Borton & Sons, Inc. v. Burbank Properties, LLC ( 2019 )


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  •                                                                              FILED
    JULY 16, 2019
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    BORTON & SONS, INC., a Washington              )
    State corporation,                             )         No. 36189-6-III
    )
    Appellant,                )
    )
    v.                                      )
    )         PUBLISHED OPINION
    BURBANK PROPERTIES, LLC, a                     )
    Washington State limited liability             )
    company,                                       )
    )
    Respondent.               )
    KORSMO, J. — Equity will permit an option to purchase property to be exercised
    late in order to avoid a forfeiture when significant improvements have been made to the
    property. The trial court ruled that respondent Burbank Properties satisfied this condition
    and allowed the option to be exercised a mere eight days late. We disagree and reverse.
    FACTS
    Burbank farmed approximately 164 acres it owned in Walla Walla County
    adjacent to orchards owned by appellant Borton & Sons. Burbank, whose sole owner is
    Eric Rogers, purchased the property in 2012 after having leased the land for farming
    since 2000. Burbank used the land to grow early season potatoes. Potatoes deplete the
    soil of nutrients and are subject to diseases that require strict crop rotation. Potatoes are
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    grown one year and then the land is given over to other crops for at least one to two
    years. Historically, Burbank had followed one year of potato planting with two years of
    grass or hay planting.
    After years of depressed potato prices, Burbank faced financial difficulties that
    threatened its operation. A settlement with one of its lenders required Burbank to sell the
    potato farm land. However, Burbank’s early season potato contracts were a significant
    component of its operations. Accordingly, it settled on a plan to sell the land at a reduced
    rate, farm the land on lease terms during the interim, and repurchase the property at a
    reasonable sum. In essence, the land was being used to secure a short-term loan.
    An appraisal valued the land at $1,875,000 and Burbank offered the land for sale
    for $300,000 less. The following day, desiring to purchase the land that bordered its
    apple orchards, Borton offered $1,550,000 for the land. The parties rapidly reached an
    agreement that included the following terms relevant to this appeal: Burbank could
    repurchase the land for $1,800,000 by December 31, 2018; Burbank had to exercise its
    repurchase option prior to December 31, 2017, by sending notice to Borton by certified or
    registered mail; Burbank would lease and farm the land during 2016, 2017, and 2018 at
    an annual rent of $78,775. Borton required the one year notice because it needed to order
    trees for its orchard one year in advance of its need for the trees.
    In 2017, Burbank harvested a potato crop and thereafter planted Timothy hay that
    it expected to harvest in 2018 and 2019. At least twice during 2017, Burbank advised
    2
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    Borton representatives that it intended to exercise the repurchase option. On December
    28, 2017, Eric Rogers prepared a written notice to Borton that Burbank would exercise its
    offer to repurchase the land. However, he did not mail the notice until January 4, 2018,
    and sent it by regular mail instead of by registered mail. Borton received the notice
    January 8, 2018. Believing the notice ineffectual, Borton wrote Burbank and demanded
    that it sign a notice that the option was terminated. Burbank responded that it had
    exercised the option and was planning to close on the property by December 31, 2018.
    Borton initiated a declaratory judgment action to determine the status of the
    purchase option. Burbank answered and counterclaimed for its own declaratory
    judgment, arguing both that it properly exercised its option and that it was entitled to an
    equitable grace period to do so. Discovery was rapidly conducted and both parties soon
    sought summary judgment. The competing motions then were argued to the trial court.
    Burbank contended that it would lose the value of the Timothy hay and the equity it
    would obtain by repurchasing the property. Borton argued that Burbank had failed to
    timely or properly give notice, was unable to perform the purchase, and had not made any
    improvements justifying equitable relief.
    The trial court concluded that an equitable grace period was called for due to the
    potential loss of hay and equity. Report of Proceedings at 16. An order was entered
    granting summary judgment for Burbank and authorizing it to close on the property by
    December 31, 2018. Burbank was also awarded its attorney fees based on the lease
    3
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    agreement. Borton’s motion for summary judgment was denied, as was its subsequent
    motion for reconsideration.
    Borton then timely appealed to this court. A panel heard oral argument of this
    case at Whitman College in Walla Walla.
    ANALYSIS
    The dispositive issue is whether the trial court erred in its respective summary
    judgment rulings by awarding equitable relief. We address that issue before briefly
    turning to the question of attorney fees.
    Equitable Relief
    The traditional interplay of law and equity provides a complicated puzzle on these
    facts. Principles of summary judgment and contract law inform our approach to this
    appeal.1
    1
    Although this case comes to us from summary judgment, this author has grave
    reservations about whether an equitable remedy can be granted in that setting. But see
    Cornish Coll. of the Arts v. 1000 Va. Ltd. P’ship, 
    158 Wn. App. 203
    , 
    242 P.3d 1
     (2010).
    Judges do not weigh evidence or decide facts at summary judgment, but a weighing of
    equities and an assessment of the existence of damages both factor significantly in
    determining whether an inequitable forfeiture might have occurred. Findings of fact and
    conclusions of law are required in equity cases just as they are required in nonjury cases at
    law. CR 52(a)(1). With the exception of Cornish, the other cases applying this remedy in
    Washington did so after a trial. We appreciate that time was of the essence to both parties
    here and that declaratory judgment actions typically are heard in a brief bench trial, but it
    is difficult to justify the necessary fact-finding at summary judgment. However, neither
    party challenged the court’s ability to apply the equitable remedy at summary judgment or
    on appeal.
    4
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    This court reviews declaratory judgment actions the same as it does any other civil
    case. To-Ro Trade Shows v. Collins, 
    144 Wn.2d 403
    , 410, 
    27 P.3d 1149
     (2001).
    Summary judgment rulings are reviewed de novo since an appellate court sits in the same
    position as the trial court. Hubbard v. Spokane County, 
    146 Wn.2d 699
    , 706-07, 
    50 P.3d 602
     (2002). Summary judgment is proper when, after viewing the evidence in a light
    most favorable to the opposing party, there are no issues of material fact and the moving
    party is entitled to judgment as a matter of law. Trimble v. Wash. State Univ., 
    140 Wn.2d 88
    , 93, 
    993 P.2d 259
     (2000). All facts and reasonable inferences are construed in the
    light most favorable to the nonmoving party. 
    Id.
     Summary judgment should be granted
    if reasonable persons could reach but one conclusion based on all of the evidence. 
    Id.
    An option contract is “a complete, valid and binding agreement” to which general
    contract principles apply. Bennett Veneer Factors, Inc. v. Brewer, 
    73 Wn.2d 849
    , 853,
    
    441 P.2d 128
     (1968). “In applying these general contract principles, our primary goal in
    interpreting the option contract is to ascertain the parties’ mutual intent.” Chevalier v.
    Woempner, 
    172 Wn. App. 467
    , 476, 
    290 P.3d 1031
     (2012). Under the “objective
    manifestation” theory of contracts, we determine the parties’ intent by focusing on the
    objective manifestations expressed in their contract rather than focusing on unexpressed
    subjective intentions. Hearst Commc’n, Inc. v. Seattle Times Co., 
    154 Wn.2d 493
    , 503,
    
    115 P.3d 262
     (2005). Thus, courts will “impute an intention corresponding to the
    reasonable meaning of the words used” in the contract. 
    Id.
     The parties’ subjective intent
    5
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    “is generally irrelevant if the intent can be determined from the actual words used” in the
    contract. Id. at 504. Courts will interpret what was “written instead of what was
    intended to be written.” Id. “Accordingly, we give language in the option contract its
    ordinary, usual, and popular meaning unless the contract clearly demonstrates a contrary
    intent.” Woempner, 172 Wn. App. at 476. Ambiguities in a contract typically2 are
    construed against the drafter. Rouse v. Glascam Builders, Inc., 
    101 Wn.2d 127
    , 135, 
    677 P.2d 125
     (1984).
    The option holder may exercise an option by complying with the terms of
    acceptance set forth in the option agreement. Whitworth v. Enitai Lumber Co., 
    36 Wn.2d 767
    , 770, 
    220 P.2d 328
     (1950). If the option is exercised unconditionally in accordance
    with the terms of the contract, the seller must sell the property in accordance with the
    terms of the option. 
    Id.
     If the option is not exercised within the time or manner
    specified, all rights under the contract, along with any consideration given, are forfeited.
    
    Id. at 770-71
    . A court may order specific performance of the contract if the option is
    properly exercised and the seller refuses to convey the property. 3 ERIC MILLS HOLMES,
    CORBIN ON CONTRACTS § 11.13, at 570 (rev. ed. 1996). The terms of an option contract
    2
    However, an ambiguous contract will not be construed against the drafter when
    the intent of the parties is clearly expressed in the record. See Forest Mktg. Enters. v.
    Dep’t of Nat. Res., 
    125 Wn. App. 126
    , 132-33, 
    104 P.3d 40
     (2005).
    6
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    are to be strictly construed and, generally, time is of the essence. Pardee v. Jolly, 
    163 Wn.2d 558
    , 572, 
    182 P.3d 967
     (2008).
    On the basis of this hornbook law, Borton correctly claims that it should have
    prevailed at summary judgment because Burbank did not exercise the option at the proper
    time and in the proper manner. However, Washington recognizes that in some instances
    equity will excuse the untimely exercise of an option to purchase real estate. An
    equitable remedy is an extraordinary, not ordinary, form of relief. Sorenson v. Pyeatt,
    
    158 Wn.2d 523
    , 531, 
    146 P.3d 1172
     (2006). A court will grant equitable relief only
    when there is a showing that a party is entitled to a remedy and the remedy at law is
    inadequate. Orwick v. City of Seattle, 
    103 Wn.2d 249
    , 252, 
    692 P.2d 793
     (1984).
    Whether a party is entitled to equitable relief “is in large part a matter addressed to the
    discretion of the trial court, with discretion to be exercised in light of the facts and
    circumstances of the particular case.” Heckman Motors, Inc. v. Gunn, 
    73 Wn. App. 84
    ,
    88, 
    867 P.2d 683
     (1994).
    Burbank argues that it is entitled to equitable relief in order to avoid an inequitable
    forfeiture. Washington recognizes that equitable relief may be warranted in limited
    circumstances where an inequitable forfeiture would otherwise result. Wharf Rest., Inc.
    v. Port of Seattle, 
    24 Wn. App. 601
    , 611, 
    605 P.2d 334
     (1979). This is because
    forfeitures “are not favored in law and are never enforced in equity unless the right
    thereto is so clear as to permit no denial.” Pardee, 
    163 Wn.2d at 574
    . When the holder
    7
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    of an option makes valuable permanent improvements to the property with the intention
    to give its notice to exercise or extend the option, but then fails to timely give such
    notice, an equitable period of grace may be appropriate. Wharf, 
    24 Wn. App. at 611
    (emphasis added) (citing 1 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 35, at 146-47
    (1963)). Wharf astutely noted:
    The courts which have considered this problem have not found the
    solution simple. On the one hand is equity’s abhorrence of a forfeiture. On
    the other hand is the general reluctance of courts to relieve a party from its
    own negligent failure to timely exercise an option, when to do so might
    tend to introduce instability into business transactions and disregard
    commercial realities.
