IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

KORTNEY SCHAAF, a single ) 

individual, ) No. 75335-5-1 

) 

Appellant, ) DIVISION ONE 

) 

v. ) 

) UNPUBLISHED OPINION 

RETRIEVER MEDICAL/DENTAL ) 

PAYMENTS INC., a New York ) 

corporation, ) 

) 

Respondent. ) FILED: July 3, 2017 

LEACH, J. — After a contract dispute about compensation, Retriever 

Medical/Dental Payments Inc. filed an action against Kortney Schaaf in New York 

state. Schaaf later filed an action against Retriever in Washington. Schaaf 

appeals the trial court's dismissal of her Washington action under the priority of 

action rule. Because adjudication of Retriever's claims would bar as res judicata 

Schaafs claims, the trial court properly dismissed her claims under the priority of 

action rule. We affirm. 

FACTS 

In March 2011, Retriever, a New York corporation, hired Schaaf, a 

resident of the state of Washington, to work as a sales representative. In 

connection with her position, Schaaf signed a number of representative 
No. 75335-5-1 /2 

agreements and confidentiality and noncompetition agreements. Some of those 

agreements contained a choice of forum clause that chose either New York or 

Texas as the designated forum. 

In September 2015, Schaaf violated a Retriever policy, and Retriever took 

disciplinary action against her. Retriever later terminated their contractual 

relationship. 

On October 13, 2015, Retriever started a lawsuit against Schaaf in the 

state of New York by filing a summons with notice. On December 18, Schaaf 

started a lawsuit against Retriever by filing a complaint in Snohomish County 

Superior Court. On December 23, Retriever filed a complaint in its New York 

action. 

Retriever's New York lawsuit asserts three causes of action. First, it 

claims "Schaaf was in breach of the terms of the Agreements resulting in 

damages to Retriever." Second, it seeks return of compensation that Retriever 

claims it mistakenly paid to Schaaf. Third, it asks for a declaratory judgment that 

Schaaf was an independent contractor and not an employee of Retriever. 

Schaaf's Washington lawsuit asserts six causes of action: (1) failure to 

comply with RCW 49.48.210 in withholding payments due, (2) retaliation, 

(3) wrongful termination in violation of Washington public policy, (4) violation of 

-2- 
No. 75335-5-1 / 3 

Washington's Consumer Protection Act (CPA),1 (5) equitable estoppel, and 

(6) declaratory judgment that she was an employee of Retriever and not an 

independent contractor. 

In March 2016, Retriever moved to dismiss Schaaf's Washington action 

under the priority of action rule and for lack of jurisdiction. The superior court 

rejected Retriever's jurisdiction argument but agreed with its priority of action 

argument. Thus, it dismissed Schaaf's action subject to the following condition: 

The Court will stay these proceedings pending the outcome of 

Plaintiffs (Schaaf's) Motion to Dismiss for forum non conveniens in 

New York. If the court in New York denies that motion, it is the 

ruling of this Court that the action in this cause should not proceed 

under the doctrine of Priority of Action. If the N.Y. Court grants the 

motion to dismiss for forum non conveniens, the action may 

proceed under this cause [number]. 

The New York court later denied Schaaf's motion to dismiss for forum non 

conveniens. 

Schaaf challenges the trial court's decision to dismiss her appeal under 

the priority of action rule. 

ANALYSIS 

Schaaf claims that the trial court should not have dismissed her claims 

under the priority of action doctrine. We disagree. 

1 Ch. 19.86 RCW. 

-3- 
No. 75335-5-1/ 4 

Under the priority of action doctrine, the court that "first gains jurisdiction of 

a cause retains the exclusive authority to deal with the action until the 

controversy is resolved."2Because the trial court's application of the priority of 

action doctrine presents a question of law, this court reviews the trial court's 

decision de novo.3 

Before a court applies the priority of action rule, it decides whether the 

actions possess identity of subject matter, relief, and parties.4In practice, courts 

do not apply these elements inflexibly.5"Rather, courts have looked beyond 

these elements and to the policy behind the doctrine."6Washington courts have 

stated that the rule's purpose is "to determine whether the 'identity' of the actions 

is 'such that a decision in one tribunal would bar proceedings in the other tribunal 

2Sherwin v. Arveson, 96 Wn.2d 77, 80, 633 P.2d 1335 (1981). 

