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

2 No. 77888-9-1/3

court's decision in State v. LG Electronics, Inc.,

,

(2016)

cert. denied —U.S.—,

,

(2017). Noll v. Am. Biltrite

Inc.,

, 416,

(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,

,

(1987)(pleadings considered on their facts, not their

name); Colorado Nat. Bank of Denver v. Merlino,

,

(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

3 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.,

,

(2013)(citing Bryant V. Joseph Tree., Inc.,

,

(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.,

(9th Cir. 1985). Clear error review mirrors

Washington's substantial evidence review. See State v. Ramirez,

,

(2018), see also State v. Jeannotte,

,

(1997). These are the usual standards of review in Washington for

conclusions of law and findings of fact. In re Disciplinary Proceeding Against Pfefer,

,

(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,

,

(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.

,

(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

4 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.,

,

(2014)(quoting Lewis v. Bours,

,

(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.,

(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.,

, 656 n. 1,

(1999)(citing Knudsen v. Patton,

, 135 n. 1,

,

review denied,

(1980)). The reviewing court can consider the trial

court's oral ruling to aid its determination. Backlund,

n.1 (citing In re

Marriage of Booth,

,

(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,

,

(2018)(citing Old Windmill Ranch v. Smotherman,

,

(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,

n. 1 (citing Peoples Nat'l Bank v. Birnev's

Enters., Inc.,

,

(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.,

6 No. 77888-9-1/7

190-91, cf.

(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.

7 No. 77888-9-1/8

Remanded.

WE CONCUR:

.AAAALLA--1

8