived. . . .
The Ebbelers, residents of Maryland, worked with a mortgage
broker to obtain a $1.6 million loan from Washington Federal
(WaFed) to purchase the property. WaFed prepared loan documents
and forwarded them to WFG for the Ebbelers to execute. WFG
arranged for a traveling notary to meet the Ebbelers to execute the
loan and closing papers on Saturday, May 25, 2019, four days before
the scheduled closing date.
WFG mistakenly provided the Ebbelers with a draft statutory
warranty deed, rather than a personal representative’s deed, to
approve. The Ebbelers approved the deed form, signed what they
believed to be all remaining documents, and returned them via
overnight mail to WFG.
WFG received the Ebbelers’ signed closing documents on the
morning of May 28 and forwarded them to WaFed to review. The
same day, the Ebbelers wired a $690,000 down payment to WFG.
Just before 6 p.m. that evening, Dani Leggett, the closing
agent, emailed Andrews and asked him to arrive at WFG’s Seattle
offices at 11 a.m. the next day to sign closing documents so she
could “send documents to the lender prior to their funding cutoff.”
Leggett informed Andrews that “[t]he buyer’s lender requires
reviewing a portion of the seller signed documents prior to funding
their loan and releasing us to record.” The following morning,
Andrews told Leggett that he would come in to execute the closing
documents but that she did not have the authority to distribute any
documents to the Ebbelers’ lender until he provided written
authorization for her to close.
At approximately 11 a.m. on May 29, WaFed notified WFG
that it had discovered at least 13 errors in the Ebbelers’ signed loan
documents that needed to be corrected before it would wire funds for
closing.
-3-
No. 84849-6-I
At 1 p.m., [the attorney for the Estate, Lisa] Peterson notified
Leggett that the Estate would not authorize her to send copies of
signed documents to anyone unless and until all funds had been
deposited. Leggett responded that the only documents she wanted
to send were the signed escrow instructions, the “closing disclosure,”
and the statutory warranty deed. When Peterson received this email,
she told Leggett that the proper deed form should be a personal
representative’s deed, not a statutory warranty deed, and that she
would not authorize WFG to distribute a signed deed before funds
were on hand to close. She also informed Leggett that Andrews
would be there by 2:30 p.m. to sign the closing documents.
Leggett then sent an email notifying everyone involved in the
transaction that once Andrews arrived to sign the documents and
she had the “green light” to move forward with the closing, she would
let everyone know. She further stated that it was her belief that the
lender’s cutoff to fund the loan was 2 p.m. and suggested that the
parties would need to extend the REPSA. At 1:40 p.m., the Ebbelers’
mortgage broker, Phil Mazzaferro, sent an email to the parties
indicating that WaFed wanted more changes to the loan documents.
Barbara Otero, WaFed’s loan manager, testified that the bank could
not and would not fund the loan until these items were corrected.
Nothing in the record indicates if or when the errors in the
Ebbelers’ loan documents were corrected. Neither WaFed nor the
Ebbelers ever deposited the balance of the purchase price with
WFG.
Andrews arrived at WFG’s offices at 2:17 p.m. and learned
that WFG had prepared, and the Ebbelers had approved, the
incorrect deed form. He immediately notified his attorney of the error
and she sent WFG a personal representative’s deed for WFG to
finalize. WFG asked its lawyer to approve the revised deed.
Andrews signed all the closing documents, except the deed, by 2:48
p.m. He signed the correct deed form at 3:51 p.m. Because the King
County Recorder’s Office closes at 3:30 p.m., WFG would have been
unable to record the deed that day.
When the Ebbelers realized the transaction would not close,
they asked Andrews to extend the closing date. Andrews refused
because the Ebbelers had failed to tender the purchase proceeds.
Ebbeler v. Andrews, No. 82225-0-I, slip op. at 3-7 (Wash. Ct. App. Feb. 28, 2022)
(unpublished), https://www.courts.wa.gov/opinions/pdf/822250.pdf (footnotes
-4-
No. 84849-6-I
omitted).
