IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

ROBERT E. MARTIN, No. 53494-1-II

Respondent,

v.

KIMBERLY HAN, and KITSAP COUNTY, UNPUBLISHED OPINION

Appellants.

MELNICK, J. — Kimberly Han appeals an order granting summary judgment to Robert 

Martin on a claim of unjust enrichment. Han argues the court erred by granting summary judgment 

to Martin because a material fact is in dispute. Han also argues Martin cannot bring an unjust 

enrichment claim because he was a volunteer. Lastly, Han argues that if summary judgment is 

affirmed, the judgment amount was incorrect. We affirm but remand to correct the judgment 

amount. 

FACTS

Han and Martin met each other after she became his neighbor. They became good friends. 

Han provided home care for Martin during an illness, and Martin helped Han with home 

maintenance. At some point, Han acquired a bank loan for business purposes. Martin helped Han 

acquire the loan by providing his certificates of deposit (CDs) as collateral. At some point after 

Han and Martin signed the loan document, they became estranged. 

Filed

Washington State

Court of Appeals

Division Two

December 1, 2020
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Han made payments on the loan until she could not pay a balloon payment that became 

due. As a result, Han defaulted on the loan and the bank used Martin’s CDs to pay the outstanding 

balance. Martin sued Han for unjust enrichment seeking the value of the CDs. 

In a pretrial deposition, Han stated that she believed the purpose of the loan was a gift from 

Martin. Han also stated that Martin wanted to help her with the loan so she could build her credit. 

Q: You say, “The purpose of the loan”—and the loan refers to the Kitsap Credit 

Union loan that you took out with Mr. Martin as a cosigner; is that right?

A: Yes.

Q: Okay. And you say the purpose of the loan was actually a gift to help you 

recover or rebuild your credit?

A: Yes

Q: So what do you mean by that?

A: He said, since I needed help, so he said he want to help me out due to my credit.

Clerk’s Papers (CP) at 55-56

When asked about the CDs, Han said that Martin had intended to give her the CDs upon 

his death and that he had probably used them to pay off the loan instead. Han admitted that she 

received the loan and that she used it for her benefit. Han understood that she was responsible for 

repaying the loan. Han admitted that she defaulted on the loan. Han also admitted that Martin’s 

CDs were used to pay the balance of the loan. 

Martin moved for summary judgment. To support his summary judgment motion, Martin 

relied on Han’s deposition, interrogatory responses, and other discovery she provided. The trial 

court granted his motion and awarded Martin $296,779.73. Han appeals. 

ANALYSIS

I. STANDARD OF REVIEW

We review orders of summary judgment de novo, and perform the same inquiry as the trial 

court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). We consider the facts 
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and the inferences from the facts in the light most favorable to the nonmoving party. Bremerton 

Pub. Safety Ass'n v. City of Bremerton, 104 Wn. App. 226, 230, 15 P.3d 688 (2001). A party is 

entitled to summary judgment if the pleadings, affidavits, and depositions establish that there is no 

genuine issue of material fact and that the party is entitled to judgment as a matter of law. CR 

56(c); Lybbert, 141 Wn.2d at 34.

II. GIFT

Han argues that a dispute of a material fact exists as to whether Martin intended to give her 

a gift. We disagree. 

“The essential elements of a valid gift are: (1) an intention on the part of the donor to 

presently give; (2) a subject matter capable of passing by delivery; and (3) an actual delivery at 

the time.” Henderson v. Tagg, 68 Wn.2d 188, 192, 412 P.2d 112 (1966). The donor must 

demonstrate a “clear and unmistakable intention” to make a gift. In re Gallinger's Estate, 31 

Wn.2d 823, 829, 199 P.2d 575 (1948). 

The undisputed facts, taken in a light most favorable to Han, are that she received the 

proceeds of the bank loan. She used the money for her benefit and she intended to pay the bank 

back for the loan. Martin co-signed the loan with the expectation that Han would pay it back. Han 

defaulted on the loan and the bank used the collateral posted by Martin to pay off the default. 

Han argues that her deposition testimony, quoted above, shows a material disputed fact 

exists. However, Han mischaracterizes her testimony, as does the dissent, even when viewing it 

in the light most favorable to her. The loan is from the bank, not Martin. Her deposition testimony 

does not demonstrate that Martin intended to pay off the bank loan as a gift. In addition, Han 

speculates as to Martin “probably” giving the CDs to her now instead of after he dies. CP at 66. 

Martin did not give Han the CDs. He allowed them to be used as collateral for a loan that Han 
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knew she had to pay off. Han does not provide any facts showing that Martin gifted the CDs to 

her. 

Because there are no material facts in dispute, the court did not err in granting summary 

judgment. 

III. UNJUST ENRICHMENT

Han argues that Martin cannot bring an unjust enrichment claim because he voluntarily 

provided his CDs as collateral, which makes him a volunteer. We disagree. 

