Billie E. Getschmann Skyles, App. V. Mark Hopkins, And Georgia Hopkins, Res.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MARK HOPKINS and GEORGIA
HOPKINS, husband and wife,
Respondents,
V.
KIRK and JENNIFER BANKS, as
assignees for MRS. BILLIE E.
GETSCHMANN SKYLES,
Appellants.
No. 77218-0-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: January 22, 2019
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LEACH, J. — Kirk and Jennifer Banks' appeal the trial court's summary
judgment in favor of Mark and Georgia Hopkins.2 Because Banks never
acquired part of the disputed claim and their assignor's contract with Hopkins
bars the balance, we affirm.
BACKGROUND
Billie Getschmann Skyles owned 20 acres of land near Gold Bar,
Washington. Banks lived on the land and helped Skyles. In February 2014,
Skyles signed a purchase and sale agreement (PSA) to sell about 10 acres to
Hopkins, her neighbors. The PSA included an addendum providing for the
transfer of .75 acres of the parcel after the parties completed a boundary line
We refer to Kirk and Jennifer Banks collectively as Banks. Jennifer
Banks also appears as Jennifer Wilson in the record.
2 We refer to Mark and Georgia Hopkins collectively as Hopkins.

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adjustment (BLA). It also stated that all personal property remaining on the 10
acres when Hopkins took possession at closing would be considered abandoned,
with Hopkins free to retain or dispose of this property in their sole discretion.
Sale of 9.25 acres closed on May 8, 2014. After a surveyor completed the
BLA paperwork in June 2014, Skyles refused to sign it. Hopkins filed a lawsuit to
enforce the transfer of the .75 acres in November 2014. Skyles did not appear at
the default judgment hearing, and the trial court entered a default judgment in
favor of Hopkins. Skyles filed a motion to vacate the judgment, which the trial
court denied. This court affirmed that decision in an earlier appea1.3 Banks then
filed a motion to vacate, which is the subject of a separate appea1.4
Skyles purportedly signed a document assigning certain rights and
interests to Banks on August 20, 2015. This document assigns Skyles's interest
in the PSA, all claims asserted in Snohomish County Superior Court No. 14-2-
07395,5 and all claims asserted or which could be asserted by Skyles against
any law office owned by or related to B. Craig Gourley and Snohomish Escrow.
On August 26, 2015, Skyles filed a lawsuit under Snohomish County
Superior Court No. 15-2-05719-5. Skyles asserted five claims for relief: (1) a
declaration that the PSA was void because it was unconscionable and procured
by duress, (2) reformation of the PSA sales price to a market rate, (3) unjust
3 Hopkins v. Banks, No. 74068-7-1, slip op. at 2 (Wash. Ct. App. Apr. 3,
2017)(unpublished), http://www.courts.wa.gov/opinion/pdf/740687.pdf.
4 Hopkins v. Banks, No. 77214-7-1.
5 The parties intended to describe Hopkins v. Banks, Snohomish County
Superior Court No. 14-2-07395-8, but omitted the last digit of the cause number.
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No. 77218-0-1 / 3
enrichment and estoppel, (4) breach of contract, and (5) conversion of and
damage to Skyles's personal property. Skyles died on September 26, 2015. The
trial court substituted Banks as plaintiffs.
On Hopkins's summary judgment request, the trial court dismissed all
claims except the conversion claim because they were compulsory counterclaims
required to be made in the earlier lawsuit started by Hopkins to enforce the PSA
and thus precluded in a separate lawsuit. Hopkins did not ask for dismissal of
the conversion/damage claim in this request.
Later, Hopkins asked the court to dismiss the remaining
conversion/damage claim. Hopkins relied on the PSA provision that any
personal property left on the transferred property was "deemed abandoned."
Because this provision allowed Hopkins full discretion to dispose of any personal
property on the land after closing, they claimed that their actions in 2015 were
not conversion.
Banks responded by stating that Hopkins had ignored allegations in the
complaint describing acts of conversion in 2014 before Hopkins took possession
of the property. Hopkins replied with a new theory for relief, that any claim for
conversion before they took possession had to be asserted as a compulsory
counterclaim in their original lawsuit and was now barred by the doctrine of claim
preclusion. They also reasserted their claim that the PSA barred any
conversion/damage claim for actions after the PSA closing date.
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No. 77218-0-1 /4
The trial court granted Hopkins's request and dismissed the
conversion/damage claim with prejudice.6 Banks appeals dismissal of the
conversion/damage claim only.
STANDARD OF REVIEW
We review a summary judgment decision de novo, viewing all facts and
reasonable inferences in the light most favorable to the nonmoving party.7 We
will affirm a summary judgment decision when the record demonstrates no issue
about any material fact and the moving party is entitled to judgment as a matter
of law.8
ANALYSIS
We may affirm a trial court decision on any grounds adequately supported
by the record and do so, in part, here.9. The conversion/damage claim can be
divided into two parts, one for actions alleged to have occurred before Hopkins
closed and took possession (in May 2014 for 9.25 acres and in January 2015 for
.75 acres) and one for acts alleged to have occurred after closing. For the
prepossession claims, Banks contend that the court should not have considered
issue preclusion because Hopkins did not raise this issue in their initial request.
They first raised it in their reply to Banks's answer. They also contend that the
6 The trial court also awarded Hopkins attorney fees and costs under the
PSA.
7 Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965
(2012).
8 Elcon Const., 174 Wn.2d at 164.
9 State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
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doctrine of claim preclusion does not apply and that issues of fact prevent
summary judgment.