In Ebbeler I, the Ebbelers sued the Estate for recovery of the earnest
money, claiming the Estate (1) breached the REPSA by failing to execute and
deliver a deed in a timely manner and (2) breached its duty of good faith and fair
dealing by preventing the Ebbelers from funding the loan. Id. at 7. The Estate
filed a counterclaim alleging the Ebbelers had breached the REPSA. Id. Following
a bench trial, the trial court found that the Ebbelers had breached the REPSA by
failing to timely pay the purchase price by the closing date and therefore had
forfeited the earnest money. Id. at 7-8. Critical here, the trial court’s findings of
fact and conclusions of law indicates as follows: (1) “[t]he Ebbeler’s [sic] failure to
perform caused the closing to fail”; and (2) “responsibility [for timely payment at
closing] lay entirely with the Ebbelers and it is the ultimate failure for this purchase
not happening.” 2 On appeal, we affirmed the trial court’s ruling in all respects, and
the Supreme Court denied review. Id. at 1; Ebbeler v. Andrews, 199 Wn.2d 1024,
512 P.3d 901 (2022).
After the judgment in Ebbeler I became final, the Ebbelers filed the instant
action against the Escrow Defendants, which is referred to herein as Ebbeler II.
The Ebbelers asserted four claims: (1) breach of contract; (2) professional
negligence; (3) tortious interference with contract; and (4) violation of the
Washington Consumer Protection Act, RCW 19.86 (the CPA). Whereas the
contract at issue for purposes of the tortious interference claim is the REPSA
2
We refer to these statements as “findings” even though the first appears in the trial court’s
conclusions of law (in what is incorrectly numbered paragraph 98) and the second in the
trial court’s “order of the court” (in paragraph 7). Whether the statements are properly
characterized as findings, conclusions, or a judicial decree is not material to our analysis.
-5-
No. 84849-6-I
between the Ebbelers and the Estate, the contract at issue for purposes of the
breach of contract claim is the Closing Agreement and Escrow Instructions (the
Escrow Instructions) between and among the Ebbelers and the Escrow Defendant.
Relevant here, the Escrow Instructions include the following provisions:
Documents. The closing agent is instructed to select, prepare,
complete, correct, receive, hold, record and deliver documents as
necessary to close the transaction.
....
Instructions from Third Parties. If any written instructions
necessary to close the transaction according to the parties’
agreement are given to the closing agent by anyone other than the
parties or their attorney, including but not limited to, lenders, such
instructions shall be deemed to have been accepted and agreed to
by the parties.
Disclosure of Information to Third Parties. The closing agent is
authorized to furnish, upon request, copies of any closing
documents, agreements or instructions concerning the transaction to
the parties’ attorneys and to any real estate agent, lender or title
insurance company involved in the transaction.
....
Inability to Comply With Instructions. If the closing agent receives
conflicting instructions or determines, for any reason, that it cannot
comply with these instructions by the date for closing specified in the
parties’ agreement or in any written extension of that date, it shall
notify the parties, request further instructions, and in its discretion:
(1) continue to perform its duties and close the transaction as soon
as possible after receiving further instructions, or (2) if no conflicting
instructions have been received, return any money or documents
then held by it to the parties that deposited the same, less any fees
and expenses chargeable to such party, or (3) commence a court
action, deposit the money and documents held by it into the registry
of the court, and ask the court to determine the rights of the parties.
At bottom, the Ebbelers claim that the Escrow Defendants breached these specific
contractual requirements and that their breach of contract, as well as their tortious
conduct, ultimately caused the closing to fail.
-6-
No. 84849-6-I
Because the trial court in Ebbeler I expressly found that “[t]he Ebbeler’s [sic]
failure to perform caused the closing to fail,” the Escrow Defendants filed a motion
for summary judgment to dismiss the Ebbelers’ claims, arguing that the claims are
barred by issue preclusion because each claim “possesses a causation element
that has already been judicially determined” in Ebbeler I. The trial court granted
the motion and dismissed the Ebbelers’ claims. Its order explains: “the issue of
causation in this case is collaterally estopped based on the Findings of Fact and
Conclusion of Law issued in [Ebbeler I].” The trial court then awarded attorney
fees and costs to the Escrow Defendants. The Ebbelers appeal.
II
The principal issue before us is whether the trial court erred in dismissing
the Ebbelers’ claims on summary judgment on the basis of issue preclusion.
“Summary judgment is proper where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Weaver v. City of
Everett, 194 Wn.2d 464, 472, 450 P.3d 177 (2019) (citing CR 56(c)). “We review
summary judgment orders de novo, viewing all facts and reasonable inferences in
the light most favorable to the nonmoving party.” Id. We likewise review a trial
court’s application of issue preclusion de novo. Id. at 473.