3Atl. Cas. Ins. Co. v. Or. Mut. Ins. Co., 137 Wn. App. 296, 302, 153 P.3d 

211(2007) ("As the priority of action rule involves jurisdiction and res judicata 

principles, de novo review is appropriate."); State ex rel. Evergreen Freedom 

Found. v. Wash. Educ. Ass'n, 111 Wn. App. 586, 605, 49 P.3d 894 (2002) 

(applying de novo review to the trial court's decision not to allow a party to 

amend its complaint, which appellate courts normally review for abuse of 

discretion, because the trial court based its decision on the priority of action legal 

doctrine). 

4Am. Mobile Homes of Wash., Inc. v. Seattle-First Nat'l Bank, 115 Wn.2d 

307, 317, 796 P.2d 1276 (1990). 

5Bunch v. Nationwide Mut. Ins. Co., 180 Wn. App. 37, 41, 321 P.3d 266 

(2014). 

6Bunch, 180 Wn. App. at 41-42. 

-4- 
No. 75335-5-1/ 5 

because of res judicata."7The doctrine "tends to prevent unseemly, expensive, 

and dangerous conflicts of jurisdiction and of process."8 

First, Schaaf claims that because she filed her complaint in Washington 

before Retriever filed its complaint in New York, Washington first gained 

jurisdiction. But she does not dispute that Retriever filed a summons with notice 

in New York before she started her Washington action. In New York, a party can 

start a lawsuit by filing a summons with notice.8Thus, Retriever started its 

lawsuit in New York before Schaaf filed hers in Washington. This means that 

New York first gained jurisdiction. 

Next, Schaaf asserts that the priority of action rule does not bar her 

claims. Retriever contends that the priority of action rule bars Schaafs claims 

because they are compulsory counterclaims to Retriever's claims. Federal 

7 Bunch, 180 Wn. App. at 42 (quoting Evergreen Freedom Found., 111 

Wn. App. at 607); see also Sherwin, 96 Wn.2d at 80 (stating that the doctrine "is 

generally applicable only when the cases involved are identical as to subject 

matter, parties and relief. This identity must be such that a final adjudication of 

the case by the court in which it first became pending would, as res judicata, be a 

bar to further proceedings in a court of concurrent jurisdiction."). 

8Sherwin, 96 .Wn.2d at 80. 

9 N.Y. C.P.L.R. § 304(a) ("An action is commenced by filing a summons 

and complaint or summons with notice."); see also Martin v. Martin, 38 Misc. 2d 

836, 837, 238 N.Y.S.2d 749 (Sup. Ct. 1963) ("The summons 'is always of prime 

importance,' being 'the effective paper upon which jurisdiction is founded." 

(quoting Mishkind-Feinberg Realty v. Sidorsky, 189 N.Y. 402, 407, 82 N.E. 448 

(1907))). 

-5- 
No. 75335-5-1/ 6 

courts have used this logic in applying a similar priority rule.1° And, while no 

Washington court has yet applied the compulsory counterclaim rule in a priority 

of action analysis, we agree with this approach because it furthers the purpose of 

the doctrine.11 

Unlike Washington, New York does not have a codified compulsory 

counterclaims rule. But the principle does exist in New York common law.12In 

New York, "once a claim is brought to a final conclusion, all other claims arising 

out of the same transaction or series of transactions are barred, even if based 

upon different theories or if seeking a different remedy."13 

Here, all of Retriever's and Schaaf's claims arise out of the same 

transaction or series of transactions because they all relate to their contractual 

relationship. Retriever's claims allege breach of contract, relate to payment of 

compensation under the contract, and ask the court to clarify the parties' 

relationship under the contract. Schaaf's claims likewise relate to the contract. 

10Computer Assocs. Intl, Inc. v. Altai Inc., 893 F.2d 26, 28-29 (2d Cir. 

1990). 

11 See Evergreen Freedom Found., 111 Wn. App. at 607. 

12Henry Modell & Co. v. Minister, Elders & Deacons of Reformed 

Protestant Dutch Church of City of N.Y., 68 N.Y.2d 456, 461, 502 N.E.2d 978, 

510 N.Y.S.2d 63 (1986) ("While New York does not have a compulsory 

counterclaim rule, a party is not free to remain silent in an action in which he is 

the defendant and then bring a second action seeking relief inconsistent with the 

judgment in the first action by asserting what is simply a new legal theory." 