    Id. at 610.
    A forfeiture is:
    1. The divestiture of property without compensation. 2. The loss of a right,
    privilege, or property because of a crime, breach of obligation, or neglect of
    duty. . . . 3. A destruction or deprivation of some estate or right because of
    the failure to perform some contractual obligation or condition.
    BLACK’S LAW DICTIONARY 765 (10th ed. 2014).
    Burbank argues that it did not have to make a permanent improvement to the land
    in order to seek relief in equity and that it would constitute an inequitable forfeiture to
    forego the value it would have gained by selling the property at market value in 2016 and
    the value of the hay it had planted but could not harvest in 2019. We disagree with his
    first two arguments and conclude the other was unproved.
    8
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    Planting an annual crop as one has been doing for years does not constitute a
    permanent improvement in the land. Burbank has provided no authority to the contrary
    and tacitly seems to agree by, instead, arguing it had no need to establish permanent
    improvement. We disagree. All four of the Washington cases on this topic begin with,
    and continue to rely on, Wharf. And Wharf was very clear in its reliance on Professor
    Corbin’s hornbook that the only cases in which equity might relieve a party from its
    negligent mistake was when “he had made valuable permanent improvements with
    intention to give the notice.” 
    24 Wn. App. at 611
     (quoting Corbin).
    The leaseholder in Wharf had an agreement with Port of Seattle and had exercised
    options to renew its prior lease agreements. Id. at 603. In 1977, after 25 years as
    leaseholder, Wharf inadvertently failed to exercise its option and had to sue to regain its
    lease after Port of Seattle found a new lessee. Id. at 604. After a trial, the court awarded
    an equitable grace period and ordered specific performance of the option to renew. Id. at
    604-05. The court found that Wharf had made permanent improvements to the property
    “with the intention of exercising its option and remaining on the premises.” Id. at 612.
    On appeal, Division One of this Court held that equitable relief period was proper under
    the special circumstances. Id. at 609. It summarized those circumstances: (1) failure to
    give notice was inadvertent, (2) an inequitable forfeiture would result, (3) the lessor had
    not changed its position in reliance on the failure to timely exercise the option, (4) the
    lease was long-term, having existed 25 years, and (5) there was no undue delay. Id. at
    9
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    612-13. There was evidence that the restaurant was making improvements at the very
    time the option was supposed to be exercised. Id. at 612.
    The cases following Wharf similarly have involved significant levels of permanent
    improvements. In Heckman, the parties had jointly cleared land and built a building to
    house an automobile dealership. 
    73 Wn. App. at 85
    .3 Like Wharf, the Heckman court
    relied on the same passage from Corbin indicating that equity stepped in only when a
    substantial permanent improvement might be forfeited. Id. at 87.
    Substantial permanent improvements also were at issue in Pardee. There, the trial
    court found that the plaintiff who had failed to timely exercise its option had put in 2,500
    hours of work and spent $20,669.58 for repairs in order to build up equity as collateral for
    purchasing the property. 
    163 Wn.2d at 576
    . The court considered these figures “a
    significant forfeiture.” 
    Id.
     Since the trial court erroneously had granted relief on a
    different basis, the Supreme Court reversed and remanded for the trial court to consider
    whether plaintiff was entitled to an equitable grace period in which to exercise the option.
    
    Id. at 576-77
    .
    The final case is Cornish. Cornish College entered into an agreement to sublease
    a portion of a six-story building with 1000 Virginia Ltd. that included an option to
    3
    The lessee failed to timely exercise its option at the end of the five year period
    and the trial court declined to grant an equitable extension as both parties had significantly
    contributed to the development. 
    73 Wn. App. at 86, 88
    .
    10
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    purchase the building and the land. 158 Wn. App. at 212. Cornish renovated a portion of
    the property. Id. at 213. The superior court determined that Cornish would forfeit
    approximately $600,000 if the option were not exercised. Id. at 219. The court then
    awarded an equitable grace period and granted specific performance. Id. at 214. On
    appeal, Division One of this court upheld the equitable relief. Id. at 219.
    In all four of these instances, the option holder had expended significant funds
    making permanent improvements to the land it hoped to purchase. Here, Burbank simply
    continued its normal farming operation in expectation that it would continue to work the
    land. This is not the significant investment in the property that Professor Corbin viewed
    as the foundation for seeking equitable relief.
    Even if Burbank is correct that significant permanent improvements were not
    necessary in order to obtain equitable relief, it still failed to show than an inequitable
    forfeiture occurred because it did not demonstrate that it would lose any significant value.
    It cites first to the fact that the land was sold for $300,000 below its market value and that
    it could have realized that sum if it had sold the land for fair market value in 2016. Even
    assuming that it could have realized full value from a forced sale in 2016, Burbank has
    not argued, and has not demonstrated, that it could have sold the land for any greater sum
    and still obtained an option to repurchase. The discounted sale price was the cost of the
    option in order to find someone willing to invest in the property for the short term.
