Johnson v. Rothstein, 20844-6-I
| Decision Date | 29 August 1988 |
| Docket Number | No. 20844-6-I,20844-6-I |
| Court | Washington Court of Appeals |
| Parties | Raymond E. JOHNSON, and Georgia Johnson, his wife, and their marital community; and James F. Flynn and Eleanor Flynn, his wife and their marital community, Respondents, v. Alan G. ROTHSTEIN, Kay Higdon Rothstein, his wife, and their marital community, Appellants, and Flynn, Adelstein, Sharpe and Serka, a Washington general partnership; Steven B. Adelstein and Jane Doe Adelstein, husband and wife; Philip E. Sharpe and Jane Doe Sharpe, husband and wife; Philip A. Serka and Jane Doe Serka, husband and wife, Additional Counterclaim Defendants. James F. FLYNN, Respondent, v. MAUI, INC., Appellant, and Flynn, Adelstein, Sharpe and Serka, a Washington general partnership; Steven B. Adelstein and Jane Doe Adelstein, husband and wife; Philip E. Sharpe and Jane Doe Sharpe, husband and wife; and Eleanor Flynn, wife of James F. Flynn, Additional Counterclaim Defendants. |
Anne McDonald, Seattle, for Raymond E. Johnson and Georgia johnson.
Peter A. Danelo, Syrdal, Danelo, Klein, Myre & Woods, P.S., Seattle, for Alan & Kay Rothstein.
William H. Fligeltaub, Seattle, for James & Eleanor Flynn.
Maui, Inc., and Alan and Kay Rothstein (Rothstein) appeal from a judgment on a verdict finding Rothstein to have breached fiduciary duties and to have made negligent misrepresentations to Raymond and Georgia Johnson (Johnson), and to James and Eleanor Flynn (Flynn). Rothstein's sole contention on appeal is that the trial court erred in denying a motion for partial summary judgment by which Rothstein sought dismissal of Flynn and Johnson's negligent misrepresentation and breach of fiduciary duty claims. 1
The parties became acquainted in 1972 and were subsequently involved in various business relationships until May 1985, when Johnson and Flynn filed this lawsuit against Rothstein. After Rothstein's motion for partial summary judgment was denied, the case went to a 5-week jury trial. This appeal followed.
We do not reach the merits of the appeal because this court, sua sponte, has raised an issue that we find to be determinative: Whether a denial of summary judgment is appealable after there has occurred a trial on the same issues. We hold that a denial of summary judgment cannot be appealed following a trial if the denial was based upon a determination that material facts are in dispute and must be resolved by the trier of fact. 2
Pursuant to our authority under RAP 12.1(b), 3 we raise this issue sua sponte because it is one that affects judicial economy and involves interpreting court rules that define our jurisdiction. RAP 2.2 delineates the only decisions of the superior court which may be appealed as a matter of right. Of these, only two subsections of the rule might be thought to apply to the circumstances of this case: (1) RAP 2.2(a)(1), allowing an appeal from a final judgment; and (2) RAP 2.2(a)(3), allowing an appeal from a decision determining the action. We conclude that once a trial on the merits is held, neither of these subsections permits review of a pretrial order denying summary judgment when such denial is based on a trial court's determination of the presence of disputed, material facts. 4
An order denying summary judgment is not a final judgment within the meaning of RAP 2.2(a)(1) because it is irrelevant to a final judgment on a verdict:
Summary judgment is not a substitute for a trial; it exists as a mechanism to decide whether there exists any truly disputed material facts. Once the determination is made, rightly or wrongly, that there are issues of fact that can be resolved only after full hearing, the summary judgment procedure has no further relevance[.]
Morgan v. American Univ., 534 A.2d 323, 327 (D.C.App.1987). Nor is a denial of summary judgment based on a trial court's determination of the presence of material, disputed facts a decision determining the action, defined by RAP 2.2(a)(3) as "[a]ny written decision affecting a substantial right ... which in effect determines the action and prevents a final judgment or discontinues the action." Rather than preventing final judgment or discontinuing the action, the trial court's decision here ensured resolution of the parties' disputes by a trier of fact.
By virtue of our holding, 5 we join the vast majority of other jurisdictions which have ruled that an order denying summary judgment, based upon the presence of material, disputed facts, will not be reviewed when raised after a trial on the merits. E.g., Fleitz v. Van Westrienen, 114 Ariz. 246, 560 P.2d 430 (1977); Phillips v. Abel, 141 Ga.App. 291, 233 S.E.2d 384 (1977); Home Indem. Co. v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274, 278 (1962); All-States Leasing Co. v. Pacific Empire Land Corp., 31 Or.App. 733, 571 P.2d 192 (1977); Morgan v. American Univ., supra; accord Annot., Reviewability of Order Denying Motion for Summary Judgment, 15 A.L.R.3d 899, 922-25 (1967).
