CANDACE NOLL, Individually and as Personal Representative of the Estate of Donald Noll, Deceased, Appellant,
SPECIAL ELECTRIC COMPANY, INC., Respondent, and AMERICAN BILTRITE, INC.; AMETEK INC.;BIRD INCORPORATED; BORGWARNER MORSE TEC INC. as successor-by-merger to BORG-WARNER CORPORATION; CBS CORPORATION, a Delaware Corporation, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, a Pennsylvania Corporation, f/k/a WESTINGHOUSE ELECTRIC CORPORATION; CERTAIN TEED CORPORATION; CONWED CORPORATION; DOMCO PRODUCTS TEXAS INC; FORD MOTOR COMPANY; GENERAL ELECTRIC COMPANY; GEORGIA-PACIFIC LLC; HERCULES INCORPORATED; HONEWELL INTERNATIONAL INC.; INDUSTRIAL HOLDINGS CORPORATION f/k/a THE CARBORUNDUM COMPANY; INGERSOLL-RAND COMPANY;J-M MANUFACTURING COMPANY INC.; KAISER GYPSUM COMPANY INC.; KELLY MOORE PAINT COMPANY INC.,
trial court ruling fails to disclose the court's
understanding of the law and the facts, a reviewing court may
remand the case for additional findings of fact. Candace Noll
sought to establish specific jurisdiction over Special
Electric Company, Inc. (corporately known as Special
Electric), based on her deceased husband's exposure to
asbestos sold by the company. Because we cannot discern the
reasoning or underlying facts supporting the decision to deny
personal jurisdiction against Special Electric, we remand
this case for findings of fact.
Noll was diagnosed with mesothelioma on January 11, 2013. In
the late 1970's, Noll worked with asbestos-cement pipe
manufactured by the CertainTeed Corporation. Special Electric
provided large quantities of asbestos to CertainTeed's
Santa Clara plant in the 1970's, including a five year
requirements contract for crocidolite asbestos. CertainTeed
sold significant quantities of asbestos-cement pipe to
businesses in Washington during the late 1970's. Noll
worked with these pipes on construction sites in Washington.
He sued a number of companies that exposed him to asbestos,
including Special Electric. Noll passed away on September 28,
2013 and his wife, Candace Noll, carried on with the suit as
his personal representative and surviving spouse.
Electric moved to dismiss for lack of personal jurisdiction.
After reconsideration, the trial court dismissed the suit
without prejudice. Noll appealed, and the case was remanded
by the Supreme Court for reconsideration in light of the
court's decision in State v. LG Electronics.
Inc., 186Wn.2d 169, 375 P.3d 1035 (2016) cert,
denied ___U.S.___, 137 S.Ct. 648, 196 L.Ed.2d 522
(2017). Noll v. Am. Biltrite Inc., 188 Wn.2d 402,
416, 395 P.3d 1021 (2017).
remand, Noll presented a new motion to establish specific
jurisdiction with additional evidence. Without disclosing its
reasoning or findings of fact, the trial court held that
Noll's evidence was insufficient to establish purposeful
availment for specific jurisdiction. Noll appealed.
Conclusions following a preliminary hearing are reviewed de
novo, while underlying factual findings are reviewed for
12(d) permits courts to conduct preliminary hearings to
resolve certain defenses before trial. Here, Special Electric
requested the trial court to conduct such a preliminary
hearing to resolve whether the court had personal
jurisdiction over Special Electric. While Noll ostensibly
filed a motion to establish jurisdiction under CR 7(b), the
parties agreed that the substance of the proceeding was to
determine whether Noll had met the burden of proof to
establish jurisdiction. In other words, it was a preliminary
hearing under CR 12(d). We consider procedures based on their
substance, rather than the way parties characterize them.
See State v. Adams, 107 Wn.2d 611, 620, 732 P.2d 149
(1987) (pleadings considered on their facts, not their name);
Colorado Nat. Bank of Denver v. Merlino, 35 Wn.App.
610, 614, 668 P.2d 1304 (1983) (motions measured by their
content, not technical form or language).
parties disagree over which standard of review applies to CR
12(d) hearings. Our case law does not provide clear guidance.
When interpreting our court rules, we may look to the federal
courts' interpretation of parallel rules for guidance.
Outsource Ser. Mgmt. LLC v. Nooksack Bus. Corp., 172
Wn.App. 799, 806, 292 P.3d 147 (2013) (citing Bryant v.
Joseph Tree., Inc., 119 Wn.2d 210, 218-19, 829 P.2d 1099
(1992)). After a preliminary hearing under the parallel
federal rule, FRCP 12(i), the circuit courts review the
conclusion de novo and the findings of fact for clear error.
See, e.g.. Bruce v. U.S., 759 F.2d 755, 758
(9th Cir. 1985). Clear error review mirrors
Washington's substantial evidence review. See State
v. Ramirez, 191 Wn.2d 732, 740, n.4, 426 P.3d 714
(2018), see also State v. Jeannotte, 133 Wn.2d 847,
856, 947 P.2d 1192 (1997). These are the usual standards of
review in Washington for conclusions of law and findings of
fact. In re Disciplinary Proceeding Against Pfefer,
182 Wn.2d 716, 724, 344 P.3d 1200 (2015). We therefore hold
it appropriate to apply them in this case.
argues that we should apply de novo review to the case in its
entirety, because all of the evidence is documentary, and
Special Electric submitted no evidence on its own behalf. We
note that both parties continue to debate the meaning of the
various items of evidence in this court. A long line of cases
permit Washington courts to review documentary evidence de
novo. See, e.g. In re Marriage of Langham and Kolde,
153 Wn.2d 553, 559, 106 P.3d 212 (2005). But in Dolan v.
King County, our Supreme Court deferred to the trial
court's findings because of the complexity and volume of
evidence. 172 Wn.2d 299, 310-311, 258 P.3d 20 (2011). While
the evidence here is not so voluminous, it involves a number
of complex questions, including the meanings of corporate
documents, abbreviations, figures, and percentages. Rather
than act as initial fact-finders, we hold it appropriate to
defer to ` the trial court as to the facts in these
Despite involuntarily dismissing Noll's complaint after
the presentation of evidence, the trial court articulated no
findings of fact.
examining the evidence, the trial court failed to articulate
its findings of fact or reasoning in its ruling. CR 52(a)(1)
requires courts to find facts specially, and state
conclusions of law separately. CR 52(a)(5)(B) permits courts
to decide motions under CR 12 without providing findings of
fact. While most motions under CR 12 are resolved on summary
judgment, a hearing under CR 12(d) is not a motion, and
requires written findings and conclusions.
summary judgment, findings of fact are unnecessary because
the nonmoving party's allegations are considered proven
and all reasonable inferences are drawn in that party's
favor. Failla v. FixtureOne Corp.,181 Wn.2d 642,
649, 336 P.3d 1112 (2014) (quoting Lewis v. Bours,119 Wn.2d 667, 669, 835 P.2d 221 (1992)). However, the
purpose of a preliminary hearing under CR 12(d) is to resolve
factual disputes prior to trial. At a preliminary hearing,
the plaintiff must prove the relevant part of his or her case
by a preponderance of the evidence. Data Disc, Inc. v.
Sys. Tech. Assoc. Inc.,557 F.2d 1280, 1285
(9th Cir. 1977). A preliminary hearing is
therefore an action tried upon the facts, requiring specific
findings of fact under CR ...