    11
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Prop., LLC
    The cost of an option is not a component of an inequitable forfeiture. On point
    here is Pardee. There the option holder paid $16,000 to obtain the purchase option. In
    its assessment of the forfeiture possibility, the court excluded the option cost, noting that
    it was “an acceptable result for the termination of an option.” 
    163 Wn.2d at 576
    . While
    the potential $300,000 discount here is a significant figure, it was the cost of enticing a
    fellow farmer to become an investor. Both parties wanted the land, and both were willing
    to enter into this deal in the hopes that they would ultimately own it. The discounted sale
    price was not a forfeiture.
    The remaining possibility is the value of the second year of the hay crop. No
    evidence was produced suggesting the potential value of this crop in 2019 despite the fact
    that Burbank had planted hay on the property in earlier years and should have had records
    from which to suggest a value. Whether there was any profit to be had from the hay is
    simply unknown.
    Burbank did not establish that it suffered an inequitable forfeiture. There was no
    relevant evidence before the trial court to suggest otherwise. Accordingly, the court had
    no basis for finding that an inequitable forfeiture would occur that required the late
    exercise of the purchase option.
    12
    No. 36189-6-111
    Borton & Sons, Inc. v. Burbank Prop., LLC
    Attorney Fees
    The trial court awarded Burbank its attorney fees in the trial court under the terms
    of the lease agreement. Burbank seeks to defend that award here and both parties seek
    attorney fees on appeal.
    Because we reverse the trial court, we also reverse the superior court fee award.
    Attorney fees are available on appeal when there is a contractual or statutory basis for
    doing so. RAP 18.l(a). As prevailing party, we award Borton its attorney fees under the
    lease agreement subject to timely compliance with RAP 18.l(d).
    Reversed.
    I CONCUR:
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    Lawrence, Berrey, C.J.
    13
    NO. 36189-6-III
    LAWRENCE-BERREY, C.J. (concurring in part) — A trial court may grant equitable
    relief on summary judgment. But here, the facts do not warrant equitable relief. For
    these reasons, I write separately.
    The parties invited the trial court to grant or deny equitable relief on summary
    judgment. The parties knew the facts, put those facts in front of the trial court, and, as
    their right, chose to forego the expense and delay of a trial. “Waiver is the intentional
    and voluntary relinquishment of a known right; it may be either express or implied.” Doe
    v. Gonzaga Univ., 
    143 Wn.2d 687
    , 711, 
    24 P.3d 390
     (2001), rev’d on other grounds by
    
    536 U.S. 273
    , 
    122 S. Ct. 2268
    , 
    153 L. Ed. 2d 309
     (2002). “To constitute implied waiver,
    there must be unequivocal acts or conduct evidencing an intent to waive; intent will not
    be inferred from doubtful or ambiguous factors.” 
    Id.
     Both parties impliedly waived their
    right to a trial by requesting the trial court to decide the appropriateness of an equitable
    remedy on summary judgment. At a minimum, both parties invited the error, and it
    would be improper for us to review it. See In re Det. of Rushton, 
    190 Wn. App. 358
    , 372,
    
    359 P.3d 935
     (2015) (An appellate court will not review a trial court error if the party
    requesting review helped create the error.).
    No. 36189-6-III
    Borton & Sons v. Burbank Props. (concurring in part)
    At the outset, it is important to clarify the appropriate standard of review. Our
    jurisprudence is inconsistent on the appropriate standard when reviewing a trial court’s
    discretionary decision on summary judgment. Relying on Folsom v. Burger King, 
    135 Wn.2d 658
    , 663, 
    958 P.2d 301
     (1998), we have held that a de novo standard of review
    applies when reviewing a trial court’s discretionary decision to grant or deny equitable
    relief on summary judgment. See Cornish Coll. of the Arts v. 1000 Virginia Ltd. P’ship,
    
    158 Wn. App. 203
    , 215-16, 
    242 P.3d 1
     (2010). More recently, our Supreme Court
    unanimously held that abuse of discretion is the appropriate standard when reviewing a
    trial court’s discretionary decision on summary judgment. Keck v. Collins, 
    184 Wn.2d 358
    , 368, 
    357 P.3d 1080
     (2015); id. at 375 (González, J., concurring) (trial court abused
    its discretion when striking an untimely affidavit opposing summary judgment). Because
    the granting of equitable remedies is the province of trial courts, not appellate courts,
    abuse of discretion is the appropriate standard of review here.
    Having addressed the procedural issues, I now address why my vote is against
    Burbank Properties, LLC (Burbank) and for Borton & Sons, Inc. (Borton).
    An equitable extension of time to purchase land may be warranted where an
    inequitable forfeiture would otherwise result. Wharf Rest., Inc. v. Port of Seattle, 
    24 Wn. App. 601
    , 612-13, 
    605 P.2d 334
     (1979); Cornish Coll., 158 Wn. App. at 218. Here,
    Burbank has failed to establish that equitable relief is warranted because it has failed to
    establish that the forfeiture would be inequitable.
    2
    No. 36189-6-III
    Borton & Sons v. Burbank Props. (concurring in part)
    Burbank’s lender sued Burbank and its owner for defaulting on a loan agreement.
    The lender agreed to settle in exchange for Burbank selling the farm to generate short-
    term cash. But Burbank wanted to keep the farm. It found a way to do both.
    Burbank agreed to sell the farm to Borton, and Borton agreed to lease the farm
    back to Burbank for three years and to grant Burbank an option to repurchase it. A lease
    with an option to purchase is an encumbrance against property that reduces its value to a
    purchaser. To induce Borton into the encumbrance, Burbank had to give Borton a deal.
    Burbank sold its farm to Borton for approximately 15 percent less than fair market value.
    Burbank agreed to the deal, which was necessary to resolve its lender’s lawsuit against it
    and its owner. There was nothing inequitable about Burbank receiving 15 percent less
    than fair market value for the encumbered farm.
    “The goal of equity is to do substantial justice. Equity exists to protect the
    interests of deserving parties from the ‘harshness of strict legal rules.’” Columbia Cmty.
    Bank v. Newman Park, 
    177 Wn.2d 566
    , 569, 
    304 P.3d 472
     (2013) (internal quotation
    marks omitted) (quoting Rodriguez v. Dep’t of Labor & Indus., 
    85 Wn.2d 949
    , 953, 
    540 P.2d 1359
     (1975)). But what seems substantially just to one party often seems
    substantially unjust to the other. It is, therefore, reasonable to require the party seeking
    equity to first establish that an inequity has occurred or will occur. In these types of
    cases, a party requesting an equitable grace period will seek to establish that forfeiture
    will result in an unjust loss to it and an unjust benefit to the opposing party.
    3
    No. 36189-6-III
    Borton & Sons v. Burbank Props. (concurring in part)
    Burbank argued to the trial court that it would suffer an unjust loss and Borton
    would receive an unjust benefit if Borton was permitted to retain the farm it purchased at
    a discount. But as explained above, there was nothing unjust about Borton acquiring the
    encumbered farm at a discount. Burbank has failed to show that the forfeiture would be
    inequitable. The trial court, therefore, abused its discretion by granting Burbank an
    equitable remedy.
    _________________________________
    Lawrence-Berrey, C.J.
    4
    No. 36189-6-III
    FEARING, J. (dissenting) — For a civil practitioner, this appeal presents absorbing
    questions entailing the overlay of summary judgment jurisprudence, appellate review,
    and equity. Burbank Properties, LLC (Burbank Properties) seeks a grace period by
    which to exercise an option to purchase farmland owned by Borton & Sons, Inc.
    (Borton). In the superior court, both parties filed summary judgment motions. The
    superior court granted Burbank Properties’ motion and afforded it an equitable grace
    period to exercise the right to purchase despite its failure to send timely notice to Borton.
    The granting of summary judgment when a party invokes equity conflicts with legal
    principles. In turn, principles of appellate review clash with our evaluation of a summary
    judgment order granted in equity.
    As already mentioned, without a trial and on summary judgment, the superior
    court issued equitable relief to Burbank Properties. When reviewing a summary
    judgment motion, a trial court or appellate court must not “weigh the evidence.”
    American Express Centurion Bank v. Stratman, 
    172 Wn. App. 667
    , 676, 
    292 P.3d 128
    (2012); Arreygue v. Lutz, 
    116 Wn. App. 938
    , 940-41, 
    69 P.3d 881
     (2003). Nevertheless,
    when a party seeks equitable relief, the court must “weigh and balance the equities of the
    parties,” which inevitably entails weighing numerous facts. Credit Bureau Corp. v.
    Beckstead, 
    63 Wn.2d 183
    , 187, 
    385 P.2d 864
     (1963).
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    On appeal, this court reverses the superior court’s ruling and grants Borton
    summary judgment dismissing as a matter of law Burbank Properties’ request for
    equitable relief. The lead opinion refuses to remand for a trial. Our state high court has
    held that a reviewing court cannot weigh the preponderance of conflicting oral evidence
    when considering equity cases. Darnell v. Noel, 
    34 Wn.2d 428
    , 431, 
    208 P.2d 1194
    (1949). Summary judgment declaration testimony equates to oral testimony at trial.
    In Cornish College of the Arts v. 1000 Virginia Ltd. Partnership, 
    158 Wn. App. 203
    , 
    242 P.3d 1
     (2010), this court affirmed a summary judgment ruling by the superior
    court that granted the tenant a grace period in which to exercise an option to purchase
    despite late notice. This court noted that, due to the discretionary nature of decisions
    issued in equity, granting equitable relief on summary judgment may be inappropriate in
    many cases. The Cornish College court, nonetheless, affirmed the summary judgment
    order while characterizing the evidence as strongly supporting an equitable grace period.
    Like the lead opinion, I question the suitability of granting summary judgment in an
    equity case.
    Despite the anomalous manner in which the parties and the respective courts have
    handled this suit in equity, I would not remand for trial since both parties waived the right
    to demand a trial. I would further rule that the superior court committed no error and
    affirm its summary judgment order favoring Burbank Properties.
    2
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    Neither party before the superior court argued that, assuming the court denied its
    motion for summary judgment, the court should also deny the opposing party’s motion
    because of a dispute of fact or that weighing of equitable factors always demands a trial.
    To the contrary, at page three of its opening summary judgment motion memorandum,
    Borton wrote: “In the present case, there are no disputed material facts, and both parties
    simply disagree on the legal effect of Burbank’s admitted late exercise of its option to
    purchase.” Clerk’s Papers (CP) at 59. In a motion for reconsideration after the superior
    court granted Burbank Properties’ motion, Borton never suggested that the superior court
    deny each party’s motion or conduct a trial.
    In its opening appellate brief, Borton argues for the first time that, since the
    superior court denied its summary judgment motion, the superior court should have at
    least denied Burbank Properties’ summary judgment motion. This contention comes too
    late.
    Generally, issues not raised in the trial court may not be raised for the first time on
    appeal. RAP 2.5(a); State v. Nitsch, 
    100 Wn. App. 512
    , 519, 
    997 P.2d 1000
     (2000).
    Good sense lies behind the requirement that arguments be first asserted at trial. The
    prerequisite affords the trial court an opportunity to rule correctly on a matter before it
    can be presented on appeal. State v. Strine, 
    176 Wn.2d 742
    , 749, 
    293 P.3d 1177
     (2013).
    The rule serves the goal of judicial economy by enabling trial courts to correct mistakes
    and thereby obviate the needless expense of appellate review and further trials, facilitates
    3
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    appellate review by ensuring that a complete record of the issues will be available, and
    prevents adversarial unfairness by ensuring that the prevailing party is not deprived of
    victory by claimed errors that it had no opportunity to address. State v. Strine, 
    176 Wn.2d at 749-50
     (2013); State v. Scott, 
    110 Wn.2d 682
    , 688, 
    757 P.2d 492
     (1988). I
    conclude that both parties waived any requirement that the superior court conduct a trial
    before weighing the evidence and the equities. In fairness to the trial court, this court
    should not reverse its ruling on a ground never presented it except in rare circumstances.
    This appellate court must next determine the standard of review of the trial court’s
    decision to exercise its equitable authority, a risky determination because of the
    anomalous nature of a summary judgment in a suit in equity. On appeal, Burbank
    Properties, on the one hand, argues that this court should defer to the superior court’s
    ruling. Generally, we employ an abuse of discretion standard of review for a trial court’s
    exercise of equitable authority. Emerick v. Cardiac Study Center, Inc., 
    189 Wn. App. 711
    , 730, 
    357 P.3d 696
     (2015); Recreational Equipment, Inc. v. World Wrapps
    Northwest, Inc., 
    165 Wn. App. 553
    , 559, 
    266 P.3d 924
     (2011). On the other hand, Borton
    asks that we review the trial court’s ruling de novo. After all, we review summary
    judgment orders de novo. Keck v. Collins, 
    184 Wn.2d 358
    , 370, 
    357 P.3d 1080
     (2015).
    I would avoid the question of the standard of review in addition to the query about
    the wisdom of granting summary judgment in an equitable suit. Regardless of whether
    4
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    this court defers to the superior court or weighs anew the evidence, I would affirm the
    superior court.
    I move now to the merits. The lease between Burbank Properties and Borton
    reads, in relevant part:
    SECTION EIGHT OPTION TO PURCHASE
    In consideration of Lessee agreeing to sell the property to Lessor and
    to execute this Lease, Lessor hereby gives and grants to the Lessee an
    option to purchase the property for the sum of One Million Eight Hundred
    Thousand and NO/100 DOLLARS ($1,800,000.00) which shall be paid on
    closing. Lessee may exercise its option to purchase the Property at any
    time prior to December 31, 2017. Lessee’s election to exercise this option
    must be evidenced by a written notice addressed to Lessor, sent by
    registered or certified mail to Lessor to Lessor’s last known address. If the
    option is timely exercised, the term of the Lease shall be extended until
    closing.
    ....
    Closing shall occur no later than December 31, 2018. . . .
    CP at 12-13. Burbank Properties prepared its notice to exercise the option on December
    27, but due to inadvertence did not mail the notice until January 4.
    SECTION TEN DEFAULT
    . . . Termination and forfeiture of the lease shall not result if within
    thirty days of the receipt of such notice, Lessee has corrected the default or
    breach, or has taken action reasonably likely to affect such correction within
    a reasonable time. If any rent shall be due and unpaid, or if default shall be
    made in any of the covenants here contained, or should the Lessee fail to pay
    any of the obligations herein mentioned, the Lessor or his attorneys shall
    give the Lessee proper written notices, commence with lawful eviction, and
    have all persons and property removed therefrom as provided in the
    Landlord-Tenant Act (RCW 59.18).
    5
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    CP at 14.
    SECTION THIRTEEN TIME OF THE ESSENCE
    It is specifically declared and agreed that time is of the essence of
    this lease agreement.
    CP at 15.
    This appeal raises important policy questions about parties’ freedom to contract
    and the court’s role in upholding contract provisions or modifying contract terms to serve
    fairness. On the one hand looms equity’s abhorrence of a forfeiture. Wharf Restaurant,
    Inc. v. Port of Seattle, 
    24 Wn. App. 601
    , 611, 
    605 P.2d 334
     (1979). Courts wish not to
    forfeit one’s rights when one inadvertently makes a mistake and a forfeiture would cause
    one hardship and no harm to the other contracting party. Bekins Moving & Storage Co. v.
    Prudential Insurance Co., 
    176 Cal. App. 3d 245
    , 251-52, 
    221 Cal. Rptr. 738
     (1985). If
    there is no harm, why call a foul?
    On the other hand, the law favors definiteness of contracts. United Properties Co.
    v. Walgreen Properties, Inc., 
    2003-NMCA-140
    , 
    134 N.M. 725
    , 
    82 P.3d 535
    , 538-39. A
    court should not interfere with the bargain reached by the parties. United Properties Co.
    v. Walgreen Properties, Inc., 
    82 P.3d at 539
    . Courts may not rewrite obligations that the
    parties have freely bargained for themselves. United Properties Co. v. Walgreen
    Properties, Inc., 
    82 P.3d at 539
     (2003). Equity jurisdiction has never given the judiciary
    a roving commission to do whatever it wishes in the name of fairness or public welfare.