Skyles filed this lawsuit on August 26, 2015. She died on September 26,
2015. If, as the Banks assert, the actions supporting the conversion/damage
claim happened in 2014, Skyles did not assign that claim to Banks. So they
cannot pursue it. And the PSA bars claims based on actions that occurred after
Hopkins took possession. So the trial court properly dismissed the entire
conversion/damage claim.
Actions Before Hopkins Took Possession at Closing
Banks assert that Hopkins converted and damaged Skyles' property
before the Hopkins took possession at closing.
In Washington state, only a "real party in interest" may prosecute a
lawsuit.1° This reflects a core requirement of the adversarial system, that cases
should only be "brought and defended by the parties whose rights and interests
are at stake."11 If the plaintiff dies, a personal representative or an assignee may
step into the shoes of the deceased plaintiff.12
10 CR 17(a).
11 Riverview Cmtv. Grp. v. Spencer & Livingston, 181 Wn.2d 888, 893,
337 P.3d 1076 (2014).
12 CR 17(a); Cooper v. Runnels, 48 Wn.2d 108, 109-10, 291 P.2d 657
(1955).
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No. 77218-0-1/6
Banks rely on Skyles's putative13 assignment to establish their right to
pursue this claim. But the assignment does not assign any preclosing
conversion/damage.
We interpret the words of a contract based on their "ordinary, usual, and
popular meaning unless the entirety of the agreement clearly demonstrates a
contrary intent."14 Here, the assignment applied only to claims arising under the
PSA or against the attorney and escrow company involved in closing the sale to
Hopkins. It assigned "any and all .. . rights, title and/or interest in the February
27, 2014 Purchase and Sale Agreement and Boundary Lot [sic] Adjustment." It
also assigned
any and all claims which are now asserted or which could be
asserted by Assignors against Snohomish Escrow and any law
offices owned by or related to lawyer B. Craig Gourley. . . . This
assignment also includes, but is not limited to, any and all claims
asserted in or as a result of[Hopkins v. Skyles1 Snohomish County
Superior Court No. 14-2-07395 (the lawsuit')."15
It states that the
Assignor's intent [wa]s to vacate the Default Judgment and to have
the Hopkins pay for any damages related to or resulting from the
wrongly taken Default Judgment, to have the Hopkins pay a market
price for the real property and for all converted, taken or damaged
personal property related to the PSA transaction
13 We characterize the assignment as "putative" because Banks question
Skyles's competency when she signed the PSA and make no claim that it was
restored before they claim she later signed the assignment.
14 Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503-04,
115 P.3d 262 (2005) (citing Universal/Land Constr. Co. v. City of Spokane, 49
Wn. App. 634,637, 745 P.2d 53(1987)).
15 "The Lawsuit" refers to the suit Hopkins originally filed to enforce the
PSA. It includes the default judgment, the motions to vacate, and the appeals
related to that suit.
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and "to hold Snohomish Escrow and B. Craig Gourley responsible for their role in
exploiting an elder, vulnerable Washington Citizen." The document does not
assign any tort claims not arising out of the PSA or the closing. It did not assign
to Banks conversion/damage claims asserted in this lawsuit based on alleged
actions by Hopkins before closing.
Banks's argument against claim preclusion supports this conclusion.
Banks contend that the conversion claim and the PSA litigation do not share an
identity of cause of action, so claim preclusion does not apply. If, as Banks
claim, the conversion claim is sufficiently different from actions based on the PSA
to avoid claim preclusion, the language of the assignment is not sufficient to
assign it.
Banks are not real parties in interest for prepossession
conversion/damage claims.
Actions After Closing/Possession
Banks's briefing does not make clear whether they continue to pursue
postpossession conversion/damage claims. If they do, the PSA bars those
claims.
Paragraph 14 of the PSA addresses personal property on the property
sold to Hopkins:
14. Personal Property: Transferred with this sale is the
following personal property: Mobile home; refrigerator, stove, water
heater; installed electrical fixtures, lights and light bulbs; and all
bathroom and other fixtures. Any other personal property left on or
in the Subject Property at the time of possession by Purchaser shall
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No. 77218-0-1 /8
be deemed abandoned by Seller and Purchaser shall have the right
to retain or dispose of such property in Purchaser's solo discretion.
This means that once the sale to Hopkins closed, Skyles had no right to any
personal property left on it and thus no right to claim conversion or damage after
the closing on May 8, 2014. Banks have no greater right than Skyles and thus
no right either.
Additional Issues Raised
In view of our disposition of this case, we do not need to address the
remaining issues raised by Banks.
Attorney Fees
states,
Both parties request attorney fees and costs based on the PSA. The PSA
In the event that any suit or other proceeding is instituted by either
party to this [PSA] or that any costs, expenses or attorney fees are
incurred or paid by either party in enforcing this [PSA], the
substantially prevailing party, as determined by the court or in the
proceeding, shall be entitled to recover its reasonable attorneys
fees and all costs and expenses incurred relative. to such suit or
proceeding from the substantially non-prevailing party, in addition to
such other relief as may be awarded.
Hopkins have prevailed. Any conversion claims raised for acts after May
2014 directly related to enforcement of the PSA. Provided they comply with RAP
18.1, Hopkins are entitled to attorney fees for this appeal related to enforcement
of the PSA.
CONCLUSION
We affirm. Skyles did not assign her rights in a conversion/damage claim
for her personal property to Banks. Banks are not real parties in interest to any
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No. 77218-0-1 /9
claims for actions before closing. Skyles transferred her rights in the personal
property to Hopkins on closing and had no postclosing claim to assign.
WE CONCUR:
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