Issue preclusion is an equitable doctrine that “bars relitigation of particular
issues decided in a prior proceeding.” Id. The party asserting issue preclusion
must establish four elements: “(1) the issue decided in the earlier proceeding was
identical to the issue presented in the later proceeding; (2) the earlier proceeding
ended in a judgment on the merits; (3) the party against whom [issue preclusion]
is asserted was a party to, or in privity with a party to, the earlier proceeding; and
-7-
No. 84849-6-I
(4) application of [issue preclusion] does not work an injustice on the party against
whom it is applied.” Id. at 474. The Ebbelers assert that elements (1) and (4) have
not been satisfied and that the decisive causation issue was not actually decided
in Ebbeler I. We agree.
The first requirement to apply issue preclusion—identicality—limits issue
preclusion to “situations where the issue presented in the second proceeding is
identical in all respects to an issue decided in the prior proceeding, and where the
controlling facts and applicable legal rules remain unchanged.” Lemond v. Dep’t
of Licensing, 143 Wn. App. 797, 805, 180 P.3d 829 (2008) (quoting Standlee v.
Smith, 83 Wn.2d 405, 408, 518 P.2d 721 (1974)). Courts only extend issue
preclusion to “‘ultimate facts,’ i.e., those facts directly at issue in the first
controversy upon which the claim rests, and not to ‘evidentiary facts’ which are
merely collateral to the original claim.” McDaniels v. Carlson, 108 Wn.2d 299, 305-
06, 738 P.2d 254 (1987) (quoting Philip A. Trautman, Claim and Issue Preclusion
in Civil Litigation in Washington, 60 W ASH. L. REV. 805, 833 (1985)); see also State
v. Eggleston, 164 Wn.2d 61, 74, 187 P.3d 233 (2008) (“An ‘ultimate fact’ is a fact
‘essential to the claim or the defense.’” (quoting BLACK’S LAW DICTIONARY 629 (8th
ed. 2004)). The identicality requirement is not satisfied “[w]here an issue arises in
two entirely different contexts.” McDaniels, 108 Wn.2d at 305. Additionally, “[a]n
important clarification of the first requirement that an issue was ‘decided’ in the
earlier proceeding is that the issue must have been ‘actually litigated and
necessarily determined’ in that proceeding.” Scholz v. Wash. State Patrol, 3 Wn.
App. 2d 584, 595, 416 P.3d 1261 (2018) (quoting Shoemaker v. City of Bremerton,
109 Wn.2d 504, 508, 745 P.2d 858 (1987)).
-8-
No. 84849-6-I
Applying these legal principles here, the identicality requirement is not
satisfied. The Escrow Defendants’ causal responsibility for the failed transaction
was not actually litigated and necessarily decided in Ebbeler I because the
causation issue in Ebbeler I arose in a different context. The sole issue in Ebbeler
I was whether the Ebbelers or the Estate breached their duties under the REPSA,
and the trial court concluded—in the context of that dispute—the Ebbelers
breached. In contrast, the issues raised in Ebbeler II concern whether the Escrow
Defendants’ breach of their separate contractual and tort duties caused the
Ebbelers to breach the REPSA and, as a result, forfeit their earnest money and
lose the opportunity to purchase the home. Addressing that issue, the Ebbelers
allege the Escrow Defendants breached the Escrow Instructions by (1) failing to
correct the errors in WaFed’s loan documents, (2) failing to provide the correct
deed form to the Ebbelers and the Estate before WaFed’s wiring cutoff at 2 p.m.
on the closing date, (3) erroneously informing Andrews that he could sign the
closing documents after WaFed’s wiring cutoff, (4) failing to notify the Ebbelers that
the Estate had given conflicting instructions to WFG to withhold the Estate’s signed
closing documents from WaFed until further authorization from the Estate, and (5)
failing to provide the Estate’s signed closing documents to WaFed notwithstanding
the Estate’s instructions. The Ebbelers further allege that the Escrow Defendants
breached their duty to provide reasonably prudent escrow services, tortiously
interfered with the contractual relationship between the Ebbelers and the Estate,
and violated the CPA. None of these issues was decided by the trial court in
Ebbeler I because it was limited to resolving the dispute between the Ebbelers and
-9-
No. 84849-6-I
the Estate. Therefore, the issues presented in Ebbeler II are not identical to those
decided in Ebbeler I.
Moreover, even if the identicality requirement were satisfied here, the fourth
element—"application of [issue preclusion] does not work an injustice on the party
against whom it is applied” (Weaver, 194 Wn.2d at 474 (quoting Christiansen v.