    6
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    United Properties Co. v. Walgreen Properties, Inc., 
    82 P.3d at 541
     (2003). The decision
    of which of two profit-seeking parties is more deserving to prevail is not within the
    province of the courts. United Properties Co. v. Walgreen Properties, Inc., 
    82 P.3d at 544
     (2003).
    A majority of courts that have dealt with the issue on appeal conclude that special
    circumstances may warrant a court in granting equitable relief against a lessee’s failure or
    delay in giving notice to renew an option in its lease. Wharf Restaurant, Inc. v. Port of
    Seattle, 
    24 Wn. App. at 610-11
     (1979); 49 AM. JUR. 2D Landlord and Tenant § 154
    (2018). Washington courts apply the same rules with regard to an option to renew a lease
    and an option to purchase the property. Wharf Restaurant, Inc. v. Port of Seattle, 
    24 Wn. App. 601
     (1979); Cornish College of the Arts v. 1000 Virginia Ltd. Partnership, 
    158 Wn. App. 203
     (2010).
    Washington law follows the rule allowing some relief from strictly applying
    contract terms. Forfeitures are not favored in law and are never enforced in equity unless
    the right thereto is so clear as to permit no denial. Hyrkas v. Knight, 
    64 Wn.2d 733
    , 734,
    
    393 P.2d 943
     (1964). In order to avoid the harshness of forfeitures and the hardship that
    often results from strict enforcement of contract terms, courts frequently grant a period of
    grace to a purchaser before a forfeiture will be decreed. Pardee v. Jolly, 
    163 Wn.2d 558
    ,
    574, 
    182 P.3d 967
     (2008). Whether a grace period is warranted depends on the equities
    in each particular case. Moeller v. Good Hope Farms, Inc., 
    35 Wn.2d 777
    , 783, 
    215 P.2d
                                   7
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    425 (1950). Whether or not an equitable grace period is appropriate depends on the facts
    and circumstances of a case, and is largely within the discretion of the trial court. Pardee
    v. Jolly, 
    163 Wn.2d at 575
     (2008); Heckman Motors, Inc. v. Gunn, 
    73 Wn. App. 84
    , 88,
    
    867 P.2d 683
     (1994).
    In determining whether to grant a grace period, Washington courts review five
    factors identified and applied in Wharf Restaurant, Inc. v. Port of Seattle, 
    24 Wn. App. 601
     (1979). Those elements are:
    (1) the failure to give notice was purely inadvertent, (2) an
    inequitable forfeiture would have resulted without the equitable relief,
    (3) the failure to give timely notice did not prejudice or change the position
    of the other party, (4) the lease was for a long term and (5) there was no
    undue delay in giving notice.
    Cornish College of the Arts v. 1000 Virginia Ltd. Partnership, 158 Wn. App. at 218
    (2010). Not all five of these circumstances need be present in every case in which an
    equitable grace period is granted. Cornish College of the Arts v. 1000 Virginia Ltd.
    Partnership, 158 Wn. App. at 218. Indeed, such an inflexible approach would be
    inconsistent with the trial court’s broad discretion to fashion equitable remedies. Cornish
    College of the Arts v. 1000 Virginia Ltd. Partnership, 158 Wn. App. at 218.
    Borton relies on a passage in Wharf Restaurant, Inc. v. Port of Seattle, 
    24 Wn. App. 601
     (1979), that cites Professor Corbin in his treatise on the law of contracts.
    Corbin writes that courts have only granted an equitable graced period in cases wherein
    the holder of the option made valuable permanent improvements to the property. Wharf
    8
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    Restaurant, Inc. v. Port of Seattle, 
    24 Wn. App. at 611
    , citing 1 A. Corbin, Corbin on
    Contracts § 35, at 146-47 (1963). In turn, I recognize that the four Washington decisions,
    in which courts have granted a grace period, entail the tenant fashioning permanent
    improvements to the real property. Pardee v. Jolly, 
    163 Wn.2d 558
     (2008); Recreational
    Equipment, Inc. v. World Wrapps Northwest, Inc., 
    165 Wn. App. 553
     (2011); Cornish
    College of the Arts v. 1000 Virginia Ltd. Partnership, 
    158 Wn. App. 203
     (2010); Wharf
    Restaurant, Inc. v. Port of Seattle, 
    24 Wn. App. 601
     (1979). I disagree, however, that,
    based on reference to Professor Corbin and the presence of improvements in the
    Washington decisions, Washington law always demands valuable permanent
    improvements as a precondition to an equitable grace period.
    I note that the five factors adopted in Wharf Restaurant, Inc. v. Port of Seattle do
    not include the optionee adding significant improvements to the property. Some of the
    Washington courts discuss the addition of improvements to the land or building when
    analyzing whether the optionee fulfills element two of the test, an inequitable forfeiture
    resulting if equity does not intervene. Nevertheless, inequity may result regardless of
    whether the optionee improves the real property. Also, if my predecessors on this court
    deemed an improvement as a necessary factor, the prior decisions could have and should
    have expressly placed the element in the list of factors. If earlier courts deemed valuable
    improvements to be a qualifier outside the five element factors, the courts would not have
    discussed improvements within the context of element two.
