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Noll v. Special Electric Company, Inc.

Court of Appeals of Washington, Division 1

July 1, 2019

CANDACE NOLL, Individually and as Personal Representative of the Estate of Donald Noll, Deceased, Appellant,
v.
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.,

          HAZELRIGG-HERNANDEZ, J.

         When a 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.

         FACTS

         Donald 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.

         Special 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).

         On 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.

         DISCUSSION

         I. Conclusions following a preliminary hearing are reviewed de novo, while underlying factual findings are reviewed for substantial evidence.

         CR 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).

         The 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.

         Noll 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 circumstances.

         II. Despite involuntarily dismissing Noll's complaint after the presentation of evidence, the trial court articulated no findings of fact.

         After 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.

         At 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 ...


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