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

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(2012); Arreygue v. Lutz, 116 Wn. App. 938, 940-41, 69 P.3d 881 (2003). Nevertheless,

when a party seeks equitable relief, the court must “weigh and balance the equities of the

parties,” which inevitably entails weighing numerous facts. Credit Bureau Corp. v.

Beckstead, 63 Wn.2d 183, 187, 385 P.2d 864 (1963).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 36189-6-III
Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)

On appeal, this court reverses the superior court’s ruling and grants Borton

summary judgment dismissing as a matter of law Burbank Properties’ request for

equitable relief. The lead opinion refuses to remand for a trial. Our state high court has

held that a reviewing court cannot weigh the preponderance of conflicting oral evidence

when considering equity cases. Darnell v. Noel, 34 Wn.2d 428, 431, 208 P.2d 1194

(1949). Summary judgment declaration testimony equates to oral testimony at trial.

In Cornish College of the Arts v. 1000 Virginia Ltd. Partnership, 158 Wn. App.

203, 242 P.3d 1 (2010), this court affirmed a summary judgment ruling by the superior

court that granted the tenant a grace period in which to exercise an option to purchase

despite late notice. This court noted that, due to the discretionary nature of decisions

issued in equity, granting equitable relief on summary judgment may be inappropriate in

many cases. The Cornish College court, nonetheless, affirmed the summary judgment

order while characterizing the evidence as strongly supporting an equitable grace period.

Like the lead opinion, I question the suitability of granting summary judgment in an

equity case.

Despite the anomalous manner in which the parties and the respective courts have