    9
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    No Washington court has specifically held that substantial permanent
    improvements to the property is essential to a grace period. Instead Washington courts
    observe that all five circumstances need not be present in every case in which an
    equitable grace period is granted. Cornish College of the Arts v. 1000 Virginia Ltd.
    Partnership, 158 Wn. App. at 218. Therefore, element two, which sometimes includes
    substantial improvements, cannot be an indispensable circumstance.
    Applying a rigid rule that precludes a grace period under one particular
    circumstance is anathema to equity. To repeat, whether a grace period is warranted
    depends on the equities in each particular case. Moeller v. Good Hope Farms, Inc., 
    35 Wn.2d at 783
     (1950). Whether or not an equitable grace period is appropriate depends on
    the facts and circumstances of a case and is largely within the discretion of the trial court.
    Pardee v. Jolly, 
    163 Wn.2d at 575
     (2008). An inflexible approach would be inconsistent
    with the trial court’s broad discretion to fashion equitable remedies. Cornish College of
    the Arts v. 1000 Virginia Ltd. Partnership, 158 Wn. App. at 218. Thus, the court must
    review all relevant circumstances, not simply whether the optionee improved the real
    property. If one factor controlled, the law would hamstring the trial court’s discretion.
    No case announces any reason behind adopting a rule necessitating an
    improvement to the land for a grace period. Presumably, such a rule deems expenditures
    as the only acceptable form of prejudice to the optionee, and the rule does not wish the
    optionor to receive a windfall by gaining possession of the improvements. But the
    10
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    opposite side of the prejudice coin is lack of prejudice to the optionor. No decision
    explains why prejudice to the optionee is more important than lack of prejudice to the
    optionor.
    A contractual deadline for the exercise of the option allows the optionor to plan
    and act based on a firm understanding of whether the optionee will buy the land.
    Burbank Properties’ delay was so short that Borton changed no plans. Instead, Borton
    wants the rigid application of a rule in order to gain a windfall. Since the common era,
    grace has superseded the application of rigid rules.
    Part performance, an equitable doctrine, includes three elements: (1) delivery and
    assumption of actual and exclusive possession, (2) payment or tender of consideration,
    and (3) the making of permanent, substantial and valuable improvements, referable to the
    contract. Berg v. Ting, 
    125 Wn.2d 544
    , 556, 
    886 P.2d 564
     (1995). Despite
    improvements constituting an element, equity does not deem improvements to be a
    necessary element, if a party fulfills the other two elements. Berg v. Ting, 
    125 Wn.2d at 558
     (involving consideration as the missing element). In the context of part performance,
    equity also wishes the trial court to weigh the particular facts and circumstances of each
    discrete case rather than apply a rigid, formulaic rules. Berg v. Ting, 
    125 Wn.2d at 557
    .
    Now the facts. One might ponder if exercising the option was so important to
    Burbank Properties, why Eric Rogers failed to plant in advance numerous prompts and
    reminders to insure timely exercise of the option. An astute and cautious businessperson
    11
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    would forgo other tasks, mail several notices by certified mail a week or more in
    advance, and personally deliver the notice days before the option expired on December
    31. But people make mistakes and equity sometimes aids the forgetful when the
    forgetfulness does not harm another.
    I agree with Borton that Burbank Properties installed no substantial improvements.
    Still it planted a hay crop and would not benefit from the crop’s presence in 2019 if it
    could not exercise the option. More importantly, Burbank Properties suffers other
    inequities as a result of forfeiture of the option. Burbank Properties loses equity of
    $75,000 in the land. It loses land it has farmed since 2000. At the same time, Borton
    reaps a profit of at least $250,000 if Burbank Properties buys the land.
    The other four factors weigh heavily in favor of Burbank Properties. Burbank
    Properties had a long term lease with Borton. Eric Rogers, or Burbank Properties,
    repeatedly told Borton that Burbank Properties intended to exercise the option. The
    failure to send notice by December 31 was inadvertent. Eric Rogers prepared the notice
    on December 28 and then left it on his desk.
    Burbank Properties exercised the option only four days late. It mailed the notice
    on January 4, rather than December 31. Borton took no steps between December 31 and
    January 4 as a result of an untimely exercise of the option. Borton did not even take any
    steps by January 8, the day of receipt of the notice. Borton suffered no iota, scintilla,
    mite, or tittle of prejudice from the late exercise.
    12
    No. 36189-6-III
    Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)
    I note that the option paragraph in the Borton-Burbank Properties lease does not
    indicate whether Burbank Properties needed to mail the notice by December 31 or
    whether Borton needed to receive the notice by December 31. Generally, notice by mail
    is considered complete on mailing, not on receipt. 58 AM. JUR. 2D Notice § 29 (2012).
    Let us assume that Burbank Properties mailed the notice of exercise on December 31,
    but, because of delays in the mail, Borton did not receive the notice until January 8.
    Borton would have been in no different position than that which actually occurred.
    This appeal also holds a unique factor. Closing of the sale was not to occur until
    December 2018. A delayed closing bolsters the lack of any prejudice to Borton.
    On appeal, Borton also argues that Burbank Properties provided no evidence that
    it could pay the purchase price at closing. Nevertheless, closing would occur one year
    later. Borton provided no evidence or analysis as to Burbank Properties being unable to
    purchase at that later date.
    I DISSENT:
    �� • ..:r.·
    Fearing, J.
    13