IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JONATHAN WESLEY EBBELER AND 

ELIZABETH ASHLEY EBBELER, husband 

and wife,

Appellants, 

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.

No. 84849-6-I

DIVISION ONE

UNPUBLISHED OPINION

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

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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 
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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.
No. 84849-6-I

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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 
No. 84849-6-I

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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.
No. 84849-6-I

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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.
No. 84849-6-I

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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 
No. 84849-6-I

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(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 WASH. 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)). 
No. 84849-6-I

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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 
No. 84849-6-I

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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 
No. 84849-6-I

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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 
No. 84849-6-I

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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, 
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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). 
No. 84849-6-I

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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.
No. 84849-6-I

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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: