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

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handled this suit in equity, I would not remand for trial since both parties waived the right

to demand a trial. I would further rule that the superior court committed no error and

affirm its summary judgment order favoring Burbank Properties.

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

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

Neither party before the superior court argued that, assuming the court denied its

motion for summary judgment, the court should also deny the opposing party’s motion

because of a dispute of fact or that weighing of equitable factors always demands a trial.

To the contrary, at page three of its opening summary judgment motion memorandum,

Borton wrote: “In the present case, there are no disputed material facts, and both parties

simply disagree on the legal effect of Burbank’s admitted late exercise of its option to

purchase.” Clerk’s Papers (CP) at 59. In a motion for reconsideration after the superior

court granted Burbank Properties’ motion, Borton never suggested that the superior court

deny each party’s motion or conduct a trial.

In its opening appellate brief, Borton argues for the first time that, since the

superior court denied its summary judgment motion, the superior court should have at

least denied Burbank Properties’ summary judgment motion. This contention comes too

late.

Generally, issues not raised in the trial court may not be raised for the first time on

appeal. RAP 2.5(a); State v. Nitsch, 100 Wn. App. 512, 519, 997 P.2d 1000 (2000).

Good sense lies behind the requirement that arguments be first asserted at trial. The

prerequisite affords the trial court an opportunity to rule correctly on a matter before it