(citation omitted)). 

13O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 429 N.E.2d 1158, 445 

N.Y.S.2d 687 (1981). 

-6- 
No. 75335-5-1 /7 

Her wrongful termination and retaliation claims involve termination of their 

contractual relationship. Her equitable estoppel and RCW 49.48.210 claims 

relate to payment of compensation under the contract.14Her declaratory 

judgment claim relates to her status under the contract. Finally, her CPA claim 

alleges that Retriever wrongfully required Schaaf to sign a contract that required 

her to identify herself as an independent contractor. Because the claims of both 

parties arise out of the same transaction, under New York law, Schaaf's claims 

are effectively compulsory counterclaims in the New York lawsuit.15Thus, a 

decision by the New York court would bar Schaafs Washington claims.16 

Schaaf asserts that the convenience of witnesses makes Washington a 

better location for litigating this dispute. Courts have considered such factors 

relevant to equitable application of the doctrine but only where the res judicata 

effect of the first action on the second is uncertain because the identity of parties 

is not exact.17Here, Schaaf and Retriever agree that the identity of the parties is 

14RCW 49.48.210 provides notification requirements when an employer 

decides to withhold wages due to overpayment. 

15See O'Brien, 54 N.Y.2d at 357. 

16Cf. Chew v. Lord, 143 Wn. App. 807, 181 P.3d 25 (2008) (holding that 

summary dismissal of claims brought in Washington was proper because they 

arose from the same transaction or occurrence as claims that had been 

previously litigated in Nevada and were thus compulsory counterclaims in that 

action). 

17Am. Mobile Homes, 115 Wn.2d at 321-22 (considering the existence of 

any forum agreement between the parties, the convenience of witnesses, and 

the general interests of justice because there was not identity of parties); Atl. 

Cas. Ins. Co., 137 Wn. App. at 302. 

-7- 
No. 75335-5-1/8 

the same in both actions. Thus, because the res judicata effect of the New York 

case warrants dismissal, we need not look to this factor to determine whether the 

rule should apply here.18 

Schaaf also asserts that the parties should litigate her claims in 

Washington because this state has a greater interest in the matter. She cites no 

authority to support this argument, however. None of the cases she cites discuss 

states' interests. She does not show that state interest is a relevant factor in 

considering whether to apply the priority of action rule. Similarly, she asserts that 

the interests of justice require litigation of at least her CPA claim in Washington 

because public interest impact is an element of a CPA claim." She argues that 

because the CPA claim alleges that Retriever might harm other Washington 

residents in a similar fashion, agreement that New York law governs their 

relationship cannot preclude her Washington CPA claim. Again, she cites no 

authority for this argument. This court need not consider issues that a party does 

not support with citation to legal authority.20We decline to consider these 

arguments. 

18Cf. Am. Mobile Homes, 115 Wn.2d at 321 (considering other factors in 

addition to the identities because the res judicata effect was questionable due to 

the fact that the parties to the actions were not identical). 

19Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 

Wn.2d 778, 784, 719 P.2d 531 (1986). 

20 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 

P.2d 549 (1992). 

-8- 
No. 75335-5-1/ 9 

Finally, Schaaf asserts that the priority of action rule should not apply here 

because Retriever filed its lawsuit in New York as a "preemptive strike." To 

support this argument, she cites American Mobile Homes of Washington, Inc. v. 

Seattle-First National Bank.21 But we distinguish that case. In American Mobile 

Homes, the court did consider it likely that the first action was filed as a so-called 

preemptive strike to avoid the venue named in the parties' agreement.22But in 

this case, the most current agreements either contain no choice of forum clause 

or identify New York as the chosen forum. Thus, it is unlikely that Retriever filed 

in New York as a preemptive strike to avoid a choice of forum clause. Schaaf 

provides no evidence to show that Retriever had any improper motive for filing its 

New York action that might justify modifying our priority of action analysis. 

CONCLUSION 

Because Schaaf's claims arise out of the same transaction as Retriever's 

claims, resolution of Retriever's case would have a preclusive effect on Schaafs 

21 115 Wn.2d 307, 796 P.2d 1276 (1990). 

22Am. Mobile Homes, 115 Wn.2d at 320-21. 

-9- 
No. 75335-5-1/ 10 

claims. Thus, the trial court properly dismissed them under the priority of action 

rule. We affirm. 

WE CONCUR: 

-10-