Grant County Hospital Dist. No. 1, 152 Wn.2d 299, 307, 96 P.3d 957 (2004))—
also has not been satisfied. In determining whether applying issue preclusion will
work an injustice on the party against whom it is applied, “Washington courts focus
on whether the parties to the earlier proceeding had a full and fair hearing on the
issue.” State Farm Fire & Cas. Co. v. Ford Motor Co., 186 Wn. App. 715, 725, 346
P.3d 771 (2015) (quoting Hadley v. Maxwell, 144 Wn.2d 306, 311, 27 P.3d 600(2001)). While the purposes of issue preclusion are “to promote judicial economy
by avoiding relitigation of the same issue, to afford the parties the assurance of
finality of judicial determinations, and to prevent harassment of and inconvenience
to litigants,” these purposes must be “balanced against the important competing
interest of not depriving a litigant of the opportunity to adequately argue the case
in court.” Lemond, 143 Wn. App. at 804.
Applying issue preclusion here would work an injustice against the Ebbelers
because it would deprive them of their opportunity to obtain relief against the
Escrow Defendants. Moreover, declining to apply issue preclusion would not
prejudice the Escrow Defendants because, as nonparties to Ebbeler I, they did not
face liability from or expend substantial resources in defending against the prior
litigation between the Ebbelers and the Estate. Instead, in that case the Ebbelers
primarily litigated whether their own actions or those of the Estate prevented the
- 10 -
No. 84849-6-I
transaction from closing. Because the Ebbelers have not yet had a full and fair
hearing to adjudicate their claims against the Escrow Defendants, it would be
unjust to apply issue preclusion in this case.
Indeed, the potential for injustice is heightened in this case because the trial
court in Ebbeler I, to the extent it addressed the Escrow Defendants’ causal
responsibility for the failure of the transaction, indicated that the Ebbelers’ claims
against the Escrow Defendants may be meritorious. The court found that the
“administrative work” in completing WaFed’s loan documents that WFG arranged
for the Ebbelers to sign “appears to have directly impacted the loan being funded,”
although the court did not specify who was responsible for completing this
administrative work. The purportedly corrected loan documents that WFG sent to
WaFed still contained multiple errors and may have been sent after the closing
deadline. And Leggett apparently did not know that WaFed had a 2 p.m. cutoff to
wire the loan proceeds to WFG, nor did Leggett communicate this deadline to
Andrews when scheduling his signing appointment. These findings seemingly
point the finger at the Escrow Defendants for causing the Ebbelers to fail to secure
funding from WaFed by the closing date and ultimately breach the REPSA.
Likewise, the trial court in the instant case recognized that “it’s clear that the
[Ebbelers] and the [Escrow Defendants] had entered into a contract where WFG
had certain duties” and that “[i]t’s also clear from the record that WFG breached
some of those duties.” The court further noted that the Ebbeler I trial court’s finding
that the Ebbelers were ultimately at fault for the failure of the transaction “seems
to acknowledge impliedly that there was fault on behalf of others, including WFG,
that were involved in this transaction.” In fact, Leggett testified in her deposition
- 11 -
No. 84849-6-I
during discovery in Ebbeler II that “there was nothing that [the Ebbelers] could have
done differently to make the transaction go through.” Thus, rather than foreclose
claims against the Escrow Defendants, the findings from Ebbeler I instead open
the door to a finding in Ebbeler II that the Escrow Defendants caused the Ebbelers
to breach the REPSA and incur damages. On this record, applying issue
preclusion would be unjust.
The Escrow Defendants’ contrary arguments are unpersuasive. They rely
heavily on the discrete findings in Ebbeler I without properly considering the
context in which those findings were made. While the trial court in Ebbeler I found
that “[t]he Ebbeler’s [sic] failure to perform caused the closing to fail” and
responsibility to supply the funds at closing to complete the sale “lay entirely with
the Ebbelers and it is the ultimate failure for this purchase not happening,” the
identicality element is not satisfied where, as here, “an issue arises in two entirely
different contexts.” McDaniels, 108 Wn.2d at 305. The Ebbeler I court could not,
and did not, decide whether the Escrow Defendants caused the transaction to fail
because they were not parties to the suit and their responsibility for the failed
transaction was not material to the outcome of that litigation. To the extent the trial
court’s findings in Ebbeler I addressed the Escrow Defendants’ causal
responsibility for the failure of the transaction, those findings were not “ultimate
facts” with preclusive effect because they were not essential to the claims or
defenses raised in the prior action. See id.; Eggleston, 164 Wn.2d at 74.
The Escrow Defendants’ reliance on our unpublished opinion in Sullivan v.
Skinner & Saar, No. 77516-2-I (Wash. Ct. App. Jan. 28, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/775162.pdf, is misplaced. In Sullivan,
- 12 -
No. 84849-6-I
property owners began building a fence near their boundary line after their attorney
incorrectly advised them that they did not share an easement with their neighbors.
