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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Lawrence, Berrey, C.J.

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