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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court's decision in State v. LG Electronics, Inc., 186 Wn.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 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
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
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rules, we may look to the federal courts' interpretation of parallel rules for guidance.
Outsource Ser. Mqmt, 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.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 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 Marriaqe of Lanham
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
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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 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. 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.
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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 Wn.2d 651, 656 n. 1, 975
P.2d 950(1999)(citing Knudsen v. Patton, 26 Wn. App. 134, 135 n. 1,611 P.2d 1354,
review denied, 94 Wn.2d 1008 (1980)). The reviewing court can consider the trial
court's oral ruling to aid its determination. Backlund, 137 Wn.2d at 656 n.1 (citing In re
Marriage of Booth, 114 Wn.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 Wn.2d 539, 544, 415
P.3d 241 (2018)(citing Old Windmill Ranch v. Smotherman, 69 Wn.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 Wn.2d at 656 n. 1 (citing Peoples Nat'l Bank v. Birnev's
Enters., Inc., 54 Wn. 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 Wn.2d at
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No. 77888-9-1/7
190-91, cf. 186 Wn.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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