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

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Burbank argued to the trial court that it would suffer an unjust loss and Borton

would receive an unjust benefit if Borton was permitted to retain the farm it purchased at

a discount. But as explained above, there was nothing unjust about Borton acquiring the

encumbered farm at a discount. Burbank has failed to show that the forfeiture would be

inequitable. The trial court, therefore, abused its discretion by granting Burbank an

equitable remedy.

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Lawrence-Berrey, C.J.

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

No. 36189-6-III

FEARING, J. (dissenting) — For a civil practitioner, this appeal presents absorbing

questions entailing the overlay of summary judgment jurisprudence, appellate review,

and equity. Burbank Properties, LLC (Burbank Properties) seeks a grace period by

which to exercise an option to purchase farmland owned by Borton & Sons, Inc.

(Borton). In the superior court, both parties filed summary judgment motions. The

superior court granted Burbank Properties’ motion and afforded it an equitable grace

period to exercise the right to purchase despite its failure to send timely notice to Borton.

The granting of summary judgment when a party invokes equity conflicts with legal

principles. In turn, principles of appellate review clash with our evaluation of a summary

judgment order granted in equity.

As already mentioned, without a trial and on summary judgment, the superior

court issued equitable relief to Burbank Properties. When reviewing a summary

judgment motion, a trial court or appellate court must not “weigh the evidence.”

American Express Centurion Bank v. Stratman, 172 Wn. App. 667, 676, 292 P.3d 128