Id. at 2. The attorney later discovered the easement and informed the owners of
its existence, but they nevertheless continued building the fence into the
easement. Id. at 3. When the neighbors filed an action to quiet the owners’ title
to the easement, the court determined the owners had abandoned the easement
by continuing to construct their fence after their attorney notified them of its
existence. Id. at 5-6. In the owners’ subsequent malpractice action against their
attorney for damages based on their loss of the easement, our court applied issue
preclusion on appeal to bar their claims because the initial action “resolve[d] the
issue of causation of the Sullivans’ loss of their easement” by “attribut[ing]
abandonment of the easement to the Sullivans’ actions . . . after being advised [by
their attorney] that an easement was recorded.” Id. at 10. The circumstances here
are vastly different. Whereas the trial court in the initial action in Sullivan absolved
the owners’ attorney of blame and found the owners entirely responsible for their
loss of the easement, the trial court in Ebbeler I implied that the Escrow Defendants
may be at least partially to blame for the failure of the transaction. Accordingly,
Sullivan does not support the Escrow Defendants’ argument that the trial court
correctly dismissed the Ebbelers’ claims on issue preclusion grounds. 3
Lastly, the Escrow Defendants contend that applying issue preclusion to bar
the Ebbelers’ claims would not be unjust because the Ebbelers could have named
the Escrow Defendants as parties to Ebbeler I. This argument is unpersuasive
3
Furthermore, we are not bound by Sullivan because it is an unpublished opinion with no
precedential value. See GR 14.1(a).
- 13 -
No. 84849-6-I
because Washington law permits a purchaser in a real estate contract to maintain
separate causes of action against the seller and the escrow company for damages
incurred in connection with the real estate transaction. See Sanwick v. Puget
Sound Title Ins. Co., 70 Wn.2d 438, 444, 423 P.2d 624 (1967). The Escrow
Defendants’ attorney appropriately acknowledged at oral argument that the
Ebbelers were not required to join the Escrow Defendants as necessary parties to
Ebbeler I under CR 19. Thus, the Ebbelers’ decision to not name the Escrow
Defendants as parties to Ebbeler I does not require us to apply issue preclusion in
Ebbeler II.
In sum, the issues in Ebbeler I and II are not identical with regard to the
critical causation issues in the two lawsuits, and applying issue preclusion here is
unjust. For these reasons, the causation findings in Ebbeler I as set forth in
paragraph 98 of the trial court’s conclusions of law and paragraph 7 of its order of
the court (see supra at footnote 2) are not entitled to issue preclusive effect in
Ebbeler II. The trial court thus erred in dismissing the Ebbelers’ claims based on
issue preclusion principles. 4
4 In granting summary judgment solely on the basis of issue preclusion, the trial court did not
address the Escrow Defendants’ additional arguments regarding the independent duty doctrine,
lack of intent or improper purpose for the tortious interference claim, and public interest impact for
the CPA claim. Given the lack of sufficient briefing on these issues and our dispositive ruling
regarding issue preclusion principles, we decline to reach these other arguments. See Christian v.
Tohmeh, 191 Wn. App. 709, 727-28, 366 P.3d 16 (2015) (“[T]his court does not review issues not
argued, briefed, or supported with citation to authority.”) (citing RAP 10.3(a)(6)); Clark County v.
W. Wash. Growth Mgmt. Hr’gs Review Bd., 177 Wn.2d 136, 146-47, 298 P.3d 704 (2013) (appellate
courts “retain wide discretion in determining which issues must be addressed in order to properly
decide a case on appeal” and “must address only those claims and issues necessary to properly
resolving the case as raised on appeal by interested parties”). We express no opinion on these
additional issues, nor do we express any opinion on whether other findings in Ebbeler I also are
not entitled to preclusive effect in light of our ruling herein.
- 14 -
No. 84849-6-I
III
Because we reverse the trial court’s summary judgment ruling in favor of
the Escrow Defendants, we also vacate the trial court’s award of prevailing party
attorney fees and costs because the Escrow Defendants are no longer prevailing
parties. For similar reasons, we decline to award appellate attorney fees or costs
to either party. See Wash. Fed. v. Gentry, 179 Wn. App. 470, 496, 319 P.3d 823(2014) (“Because a prevailing party has not yet been determined and will not be
determined until after [further proceedings] on remand, we decline to award fees
now. That determination may be made by the trial court at such time as it makes
an award of reasonable attorney fees.”).
Reversed and remanded.
WE CONCUR:
- 15 -