Citations and pin cites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CLARITY CAPITAL 

MANAGEMENT CORPORATION, 

a Washington corporation,

Appellant,

v.

ARETHA RYAN, an individual; 

TEDDY J. NEWMAN, an 

individual; and SALISH WEALTH 

MANAGEMENT, INC., a 

Washington corporation, 

Respondents.

 No. 82022-2-I

 DIVISION ONE

 UNPUBLISHED OPINION

SMITH, J. — Clarity Capital Management Corporation appeals the trial 

court’s order granting summary judgment in favor of Aretha Ryan, Teddy 

Newman, and Salish Wealth Management Inc. Clarity claims that the court erred 

by granting summary judgment on all of its claims, by denying its motion to 

continue the summary judgment hearing, by denying its motion for 

reconsideration, and in its award of attorney fees to the respondents. Finding no 

error, we affirm.

FACTS

Multop Financial was a financial planning company in Bellingham, 

Washington, owned by Phillip Multop. Matthew Bumstead is the president and 

owner of Clarity, a financial services firm which sought to acquire Multop 

Financial’s assets. In October 2019, Clarity and Phillip Multop executed a 
No. 82022-2-I/2

2

purchase and sale agreement (PSA). The PSA sold Multop Financial’s client 

accounts and related assets to Clarity and gave Clarity the right to use the name 

“Multop Financial” for two years. It also assigned a contract between Multop 

Financial and a separate consulting firm to Clarity.

Ryan and Newman were financial advisors at Multop Financial. As 

employees, they each signed an employee manual that detailed employment 

policies and benefits. On the first page of each manual, in a section labeled 

“Introduction,” the manual stated, “The contents of this Manual shall not 

constitute nor be construed as . . . a contract between Multop Financial and any 

of its employees. The Manual is a summary of our policies, which are presented 

here only as a matter of information.” The manuals contained provisions barring 

employees from disclosing any information provided by clients and stating that an 

employee’s obligation of confidentiality would continue for three years after 

employment. Newman also signed a personnel policies document that contained 

an agreement not to compete for financial work within 50 miles for three years 

after his employment with Multop Financial. Throughout their time at Multop 

Financial, Ryan and Newman each signed various other agreements, including 

an agreement to sell Newman’s client interests to Multop and various 

confidentiality agreements that contained similar provisions.

When Clarity bought Multop Financial, Newman and Ryan met with 

Bumstead and expressed that they would continue to work for the firm. As part 

of the transfer, Ryan signed a new employee manual with Clarity that contained

the same disclaimer that it was not a contract, as well as confidentiality and 
No. 82022-2-I/3

3

noncompete provisions. About a month later, on November 4, Ryan and 

Newman gave notice of their resignation and quickly began working at Salish 

Wealth Management, which is 0.1 miles away from Clarity’s Bellingham offices. 

According to Bumstead, they immediately began contacting Clarity’s clients to 

convince them to move to Salish and made false statements to convince them to 

do so. These clients left Clarity for Salish and took with them assets worth over 

$40,000,000.

Clarity sued Ryan, Newman, and Salish. It alleged that Ryan and 

Newman had breached their contracts and alleged that Clarity had justifiably 

relied on Ryan’s and Newman’s agreements to the employee manuals. It also 

accused Ryan, Newman, and Salish of intentional interference with business 

expectancy and defamation. 

Salish, Ryan, and Newman moved for summary judgment, claiming that 

Clarity’s claims failed because it was not a party to the majority of the contracts it 

was seeking to enforce, that it was estopped from claiming the employee manual 

was a contract because of the disclaimer that it was not a contract, and that 

Washington law does not allow an employer to pursue a claim for a violation of 

its own noncontractual employee handbook. The motion also challenged 

Clarity’s defamation claim in passing, asserting that the claim was “derivative and 

not supported.”

Clarity moved to continue the summary judgment hearing so that it could 

depose Ryan, Newman, and a representative of Salish to learn more about their 

intent and actions after leaving Clarity. It also responded to the motion for 
No. 82022-2-I/4

4

summary judgment, but it did not address the defamation claim except to assert 

that respondents had not made any substantive reference to the claim beyond 

stating that it was derivative.

The trial court denied the motion for a continuance and granted the motion 

for summary judgment on all of Clarity’s claims. Clarity moved for 

reconsideration, contending that the court had misapplied the law. The court 

denied the motion for reconsideration and granted attorney fees to Ryan, 

Newman, and Salish, based on attorney fee provisions in the employee manuals 

and Multop Financial confidentiality agreements.

Clarity appeals.

ANALYSIS

Clarity challenges the trial court’s entry of summary judgment on its 

breach of contract, equitable reliance, tortious interference with business 

expectancy, and defamation claims. It also claims the trial court abused its 

discretion by denying its motion for continuance and motion for reconsideration

and by awarding attorney fees to the respondents. We affirm on all counts.

Standard of Review

We review an order on summary judgment de novo. Strauss v. Premera 

Blue Cross, 194 Wn.2d 296, 300, 449 P.3d 640 (2019). We consider “the 

evidence and all reasonable inferences from the evidence in the light most 

favorable to the nonmoving party.” Keck v. Collins, 184 Wn.2d 358, 370, 357 

P.3d 1080 (2015). “Summary judgment is appropriate only when no genuine 

issue exists as to any material fact and the moving party is entitled to judgment 
No. 82022-2-I/5

5

as a matter of law.” Keck, 184 Wn.2d at 370 (footnote omitted). A court’s 

decision on a motion to continue or a motion for reconsideration is reviewed for 

abuse of discretion. Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 90, 838 

P.2d 111, 845 P.2d 1325 (1992) (motion to continue); Weems v. N. Franklin Sch. 

Dist., 109 Wn. App. 767, 777, 37 P.3d 354 (2002) (motion for reconsideration), 

abrogated on other grounds by Fed. Way Sch. Dist. No. 210 v. Vinson, 172 

Wn.2d 756, 261 P.3d 145 (2011). The court abuses its discretion “if its decision 

is based on untenable grounds or untenable reasons.” Briggs v. Nova Servs., 

135 Wn. App. 955, 961, 147 P.3d 616 (2006), aff’d, 166 Wn.2d 794, 213 P.3d 

910 (2009).

Contract Claims

Clarity asserts that the court erred by dismissing its contract claims. 

Because Clarity had no contract with Ryan or Newman to enforce, we disagree.

1. Multop Documents

First, Clarity is not a party to any contracts between Ryan or Newman and 

Multop Financial, and therefore it may not seek to enforce them.1 Generally, 

someone who is not a party to a contract cannot seek to enforce the contract. 

Trane Co. v. Brown-Johnston, Inc., 48 Wn. App. 511, 520, 739 P.2d 737 (1987). 

However, if an owner of contract rights assigns its rights to a third party, the 

assignee “‘steps into the shoes of the assignor, and has all the rights of the 

assignor.’” Carlile v. Harbour Homes, Inc., 147 Wn. App. 193, 208, 194 P.3d 280 

 

1 For purposes of this section, we assume without deciding that Ryan and 

Newman had entered into enforceable noncompete agreements with Multop 

Financial.
No. 82022-2-I/6

6

(2008) (quoting Puget Sound Nat’l Bank v. Dep’t of Revenue, 123 Wn.2d 284, 

292, 868 P.2d 127 (1994)), review granted and dismissed, 166 Wn.2d 1015 

(2009). But contracts for professional services are personal and therefore not 

assignable. Kim v. Moffett, 156 Wn. App. 689, 704, 234 P.3d 279 (2010).

Here, while the PSA explicitly assigned Multop’s consulting contract with a

nonparty to Clarity, it did not attempt to assign or even make reference to any 

employee contracts. The only evidence that Clarity cites to support its claim that 

Multop’s noncompete agreements were assigned to Clarity is an excerpt from 

Phillip Multop’s declaration, which provides:

I am informed that Aretha Ryan and Teddy Newman have alleged 

that it was not part of [the sale of assets to Clarity] that their 

agreements with my firm would transfer to Clarity as part of this 

transaction.

. . . That is not true. They both understood that their 

agreements were transferring to Clarity as part of our transaction. In 

fact, they requested that specifically of me, to make sure they had 

job security after a new owner took over. They clearly understood 

that Matt Bumstead’s purchase of the assets under management 

was intended with them to continue as part of the team; hence 

Matt’s multiple meetings with them prior to the sale. . . .

. . . .

. . . It would make no sense for me to not transfer my 

agreements with my staff as part of the deal. That was intended all 

along. In fact, that is a main reason as to why I chose Matt 

Bumstead as the successor—because he fully intended to keep all 

staff in place.

This declaration focuses on the parties’ intention that Ryan’s and Newman’s 

employment would continue with Clarity but fails to establish that any 

confidentiality or noncompete agreements were assigned or even discussed. 

Furthermore, Multop’s claim that Ryan’s and Newman’s noncompete agreements 

were assigned to Clarity “as part of” the sale of Multop Financial’s assets to 
No. 82022-2-I/7

7

Clarity is contradicted by the plain language of the PSA, which explicitly states: 

“This Agreement . . . constitute[s] the sole and entire agreement of the parties to 

this Agreement with respect to the subject matter contained herein, and 

supersede[s] all prior and contemporaneous understandings and agreements.” 

The PSA does not purport to assign any agreements with Ryan or Newman to 

Clarity. Even if it did, such agreements for Ryan’s and Newman’s professional 

financial services would not be assignable. Kim, 156 Wn. App. at 704-05. The 

court therefore did not err by concluding that Clarity could not sue on the basis of 

Multop Financial’s agreements with Ryan or Newman.

2. Clarity Handbook

Furthermore, the Clarity employee manual signed by Ryan does not form

the basis for a breach of contract cause of action. Under Washington’s objective 

theory of contract interpretation, we attempt to “ascertain the intent of the parties 

from the ordinary meaning of the words within the contract.” Nye v. Univ. of 

Wash., 163 Wn. App. 875, 882-83, 260 P.3d 1000 (2011). Although the manual 

contained confidentiality and noncompete provisions, the first page contained an 

explicit statement that the manual “shall not constitute nor be construed as . . . a 

contract between Clarity Capital and any of its employees.” Given this plain 

disclaimer, the Clarity manual cannot be considered a contract.2

Clarity objects that the court was not permitted to rule that the handbook 

did not constitute a contract because there was insufficient discussion of this 

 

2 Because we conclude that Clarity was not a party to any enforceable 

noncompete contract in this case, we do not address its argument that the 

manuals were sufficiently specific to constitute contracts. 
No. 82022-2-I/8

8

issue in the summary judgment briefing. It is incorrect. The respondents’ 

summary judgment briefing contended that Clarity was estopped from claiming 

breach of contract because of its disclaimer that the document “shall not 

constitute . . . a contract.” This put Clarity’s contract claims at issue, and we may 

uphold summary judgment on any grounds that are established by the pleadings 

and supported by the record. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 

1027 (1989) (affirming summary judgment on basis of plaintiff’s failure to meet its 

burden of proof even where this was not discussed below).

3

 

3. Justifiable Reliance

Clarity next contends that even if its employment manual did not constitute 

a contract, it “justifiably relied on the representations” of Ryan and Newman that 

they agreed to the noncompetition and confidentiality clauses in the Clarity 

manual and various Multop Financial documents. Clarity’s allegations under this 

claim precisely tracked the test from Thompson v. St. Regis Paper Co., 102 

Wn.2d 219, 230, 685 P.2d 1081 (1984), which requires an employee seeking to 

enforce promises in an employee handbook to prove “(1) whether any 

statements therein amounted to promises of specific treatment in specific 

situations; (2) if so, whether the employee justifiably relied on any of these 

promises; and, finally, (3) whether any promises of specific treatment were 

breached.”4 Bulman v. Safeway, Inc., 144 Wn.2d 335, 340-41, 27 P.3d 1172 

 

3 This reasoning also applies to Clarity’s justifiable reliance and implied 

contract claims.

4 Clarity’s complaint under its equitable reliance claim alleged that (1) “The 

statements in the Employee Manual and its associated documents regarding 

confidentiality of client information and non-solicitation amount to promises of 
No. 82022-2-I/9

9

(2001). In Thompson, our Supreme Court noted after setting forth this cause of 

action that “employers will not always be bound by statements in employment 

manuals. They can specifically state in a conspicuous manner that nothing 

contained therein is intended to be part of the employment relationship and are 

simply general statements of company policy.” 102 Wn.2d at 230.

Thompson’s reasoning relied on the employer’s “substantial control over 

both the working relationship and his employees.” 102 Wn.2d at 229. We 

therefore decline to extend it to an employer seeking to enforce a manual against 

its employees, especially where, as here, the employer took advantage of the 

exception in Thompson and conspicuously noted that the manual was not a 

contract and was only an informational summary of Clarity’s policies.

Clarity objects that it was not relying on Thompson but instead was 

making a generic claim that it justifiably relied on Ryan’s and Newman’s 

representations.5 We reject its assertion that it could justifiably rely on Ryan’s 

assent to a document drafted by Clarity, where Clarity specifically indicated that 

the contents “shall not constitute nor be construed as a promise of employment 

or as a contract between Clarity Capital and any of its employees.” Clarity also 

 

specific treatment in specific situations,” (2) “[Clarity] justifiably relied on the 

representations of Ryan and Newman,” and (3) “Ryan and Newman breached 

the promises.” 

5 This appears to be a claim based on promissory estoppel, although 

Clarity does not characterize it as such. Promissory estoppel permits a party to 

enforce a noncontractual promise if it can establish “(1) A promise that (2) the 

promisor should reasonably expect to cause the promisee to change his position 

and (3) that does cause the promisee to change his position (4) justifiably relying 

upon the promise, in such a manner that (5) injustice can be avoided only by 

enforcement of the promise.” Kim v. Dean, 133 Wn. App. 338, 348, 135 P.3d 

978 (2006).
No. 82022-2-I/10

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could not justifiably rely on Ryan’s or Newman’s promises to Multop Financial 

when those promises were specific to their employment with Multop Financial.

Clarity also disagrees on the grounds that the court should not have 

granted summary judgment because whether an employee manual creates a 

contract is an issue of fact. While this is generally true, “if reasonable minds 

cannot differ as to whether language sufficiently constitutes an offer or a promise 

of specific treatment in specific circumstances, as a matter of law the claimed 

promise cannot be part of the employment relationship.” Swanson v. Liquid Air 

Corp., 118 Wn.2d 512, 522, 826 P.2d 664 (1992); Quedado v. Boeing Co., 168 

Wn. App. 363, 373-75, 276 P.3d 365 (2012) (as a matter of law, employee 

documents that contained disclaimer of contractual rights on first page did not 

create binding promise). Similarly, though “justifiable reliance is normally a 

question of fact, summary judgment is appropriate if reasonable minds could 

reach but one conclusion.” Cornerstone Equip. Leasing, Inc. v. MacLeod, 159 

Wn. App. 899, 905, 247 P.3d 790 (2011). Because the facts here can only lead 

to the conclusion that Clarity did not justifiably rely on a promise, summary 

judgment on this issue was proper.

4. Implied Contract

Finally, the trial court properly granted summary judgment on Clarity’s 

implied contract claim. Clarity claimed that even if the employment documents 

discussed above were not contracts, the “actions of the parties constitute an 

implied contract.” Both implied contracts and express contracts “grow out of the 

intentions of the parties to the transaction, and there must be a meeting of minds 
No. 82022-2-I/11

11

whether the contract be express or implied.” Troyer v. Fox, 162 Wash. 537, 554, 

298 P. 733 (1931) (emphasis omitted). Here, viewed in the light most favorable 

to Clarity, Ryan and Newman’s actions consist of working for Clarity for a month, 

expressing an intent to stay there, and abiding by corporate policies while they 

worked there. Nothing in these actions establishes an intent to be bound by a 

covenant not to compete after leaving Clarity. We would be especially wary to

find such an agreement through the actions of the parties, given that “public 

policy requires us to carefully examine covenants not to compete, even when 

protection of a legitimate business interest is demonstrated, because of equally 

competing concerns of freedom of employment and free access of the public to 

professional services.” Knight, Vale & Gregory v. McDaniel, 37 Wn. App. 366, 

370, 680 P.2d 448 (1984). We therefore affirm the court’s grant of summary 

judgment on Clarity’s breach of contract claims.

Tortious Interference with Business or Contractual Expectancy

Clarity challenges the court’s entry of summary judgment on its claim of 

tortious interference with business expectancies or contractual expectancies. 

“The elements of tortious interference are: (1) The existence of a valid business 

expectancy; (2) defendant's knowledge of that expectancy; (3) defendant's 

intentional interference with that expectancy; (4) defendant's improper purpose or 

use of improper means in so interfering; and (5) the plaintiff's resultant damages.” 

Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732, 745, 935 

P.2d 628 (1997). Here, any interference with Clarity’s business expectancies

was not improper because Salish, Ryan, and Newman retained the right to 
No. 82022-2-I/12

12

compete with Clarity for business. Goodyear, 86 Wn. App. at 746. Therefore, 

the court did not err by entering summary judgment on this issue.

Defamation Claim

Clarity next challenges the court’s grant of summary judgment on its 

defamation claim, contending that the respondents did not meet their burden to 

show the absence of an issue of material fact. We disagree.

The purpose of summary judgment is to “avoid an unnecessary trial when 

there is no genuine issue of material fact.” Jacobsen v. State, 89 Wn.2d 104, 

108, 569 P.2d 1152 (1977). When a defendant brings a motion for summary 

judgment, “the moving party bears the initial burden of showing the absence of 

an issue of material fact.” Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 

P.2d 182 (1989). If the moving party does so, then burden shifts to the plaintiff. 

Young, 112 Wn.2d at 225. “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 summary 

judgment is proper. Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 

477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

The moving defendant can meet their burden by showing that there is an 

absence of evidence to support the plaintiff’s case. Young, 112 Wn.2d at 225 

n.1. In such a case, the moving party does not need to support the motion with 

affidavits but must still identify the portions of the record which demonstrate the 

absence of a genuine issue of material fact. White v. Kent Med. Ctr., Inc., 61 

Wn. App. 163, 170, 810 P.2d 4 (1991). In White, White sued for medical 
No. 82022-2-I/13

13

malpractice and the defendants moved for summary judgment, in part on the 

grounds that White “lacked any admissible expert testimony regarding the 

[defendants’] standard of care.” 61 Wn. App. at 165-66. White responded by 

pointing to excerpts of depositions that she claimed did establish the standard of 

care, and it was not until their reply that the defendants pointed to evidence 

supporting their claim. White, 61 Wn. App. at 166-67, 170. We noted that the 

defendants “only marginally complied” with their initial burden, but did not reverse 

on those grounds and instead acknowledged that “[i]t is difficult to prove a 

negative, and in some circumstances the only way that the moving party will be 

able to show that there is no material issue of fact is by way of reply to the 

responding party’s citations to the record.” White, 61 Wn. App. at 170-71. We 

concluded by emphasizing “that only rarely will a moving party comply with the 

strict requirements [of the initial burden] without having made specific citations to 

the record in its opening materials.” White, 61 Wn. App. at 171.

We conclude that this is one of those rare instances. The respondents’

motion asked the court to dismiss Clarity’s entire lawsuit and stated in particular 

that Clarity’s defamation claim was “derivative and not supported.” While the 

respondents’ discussion of the defamation claim was notably cursory, there was 

a similarly marked lack of evidence to support defamation in the record. In fact, 

the only evidence in support of this claim was a declaration from Bumstead which 

stated:

Ryan, Newman, and Salish have engaged in a systematic 

campaign of false statements to Clarity clients with the goal of 

misleading Clarity clients and taking them . . . . 
No. 82022-2-I/14

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. . . The false statements . . . have included statements

about the following:

 That Multop is no longer in business.

 That Clarity’s owner and main producer does not work in 

the business.

 That the remaining advisors at Clarity have no 

experience.

 That the previous owner of Multop Financial, Phil Multop, 

is not working in the business any longer.[6]

These statements are a virtually verbatim repetition of Clarity’s allegations in its 

complaint.7 See LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975) 

(adverse party in summary judgment “may not rest on mere allegations in the 

pleadings but must set forth specific facts showing that there is a genuine issue 

for trial”). They are also woefully inadequate as evidence, given their lack of 

foundation and the fact that they appear to be hearsay. Dunlap v. Wayne, 105 

Wn.2d 529, 535-36, 716 P.2d 842 (1986) (summary judgment dismissal of 

defamation claim was proper where only evidence of false statements was based 

on inadmissible hearsay). We have noted that it is “difficult to prove a negative” 

and conclude that in this case, the respondents met their burden by pointing out 

that Clarity had failed to provide support for its defamation claim. White, 61 Wn. 

App. 170-71. Clarity subsequently failed to point to any evidence of defamation 

in its responsive pleading, apparently because of its belief that the respondents 

 

6 The respondents note that in our review of a summary judgment order, 

we “‘consider only evidence and issues called to the attention of the trial court.’” 

Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460, 462, 909 P.2d 291 (1996)

(emphasis omitted) (quoting RAP 9.12). This declaration was not called to the 

attention of the trial court by any party at summary judgment, and we discuss it 

only to the extent that it bears on whether the respondents met their burden.

7 The only alteration is that Bumstead’s declaration also attributes the 

“systematic campaign” to Salish, not just Ryan and Newman.
No. 82022-2-I/15

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had a burden to “go forward with some measure of affirmative evidence.” This 

belief was incorrect. Respondents met their burden for summary judgment by 

pointing out Clarity’s failure to offer any support for its defamation claim. 

Accordingly, we conclude that the trial court did not err by granting summary 

judgment on the defamation claim.

Motion for Continuance

Clarity also claims that the court abused its discretion by denying its 

motion for continuance. We disagree.8 

If a party shows that they cannot present facts essential to justify their 

opposition to a motion for summary judgment, the court “may order a 

continuance to permit affidavits to be obtained or depositions to be taken.” 

CR 56(f). The court may deny a motion to continue a motion for summary 

judgment if “1) the moving party does not offer a good reason for the delay in 

obtaining the evidence; 2) the moving party does not state what evidence would 

be established through the additional discovery; or 3) the evidence sought will 

not raise a genuine issue of fact.” Coggle v. Snow, 56 Wn. App. 499, 507, 784 

P.2d 554 (1990).

