Candace Noll v. Special Electric Co , 444 P.3d 33 ( 2019 )


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  •            THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    CANDACE NOLL, Individually and as           No. 77888-9-1
    Personal Representative of the Estate of
    Donald Noll, Deceased,                      DIVISION ONE
    Appellant,              PUBLISHED OPINION
    V.
    SPECIAL ELECTRIC COMPANY, INC.,
    Respondent,
    and
    AMERICAN B1LTRITE, 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.,
    No. 77888-9-1/2
    Defendants.                )
    )         FILED: July 1, 2019
    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
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    No. 77888-9-1/3
    court's decision in State v. LG Electronics, Inc., 
    186 Wash. 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 Wash. 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 nova, 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 Wash. 2d 611
    , 620, 
    732 P.2d 149
    (1987)(pleadings considered on their facts, not their
    name); Colorado Nat. Bank of Denver v. Merlino, 
    35 Wash. 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
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    No. 77888-9-1/4
    rules, we may look to the federal courts' interpretation of parallel rules for guidance.
    Outsource Ser. Mqmt, LLC v. Nooksack Bus. Corp., 
    172 Wash. App. 799
    , 806, 292 P.3d
    147(2013)(citing Bryant V. Joseph Tree., Inc., 
    119 Wash. 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.q., 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 Wash. 2d 732
    ,
    740, n.4, 
    426 P.3d 714
    (2018), see also State v. Jeannotte, 
    133 Wash. 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 Wash. 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 Marriaqe of Lanham
    and Kolde, 
    153 Wash. 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 Wash. 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
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    No. 77888-9-1/5
    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.
    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 Wash. 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. Svs.
    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
    52(a)(1), rather than a motion exempt from findings of fact under CR 52(a)(5)(B). Most
    importantly, the procedural posture of this case warrants findings of fact to allow
    meaningful review.
    5
    No. 77888-9-1/6
    Generally, a failure to state separate findings of fact is not fatal to an order if
    the reviewing court can determine the questions the trial court decided and the
    reasons for the decision. Backlund v. Univ. of Wash., 
    137 Wash. 2d 651
    , 656 n. 1, 975
    P.2d 950(1999)(citing Knudsen v. Patton, 
    26 Wash. App. 134
    , 135 n. 1,611 P.2d 1354,
    review denied, 
    94 Wash. 2d 1008
    (1980)). The reviewing court can consider the trial
    court's oral ruling to aid its determination. 
    Backlund, 137 Wash. 2d at 656
    n.1 (citing In re
    Marriage of Booth, 
    114 Wash. 2d 772
    , 777, 
    791 P.2d 519
    (1990)). When the reviewing
    court is unable to determine the trial court's understanding, the appropriate remedy is
    to remand the case for findings of fact. Garcia v. Henley, 
    190 Wash. 2d 539
    , 544, 
    415 P.3d 241
    (2018)(citing Old Windmill Ranch v. Smotherman, 
    69 Wash. 2d 383
    , 390, 
    418 P.2d 720
    (1966)).
    Here, Noll was required to prove personal jurisdiction by a preponderance of
    the evidence. Special Electric implores us to rely on implied findings of fact based on
    the trial court's decision. But it is the responsibility of the prevailing party to procure
    findings of fact. 
    Backlund, 137 Wash. 2d at 656
    n. 1 (citing Peoples Nat'l Bank v. Birnev's
    Enters., Inc., 
    54 Wash. App. 668
    , 670, 
    775 P.2d 466
    (1989). The record indicates that
    the parties and trial court agreed that the prevailing party should prepare a formal
    order. Nothing in the record suggests Special Electric prepared a formal order or
    requested findings of fact.
    We are not inclined to speculate on findings beneficial to the party that failed
    to procure them. Additionally, the subject of specific jurisdiction is not well-settled law.
    Decisions from the highest courts in the land contain significant disagreement as to
    how courts should test evidence of personal jurisdiction. See LG 
    Elec., 186 Wash. 2d at 6
    No. 77888-9-1/7
    190-91, 
    cf. 186 Wash. 2d at 202-04
    (Gordon McCloud, J., dissenting). Given the record,
    we can only speculate as to what test the trial court decided to apply. We will not infer
    facts based on speculation.           No oral ruling exists to help us make those
    determinations. Because we have no reliable indication of the facts as the trial court
    understood them, we remand this case for separate findings of fact.
    On remand, we direct the trial court to make findings on the following issues in
    order to answer the questions presented in LG Electronics and Noll, as well as any
    other findings of fact that support its decision:
    1. Did Special Electric control a significant share of the United States
    market for asbestos?
    2. Did Special Electric intend for its asbestos to be incorporated into
    products sold across the United States and in Washington?
    3. Was a substantial volume of CertainTeed asbestos-cement pipe
    containing Special Electric's asbestos sold in Washington as part of the
    regular flow of commerce?
    4. Did Special Electric know that CertainTeed sold asbestos-cement pipe
    in Washington?
    5. Should Special Electric have known that CertainTeed sold asbestos-
    cement pipe in Washington?
    This court will retain jurisdiction over the appeal. Upon entry of appropriate
    findings, they shall be transmitted to the clerk of this court. The panel will determine
    whether additional briefing is necessary, but will remain open to a request from either
    party to file a supplemental brief concerning the findings of fact.
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    No. 77888-9-1/8
    Remanded.
    WE CONCUR:
    .AAAALLA--1
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