An unjust enrichment claim, has three elements: that “(1) the defendant receives a benefit, 

(2) the received benefit is at the plaintiff's expense, and (3) the circumstances make it unjust for 

the defendant to retain the benefit without payment.” Young v. Young, 164 Wn.2d 477, 484-85, 

191 P.3d 1258 (2008). Additionally, the plaintiff conferring the benefit must not be a volunteer. 

Lynch v. Deaconess Med. Ctr., 113 Wn.2d 162, 165, 775 P.2d 681 (1989); Ellenburg v. Larson 

Fruit Co., Inc., 66 Wn. App. 246, 251-52, 835 P.2d 225 (1992).

Courts look to the surrounding circumstances to determine whether a person is a volunteer, 

including “(1) whether the benefits were conferred at the request of the party benefited, (2) whether 

the party benefited knew of the payment, but stood back and let the party make the payment, and 

(3) whether the benefits were necessary to protect the interests of the party who conferred the 

benefit or the party who benefited thereby.” Larson Fruit Co., 66 Wn. App. at 251-52 (internal 

citations omitted). A volunteer is a person who pays someone’s financial obligations without 

request from the person benefitted. Newcomer v. Masini, 45 Wn. App. 284, 288-89, 724 P.2d 1122 

(1986). Volunteers act even though they have no legal or moral obligation to do so. Masini, 45 

Wn. App. at 288-89. 
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Here, Martin correctly claims that Han conceded the material facts necessary for him to 

prevail on his unjust enrichment claim. First, Han admitted she received the loan from the bank 

for her benefit. Second, Han received the loan because Martin co-signed on the loan and used his 

CDs as collateral; therefore, Han received the benefit of the loan at Martin’s expense. Third, Han 

retained the loan money even when she understood that she had sole responsibility for repaying 

the loan. Han admitted that she defaulted on the loan and understood that as a result Martin’s CDs 

were forfeited to pay the loan balance. In light of Han’s knowledge that she was responsible for 

repaying the loan, it is unjust for Han to retain the benefits without paying Martin back. 

Han argues that Martin cannot recover under unjust enrichment because Martin became a 

volunteer by signing the loan document. Han bases this argument on her deposition statements, 

where she said Martin wanted to help her. The summary of these statements is that Martin wanted 

to help Han rebuild her credit and as such offered his CDs as collateral. 

Relying on the language in Masini, there is no evidence that Martin was a volunteer. The 

evidence does not demonstrate that Han did not request Martin to post the CDs as collateral. 

Martin paid the defaulted balance on Han’s loan because he had the legal obligation to do so as a 

co-signer. While Martin may have offered to help Han, there is no evidence to support he is a 

volunteer. 

We conclude the trial court properly granted Martin’s order for summary judgment 

IV. JUDGMENT AMOUNT

Han argues that if we affirm the order for summary judgment, the judgment amount should 

be recalculated based on loan payments Han made prior to her default. Martin concedes that the 

judgment should be reduced in the amount of Han’s loan payments. We agree with Han and accept 

Martin’s concession. 
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We affirm the court’s order granting summary judgment but remand for it to recalculate 

the judgment amount. 

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

Melnick, J.

I concur:

Cruser, J.
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Maxa, J. (dissenting) – The evidence in this case certainly could be more clear. 

However, when the evidence is viewed in the light most favorable to Kimberly Han, there are 

genuine issues of fact regarding whether (1) Robert Martin intended that the use of his 

certificates of deposit (CDs) to pay off Han’s defaulted loan would be a gift to Han, and (2) 

allowing Han to obtain a benefit at Martin’s expense would be “unjust.” Therefore, the majority 

opinion wrongfully affirms the trial court’s grant of summary judgment in favor of Martin.

Han claims that Martin’s payment of the loan amount from his CDs was a gift in lieu of 

bequeathing the same amount to her when he died. In an interrogatory answer, Han stated that 

Martin told her that when she no longer paid on the loan, the money she received would be the 

only money she would get from him. In another interrogatory answer, Han stated that “[a]fter 

the CDs were taken by the bank,” Martin stated that Han now had already received everything he 

was going to give her. Clerk’s Papers at 79 (emphasis added). These statements along with 

Han’s somewhat confusing deposition testimony creates an inference that using the CDs to pay 

off the loan was a gift from Martin to Han.

Han also argues that Martin cannot prevail on his unjust enrichment theory because 

payment of the defaulted loan with the CDs was not unjust. An essential element of an unjust 

enrichment claim is even though the defendant may have received a benefit at the plaintiff’s 

expense, the circumstances must make it unjust for the defendant to retain the benefit without 

payment. Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 490, 254 P.3d 

835 (2011). “The mere fact that a defendant has received a benefit from the plaintiff is 

insufficient alone to justify recovery.” Id. In other words, enrichment alone is not enough; it 

must be unjust as between the parties under the circumstances. Id. 
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Here, Martin had the burden of presenting evidence that it was unjust for Han to receive 

the benefit, not just that she was “enriched.” But Martin presented no such evidence. Martin 

presented evidence that Han had an obligation to repay the loan and that he paid it instead 

through his CDs. But that evidence shows only enrichment, not unjust enrichment. The only 

other evidence that Martin presented gave rise to an inference that he did not expect to be paid 

back.

A jury should be allowed to decide whether Martin intended a gift and whether Martin’s 

payment of Han’s loan with his CDs was unjust. Accordingly, I dissent.

Maxa, P.J.