Two independent grounds are normally given for this ruling. The first is based on policy considerations. We find particularly persuasive the Idaho court's rationale:
The final judgment in a case can be tested upon the record made at trial, not the record made at the time summary judgment was denied. Any legal rulings made by the trial court affecting that final judgment can be reviewed at that time in light of the full record. This will prevent a litigant who loses a case, after a full and fair trial, from having an appellate court go back to the time when the litigant had moved for summary judgment to view the relative strengths and weaknesses of the litigants at that earlier stage. Were we to hold otherwise, one who had sustained his position after a fair hearing of the whole case might nevertheless lose, because he had failed to prove his case fully on an interlocutory motion.
Evans v. Jensen, 103 Idaho 937, 655 P.2d 454, 459 (1982).
As another court has reasoned:
To deny a review seems to be unjust. But to grant it ... would be unjust to the party that was victorious at the trial, which won judgment after the evidence was more completely presented, where cross-examination played its part and where witnesses were seen and appraised.
The greater injustice would be to the party which would be deprived of the jury verdict. Otherwise, a decision based on less evidence would prevail over a verdict reached on more evidence and judgment would be taken away from the victor and given to the loser despite the victor having the greater weight of evidence. This would defeat the fundamental purpose of judicial inquiry.
Home Indem. Co., 187 N.E.2d at 278.
The second ground for refusing review is related to the purpose and nature of summary judgment proceedings. The primary purpose of a summary judgment procedure is to avoid a useless trial. Olympic Fish Prods., Inc. v. Lloyd, 93 Wash.2d 596, 602, 611 P.2d 737 (1980); Ryder v. Port of Seattle, 50 Wash.App. 144, 148, 748 P.2d 243 (1987). Once a trial on the merits is had, review of a denial of a motion for summary judgment would do nothing to further this purpose. Moreover, the nature of a summary judgment is such that once the issues have been tried to a finder of fact, the summary judgment procedure to determine the presence of genuine, material issues of fact has no further relevance. See Morgan v. American Univ., supra. This same ground is also sometimes expressed in terms of merger or mootness. See Phillips, 233 S.E.2d at 384 (); Home Indem. Co., 187 N.E.2d at 278 ().
The minority position on this issue is advocated in 10 C. Wright, A. Miller, & M. Kane, Fed.Prac. & Proc. § 2715, at 636-38 (2d ed. 1983). The Ohio court has followed Wright & Miller and will review a denial of summary judgment. See Balson v. Dodds, 62 Ohio St.2d 287, 405 N.E.2d 293 (1980). The Balson court reasoned that to hold otherwise would force an appellant to choose either a trial on the merits without preserving the trial court's alleged error on summary judgment for appellate review, or immediate appellate...
To continue reading
Request your trial
-
Washburn v. City of Fed. Way, 66534–1–I.
...65 P.3d 16 (quoting Brothers v. Pub. Sch. Emps. of Wash., 88 Wash.App. 398, 409, 945 P.2d 208 (1997) (citing Johnson v. Rothstein, 52 Wash.App. 303, 304, 759 P.2d 471 (1988))). 77. Commissioner's Ruling Denying Discretionary Review, Clerk's Papers at 751. 78.Id. at 758–60. 79. Reply Brief o......
-
224 Westlake, LLC v. Engstrom Props., LLC
...on the presence of material, disputed facts, it “will not be reviewed when raised after a trial on the merits.” Johnson v. Rothstein, 52 Wash.App. 303, 306, 759 P.2d 471 (1988). Engstrom contends the denial of summary judgment was based on what Engstrom asserts is a purely legal issue of co......
-
State v. Jackson
...v. Children's Orthopedic Hosp. and Medical Ctr., 123 Wash.2d 15, 35 n. 9, 864 P.2d 921 (1993) (citing Johnson v. Rothstein, 52 Wash.App. 303, 306, 759 P.2d 471 (1988)).42 Baeza, 100 Wash.2d at 488, 670 P.2d 646; Chavez, 65 Wash.App. at 605, 829 P.2d 1118; Young, 50 Wash.App. at 111, 747 P.2......
-
Maytown Sand & Gravel LLC v. Thurston Cnty.
...the merits is held, we review a pretrial order denying summary judgment only if it involved a question of law. Johnson v. Rothstein , 52 Wash.App. 303, 306, 759 P.2d 471 (1988). Here, the trial court denied the County's motion for summary judgment because issues of material fact remained. T......
-
Table of Cases
...denied, 179 Wn.2d 1025 (2014): 17.7(6) Johnson v. Jones, 91 Wn. App. 127, 955 P.2d 826 (1998): 5.2(1)(a), 17.7(7) Johnson v. Rothstein, 52 Wn. App. 303, 759 P.2d 471 (1988): 16.2(2) Jones, In re, 129 Wn. App. 626, 120 P.3d 84 (2005): 24.11 Jones Assocs., Inc. v. Eastside Props., Inc., 41 Wn......
-
§ 16.2 Basis for Decision
...the interpretation of court rules defining the appellate court's jurisdiction under RAP 12.1(b). For instance in Johnson v. Rothstein, 52 Wn. App. 303, 304, 759 P.2d 471 (1988), the court decided without any briefing by the parties that an appellate court will not review the denial of a mot......