 

8 We reject the respondents’ contention that Clarity waived this argument 

by participating in the summary judgment hearing without objecting, even though 

Clarity had already filed a motion to this effect. The respondents cite no 

Washington law to support this contention. See DeHeer v. Seattle PostIntelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are 

cited in support of a proposition, the court is not required to search out 

authorities, but may assume that counsel, after diligent search, has found 

none.”).
No. 82022-2-I/16

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Here, Clarity moved for a continuance in order to depose Ryan, Newman, 

and a representative of Salish. Clarity claims this continuance was necessary in 

order to ascertain Ryan’s and Newman’s intent and their reliance on the fact that 

they did not have contracts with Clarity restricting their right to move to Salish.9 

However, contrary to Clarity’s claim, information regarding Ryan’s and Newman’s 

intent or their reliance on Clarity’s representation that the manual was not a 

contract would have no impact on the court’s determinations that there was no 

valid contract and that Clarity could not reasonably rely on Ryan’s and Newman’s

representations. Thus, because the information Clarity sought failed to raise a 

genuine issue of material fact, the court did not abuse its discretion by denying 

the motion to continue.

Motion for Reconsideration

Clarity moved for reconsideration after the court entered summary 

judgment on the basis that the court made errors of law. Because we hold that 

the court did not err by entering summary judgment, we also conclude that it did 

not abuse its discretion by denying the motion for reconsideration.

Attorney Fees

Finally, Clarity challenges the trial court’s award of attorney fees to the 

respondent. Clarity claims that (1) the court erred by awarding attorney fees

because there was no contract providing for attorney fees, (2) even if attorney 

 

9 Clarity also claims that it needed to “explor[e] . . . the role that Salish 

played in encouraging these defections, as well as the specific contacts [Ryan 

and Newman] made with Clarity clients.” However, Clarity did not identify this as 

evidence it was seeking below, and so we decline to consider it in determining 

whether the trial court abused its discretion. 
No. 82022-2-I/17

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fees were justified, the court erred by awarding attorney fees for work on the 

tortious interference claim, and (3) the court’s fee award was unreasonable. We 

disagree.

1. Basis for Attorney Fee Award

Clarity first contends that the court erred by awarding attorney fees based 

on the attorney fee provision in the employee manuals. We disagree.

Whether a party is entitled to attorney fees is an issue of law which we 

review de novo. Ethridge v. Hwang, 105 Wn. App. 447, 460, 20 P.3d 958 (2001). 

RCW 4.84.330 provides that, “[i]n any action on a contract” that provides for 

attorney fees to a party seeking to enforce the contract, the prevailing party is 

entitled to reasonable attorney fees. We have interpreted this language to 

“encompass[ ] any action in which it is alleged that a person is liable on a 

contract.” Herzog Alum., Inc. v. Gen. Am. Window Corp., 39 Wn. App. 188, 197, 

692 P.2d 867 (1984). Our Supreme Court has affirmed that this is true “even 

when the contract containing the attorneys fee provision is invalidated.” Labriola 

v. Pollard Grp., Inc., 152 Wn.2d 828, 839, 100 P.3d 791 (2004). The attorney fee 

provision also applies if an assignee seeks to enforce the agreement. See, e.g., 

Sunkidd Venture, Inc. v. Snyder-Entel, 87 Wn. App. 211, 212 n.1, 217, 941 P.2d 

16 (1997) (assignee of lease would be entitled to attorney fees if it prevailed on 

remand).

Here, Clarity sued for breach of contract based on the confidentiality and 

noncompete policies contained in the employee manuals and Newman’s sale of 

client account interests. Although the trial court concluded, and we agreed, that 
No. 82022-2-I/18

18

there was no assignment of contracts to Clarity and the manuals do not 

constitute contracts, Ryan and Newman are entitled to attorney fees because 

Clarity was suing for breach of contract based on these documents. If Clarity 

had been successful in showing that there was an assignment or that the 

manuals were contracts, it would be entitled to attorney fees for breach of 

contract. Awarding fees to Ryan and Newman thus comports with the “remedial 

purpose behind the enactment of RCW 4.84.330—that unilateral attorney’s fees 

provisions be applied bilaterally.” Mut. Sec. Fin. v. Unite, 68 Wn. App. 636, 643, 

847 P.2d 4 (1993) (holding that party was not entitled to attorney fees where 

other party would not have been entitled to attorney fees if it had prevailed).

