Wash. Court of Appeals published opinion — 361896_pub.pdf

Citation: Wash. Court of Appeals published opinion — 361896_pub.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/361896_pub.pdf ↗

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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
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

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