Clarity disagrees and contends that we should follow Wallace v. Kuehner, 

111 Wn. App. 809, 820, 46 P.3d 823 (2002), in which Division Two declined to 

apply the holding of Herzog to a case where the parties seeking fees did not 

intend to form a contract. However, as the court noted in that case, “Division 

One has firmly embraced the concept first presented in Herzog.” Wallace, 111 

Wn. App. 821. Indeed, we have applied Herzog to cases like this one, where a 

party prevailed on a breach of contract claim by showing that there was no 

evidence it had ever entered into the contract that provided for attorney fees. 

Bogle & Gates, P.L.L.C. v. Holly Mountain Res., 108 Wn. App. 557, 562-63, 32 

P.3d 1002 (2001). We do so again here.

2. Attorney Fees for Tortious Interference

Clarity next contends that the trial court erred by awarding attorney fees to 

Salish on the tortious interference claims. However, “[t]he court may award 
No. 82022-2-I/19

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attorney fees for claims other than breach of contract when the contract is central 

to the existence of the claims, i.e., when the dispute actually arose from the 

agreements.” Deep Water Brewing, LLC v. Fairway Res. Ltd., 152 Wn. App. 

229, 278, 215 P.3d 990 (2009). Here, Clarity alleged tortious interference on the 

basis that it had contracts with Ryan and Newman, and that Ryan, Newman, or 

Salish were wrongfully interfering with Clarity’s interests in those contracts.

10

 

Thus, the agreements are central to Clarity’s tortious interference claims. We 

have held that where a contract is central to a tortious interference claim against 

a given party, attorney fees may be appropriate even if it was not a party to the 

contract. Deep Water, 152 Wn. App. at 278-79. This is the case here. 

Clarity’s reliance on Tradewell Grp., Inc. v. Mavis, 71 Wn. App. 120, 857 

P.2d 1053 (1993), is not persuasive. In that case, we denied attorney fees on a 

tortious interference claim because it did not arise out of a contract. Tradewell, 

71 Wn. App. at 130. We therefore affirm the trial court’s award of attorney fees 

for the tortious interference claims.

3. Reasonableness of Fee Award

Finally, Clarity contends that the amount of fees awarded was 

unreasonable. “A trial judge is given broad discretion in determining the 

reasonableness of an award, and in order to reverse that award, it must be 

shown that the trial court manifestly abused its discretion.” Ethridge, 105 Wn. 

 

10 Clarity’s complaint alleged specifically that “[t]he actions of Salish 

constitute an intentional interference inducing a breach of Clarity’s reasonable 

expectancy in compliance with the terms of the confidentiality and non-compete 

provisions of the Employee Manual and other policy statements.” 
No. 82022-2-I/20

20

App. at 460. Here, the court found that “the fees requested by [the respondents] 

are reasonable and reflect the time expended, the difficulty of the questions 

involved, the skill required, the customary charges of other attorneys, and the 

resulting benefit to the client.” It also found that, while the respondents were not 

entitled to fees for Clarity’s defamation claim, the respondents “have 

appropriately removed billing records referencing that claim, and have reduced

all entries following the summary judgment hearing by half. These reductions 

appropriately reflect time reasonably spent on the defamation claim.” Clarity 

does not challenge these findings, so they are verities on appeal. State v. 

O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). We therefore reject Clarity’s 

argument that the fee award is unreasonable. Furthermore, because Ryan, 

Newman, and Salish have prevailed on appeal, they are entitled to reasonable 

attorney fees for time spent on all issues other than the defamation claim. 

Herzog, 39 Wn. App. at 197.

We affirm.

 

WE CONCUR: