IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANDREW MACGREGOR ) ROBERTSON and RENEE ESME ) No. 79613-5-I ROBERTSON, in their individual and ) marital community; and CAY MICHAEL ) MIERISCH and CASSANDRA ) DIVISION ONE MIERISCH, in their individual and ) marital community, ) ) Appellants, ) ) v. ) ) JUN YU DEVELOPMENT II, LLC, a ) Washington limited liability company; ) and JANICKI LOGGING & ) CONSTRUCTION CO., INC., a ) UNPUBLISHED OPINION Washington corporation, ) ) Respondents. ) )
SMITH, J. — Andrew Robertson, Renee Robertson, Cay Mierisch, and
Cassandra Mierisch (collectively Robertsons) own property in Whatcom County.
When the Robertsons purchased their property in 2014, the seller, Trillium
Corporation, assigned to the Robertsons its claims against third parties arising
from any trespasses that had occurred during Trillium’s ownership. The
Robertsons subsequently sued Janicki Logging & Construction Co. Inc. and Jun
Yu Development II LLC (JYD), alleging trespass and other related claims arising
out of Janicki’s activities on the property.
Janicki, joined by JYD, moved for summary judgment, arguing that the
Robertsons lacked standing because (1) the assignment of Trillium’s trespass No. 79613-5-I/2
claims to the Robertsons merged into the deed between Trillium and the
Robertsons and (2) the “as is” clause in the purchase agreement between
Trillium and the Robertsons barred the Robertsons’ claims. The trial court
granted the motion and dismissed the Robertsons’ claims.
This was error. Because the only reasonable conclusion from the record
is that Trillium and the Robertsons intended that the assignment not merge into
the deed, merger does not apply. And although the “as is” clause may have
barred certain claims against Trillium, it did not bar the Robertsons’ claims
against JYD and Janicki. Therefore, we reverse and remand for further
proceedings.
BACKGROUND
JYD owns almost 400 acres of property, which it purchased in late 2011,
in the Semiahmoo area of Whatcom County. In June 2012, JYD retained Janicki
to perform logging and related services on JYD’s property. It is undisputed that
in the contract between JYD and Janicki, the exhibits designating the area in
which Janicki’s activities were to take place included a 20-acre parcel, located at
8746 Semiahmoo Drive (8746 Property), that was owned by Trillium and not by
JYD.
Additionally, and although the parties disagree about the extent of
Janicki’s activities on the 8746 Property and the nature and amount of damages
resulting therefrom, it is undisputed that in early 2013, Janicki conducted some
surface water reditching operations on the 8746 Property. It also is undisputed
that later in 2013, Janicki harvested some trees from the 8746 Property.
2 No. 79613-5-I/3
According to Janicki’s principal, the reditching and logging activities conducted
on the 8746 Property were conducted “under the mistaken belief that the
property was owned by [JYD].”
In June 2014, Trillium and the Robertsons entered into a Real Estate
Purchase and Sale Agreement (REPSA) whereby Trillium agreed to sell the 8746
Property to the Robertsons. Under the REPSA, Trillium agreed to assign certain
trespass and related claims to the Robertsons. The REPSA also contained an
“as is” clause stating that except otherwise set forth in the REPSA, “the Property
is being sold by Seller, and Buyer agrees to accept the Property, ‘AS-IS’ in its
condition on the Closing Date.”
On July 11, 2014, Trillium conveyed the 8746 Property to the Robertsons
by statutory warranty deed (Deed).
On July 23, 2014, Trillium and the Robertsons entered into an
“Assignment and Assumption of Claims” (Assignment Agreement) whereby
Trillium assigned certain trespass and related claims to the Robertsons:
Seller hereby assigns, conveys and delivers to Buyer all of Seller’s right, title and interest, if any, in any and all claims against third parties arising from any trespass on the Property or timber trespass on timber and other forest products located or previously located on the Property, including any and all claims under RCW Chapter 64.12 and/or RCW 4.24.630.
On June 19, 2015, the Robertsons sued JYD and Janicki, asserting
causes of action for ejectment, trespass and conversion, statutory trespass,
timber trespass, and injunction or abatement related to Janicki’s activities on the
8746 Property. The Robertsons then moved for summary judgment, seeking an
order confirming that JYD and Janicki committed statutory trespass or, in the
3 No. 79613-5-I/4
alternative, timber trespass or common law trespass. The Robertsons also
sought an order declaring that the Robertsons “have incurred damages in the
amount of $4,212.87 for the harvested timber” and that JYD and Janicki could
not assert the “common enemy doctrine” as a defense to trespass.1 The trial
court initially granted the Robertsons’ motion. But on reconsideration, the court
denied the motion, citing the existence of remaining issues of material fact.
On October 6, 2017, the Robertsons filed another motion for summary
judgment, arguing that certain of JYD’s and Janicki’s affirmative defenses should
be stricken. The trial court denied this motion as well, again citing to remaining
issues of fact.
On September 10, 2018, Janicki filed a summary judgment motion, in
which JYD joined. Janicki pointed out that exhibit B to the Deed set forth what
Janicki characterized as “exceptions and reservations to the deed describing
matters retained by Trillium . . . and other encumbrances to the property.”
Janicki also pointed out that exhibit B listed, among other things, “[a]ny rights,
interests or claims which may exist or arise by reason of” certain facts reflected
by a July 21, 2014, survey, including a “[c]ulvert crossing” and “[d]itches.”
(Emphasis omitted.) Thus, Janicki argued, no interest in any claims arising out of
the existing culvert crossing and ditches was ever transferred from Trillium to the
1 “[T]he common enemy doctrine in Washington allows landowners to alter the flow of surface water to the detriment of their neighbors, so long as they do not block a watercourse or natural drainway, nor collect and discharge water onto their neighbors’ land in quantities greater than, or in a manner different from, its natural flow.” Currens v. Sleek, 138 Wn.2d 858, 862-63, 983 P.2d 626, 993 P.2d 900 (1999). 4 No. 79613-5-I/5
Robertsons, and Trillium’s assignment of its trespass claims merged into the
Deed. Janicki argued further that because the Robertsons were aware of the
condition of the 8746 Property and purchased it “as-is,” they “waived their ability
to bring a claim for damages arising from the condition of the property.”
Therefore, contended Janicki, the only claim available to the Robertsons was one
for the value of the timber harvested from the 8746 Property. Janicki argued that
the value of that timber was no more than $1,000 and that treble damages were
unwarranted because Janicki believed in good faith that it was harvested from
property belonging to JYD. Finally, Janicki argued that even if the Robertsons
could assert a trespass claim based on Janicki’s reditching activities, there was
no evidence that those activities caused any damages to the 8746 Property.
The trial court initially denied Janicki’s motion. Janicki, joined by JYD,
then moved for reconsideration. It argued, again relying on the doctrine of
merger, that any assignment of Trillium’s trespass claims to the Robertsons did
not survive merger with the Deed.
On February 19, 2019, the trial court entered an order granting Janicki’s
motion for reconsideration and dismissing the Robertsons’ claims with prejudice.
The Robertsons appeal, contending that the trial court erred by (1) summarily
dismissing their claims and (2) denying their earlier motions for summary
judgment. We address each of these contentions below.
DISMISSAL OF THE ROBERTSONS’ CLAIMS
The Robertsons contend that the trial court erred by summarily dismissing
their claims. We agree.
5 No. 79613-5-I/6
Standard of Review
The trial court initially denied Janicki’s motion for summary judgment, in
which Janicki (joined by JYD) relied on the merger doctrine and the fact that the
Robertsons purchased the 8746 Property “as is” to argue that the Robertsons
lacked standing. Then, on reconsideration, it granted Janicki’s motion. Under
these circumstances, this court reviews the trial court’s decision de novo, and the
usual standards for summary judgment apply. Weber v. Budget Truck Rental,
LLC, 162 Wn. App. 5, 8, 254 P.3d 196 (2011). To that end, summary judgment
is appropriate when, viewing the evidence in the light most favorable to the
nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. CR 56(c); Cameron v. Atlantic
Richfield Co., 8 Wn. App. 2d 795, 799, 442 P.3d 31 (2019).
Analysis
The Robertsons contend that trespass claims are assignable and that the
Assignment Agreement effectively assigned the claims described therein from
Trillium to the Robertsons. Thus, the Robertsons argue, the trial court erred
when it dismissed the Robertsons’ claims, apparently accepting Janicki’s
argument that the Robertsons lacked standing. We agree with the Robertsons.
Trespass claims are tort claims. Birchler v. Castello Land Co., 133 Wn.2d
106, 115, 942 P.2d 968 (1997). And “a tort claim for damage to property is
assignable under the law of this state.” Cooper v. Runnels, 48 Wn.2d 108, 109,
291 P.2d 657 (1955); see also Carlile v. Harbour Homes, Inc., 147 Wn. App. 193,
207, 194 P.3d 280 (2008) (“The traditional test for whether a cause of action is
6 No. 79613-5-I/7
assignable is whether the claim would survive to the personal representative of
the assignor upon death. If it would, the cause of action is assignable.”
(footnotes omitted), review granted and dismissed, 166 Wn.2d 1015 (2009));
RCW 11.48.010 (providing that personal representative “may institute suit . . . for
trespass of any kind or character.”). Furthermore, “[n]o particular words of art are
required to create a valid and binding assignment.” Carlile, 147 Wn. App. at 208.
Instead, “[a]ny language showing the owner’s intent to transfer and invest
property in the assignee is sufficient.” Carlile, 147 Wn. App. at 208.
Here, the plain language of the Assignment Agreement clearly evinces
Trillium’s intent to assign its trespass claims to the Robertsons. Furthermore,
neither JYD nor Janicki contends that trespass claims cannot, as a general
matter, be assigned. Instead, relying on the doctrine of merger and on the
REPSA’s “as is” clause, they challenge the validity of the Assignment
Agreement. But as further discussed below, neither of these challenges is
persuasive, and the trial court erred by summarily dismissing the Robertsons’
claims.
Merger
JYD and Janicki first contend that the Assignment Agreement merged into
the Deed, i.e., that upon execution of the Deed, which did not itself include an
assignment of Trillium’s trespass claims, the Assignment Agreement was no
longer independently enforceable. We disagree.
“The doctrine of merger is founded on the parties’ privilege to change the
terms of their contract at any time prior to performance.” Barber v. Peringer, 75
7 No. 79613-5-I/8
Wn. App. 248, 251, 877 P.2d 223 (1994). “Execution, delivery, and acceptance
of the deed becomes the final expression of the parties’ contract and therefore
subsumes all prior agreements.” Barber, 75 Wn. App. at 251. The merger
doctrine thus provides that “[i]n general, the provisions of a real estate purchase
and sales agreement merge into the deed” and are no longer enforceable.
Barber, 75 Wn. App. at 251.
The merger doctrine is, however, subject to exceptions. For example, it
does not apply to “actions based on fraud or mistake.” Brown v. Johnson, 109
Wn. App. 56, 60, 34 P.3d 1233 (2001). It “also does not apply where terms of a
purchase and sale agreement are not contained in or performed by the execution
and delivery of the deed, are not inconsistent with the deed, and are independent
of the obligation to convey.” Brown, 109 Wn. App. at 60. “Whether a [provision
of a real estate purchase and sale agreement] merges into a deed depends on
the parties’ intent.” Failes v. Lichten, 109 Wn. App. 550, 554, 37 P.3d 301
(2001). Here, the only reasonable conclusion from the record is that the parties
intended for Trillium’s assignment of its trespass claims not to merge into the
Deed.
Black v. Evergreen Land Developers, Inc., 75 Wn.2d 241, 450 P.2d 470
(1969), is instructive. The dispute in Black involved two plots of land in
Somerset, a hillside development east of Lake Washington. Black, 75 Wn.2d at
242. Plaintiff William Black and his wife purchased a home on lot 72 in 1962
based, in part, on the selling broker’s oral guarantee that their view of Lake
Washington would never be impaired. Black, 75 Wn.2d at 242-43. Neither the
8 No. 79613-5-I/9
parties’ purchase agreement nor the deed conveying lot 72 to the Blacks
contained such a guarantee. Instead, the purchase agreement contained an
integration clause stating, “‘There are no verbal or other agreements which
modify or affect this agreement,’” and the deed “contain[ed] the simple clause
that the identified property is ‘Subject to rights, restrictions, easements and
covenants of record, if any.’” Black, 75 Wn.2d at 243.
In 1964, the lot situated downhill and to the west (i.e., lakeward) of the
Black property was purchased by the Avann family. Black, 75 Wn.2d at 242.
When it became clear that the house the Avanns were building would impair the
Blacks’ view of Lake Washington, the Blacks sued the sellers. Black, 75 Wn.2d
at 246, 249. The trial court resolved the case against the Blacks, including by
determining that “all statements, written and oral, made by or on behalf of any of
the defendants to the [Blacks] with respect to the view from lot 72 . . . were
merged in the [purchase] agreement or the deed.” Black, 75 Wn.2d at 247-48.
The Blacks appealed, and the Supreme Court concluded that merger did
not apply. Black, 75 Wn.2d at 251. In doing so, the court observed that the deed
for the Blacks’ lot contained only a simple clause stating that it was “[s]ubject to
rights, restrictions, easements and covenants of record.” Black, 75 Wn.2d at
249. In other words, the deed did not plainly express the parties’ intent with
regard to merger of the oral covenant that the Blacks’ view of Lake Washington
would not be impaired. Black, 75 Wn.2d at 249. But the court also observed that
the oral view covenant was not inconsistent with the deed. Black, 75 Wn.2d at
249. The court also stated, “[W]e [do not] find that there was any intention on the
9 No. 79613-5-I/10
part of either party to surrender this covenant by merger—the evidence is entirely
to the contrary.” Black, 75 Wn.2d at 249. The court noted, for example, that
throughout the construction of the Avann house, the selling broker continued to
reassure the Blacks that their view would not be impaired, and that “the
defendants affirmatively demonstrated the existence of this oral covenant on
several occasions by using a crossbar to show the [Blacks] how high the Avann
roof could be without impairing their view.” Black, 75 Wn.2d at 249-50. Indeed,
the court ultimately concluded that the evidence confirming the view covenant’s
existence was so “overwhelming” that it declined even to enforce the express
integration clause in the purchase agreement. Black, 75 Wn.2d at 250; see also
Black, 75 Wn.2d at 251 (“To now hold that the ‘boilerplate’ at the conclusion of
the . . . agreement would vitiate the manifest understanding of the parties as
evidenced by this record would amount to a constructive fraud practiced by the
defendants upon the [Blacks].”).
Here, as in Black, nothing in the Deed itself plainly expresses the parties’
intent with regard to Trillium’s assignment of its trespass claims to the
Robertsons. But as in Black, it is more than clear that the parties did not intend
for Trillium’s assignment to merge into the Deed. Specifically, the REPSA
expressly set forth Trillium’s obligation to assign those claims as an entirely
separate obligation from Trillium’s obligation to convey. The REPSA also
contemplated that a separate agreement would be used for the assignment, and
consistent with the REPSA, the parties later memorialized the assignment by
entering into the Assignment Agreement. In other words, Trillium’s obligation to
10 No. 79613-5-I/11
assign its trespass claims, like the seller’s view covenant in Black, was not
inconsistent with the Deed and was plainly intended to be independent of
Trillium’s obligation to convey the 8746 Property. See Brown, 109 Wn. App. at
60 (merger does not apply “where terms of a purchase and sale agreement are
not contained in or performed by the execution and delivery of the deed, are not
inconsistent with the deed, and are independent of the obligation to convey”).
Therefore, the merger doctrine does not apply here.2
Janicki and JYD disagree. They contend that by its plain terms, the Deed
extinguished any trespass claims. They point out that the Deed itself states,
“See Attached Exhibit ‘B’ for Exceptions.” They also point out that exhibit B to
the Deed begins with the language “SUBJECT TO:” and then lists, among other
items:
Any rights, interests or claims which may exist or arise by reason of the following facts shown by Survey of the land by NORTHWEST SURVEYING AND GPS, INC., dated July 21, 2014, Job No. 14- 157, as follows:
A. Service pole and line thereto on the West side of Parcel A; B. Gravel access roads through Parcel A and along the West side of Parcel D; C. Culvert crossing on the East and South side of Parcel A; D. Ditches through Parcels A, C and D; and E. Overhead phone line along the West line of Parcels B and C[.]
2 In October 2018, after Janicki moved for summary judgment based on the merger doctrine, Trillium executed a “Confirming Assignment and Assumption of Claims” in which it again assigned certain trespass claims to the Robertsons “[t]o the extent not already assigned in the Assignment [Agreement].” Because Trillium and the Robertsons’ intent is very clear from the REPSA and the Assignment Agreement alone, we do not rely on the confirming assignment. 11 No. 79613-5-I/12
(Emphasis added.) Janicki and JYD contend that because exhibit B to the Deed
expressly referenced culvert crossings and ditches, any rights that the
Robertsons had to bring claims arising out of those conditions were extinguished
by the Deed. But this argument is unpersuasive because it rests on one or more
of three premises, each of which is flawed.
First, JYD and Janicki’s argument assumes that exhibit B was intended to
list exceptions from the property conveyed by Trillium to the Robertsons, rather
than mere limitations on the warranties that inhere in a statutory warranty deed.3
That is, JYD and Janicki argue, in essence, that the Deed carves out the very
claims that the Assignment Agreement purports to transfer and, thus, the two
documents are inconsistent such that no exception from merger can apply. But
the Deed’s use of the term “exceptions” to describe exhibit B creates, at best,
some ambiguity as to whether each item listed therein is an exception in the true
sense, or merely a warranty limitation.4 And as discussed, the overwhelming
3 Under RCW 64.04.030, a statutory warranty deed, once executed, “shall be deemed and held a conveyance in fee simple to the grantee, his or her heirs and assigns, with covenants on the part of the grantor: (1) That at the time of the making and delivery of such deed he or she was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all encumbrances; and (3) that he or she warrants to the grantee, his or her heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same, and such covenants shall be obligatory upon any grantor, his or her heirs and personal representatives, as fully and with like effect as if written at full length in such deed.” 4 “An exception in a deed is a clause that withdraws from its operation
some part of the thing granted and which otherwise has passed to the grantee under the general description.” Harris v. Ski Park Farms, Inc., 62 Wn. App. 371, 376, 814 P.2d 684 (1991), aff’d, 120 Wn.2d 727, 844 P.2d 1006 (1993); see also 12 No. 79613-5-I/13
extrinsic evidence, and in particular the evidence of Trillium’s independent
obligation to assign its trespass claims via a separate assignment agreement,
leads to only one reasonable conclusion: The “exception” on which Janicki and
JYD rely is not an exception from conveyance, but merely a limitation on
warranties that precludes the Robertsons from bringing a breach of warranty
claim against Trillium based on matters disclosed in the survey. See Sunnyside
Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (court
may look to extrinsic evidence to interpret ambiguous deed). Thus, the Deed
and the Assignment Agreement are not inconsistent.
Second, Janicki points out that the REPSA was dated June 11, 2014,
while the Deed was not executed until July 11, 2014, a month later. Janicki then
asserts that Trillium’s assignment of its claims was part of the REPSA and, thus,
predated the Deed by a month. But although the REPSA included an obligation
to assign as well as an exhibit showing the form the assignment would take, the
assignment itself was not made until July 23, 2014, after the Deed was executed.
Thus, even assuming our merger analysis would change if the Assignment
Agreement predated the Deed, it did not.
Third and finally, Janicki asserts in passing that trespass claims can be
assigned only by deed. But it does not cite any authority to support that
9 THOMPSON ON REAL PROPERTY § 82.14, at 736 (3d Thomas ed. 2011) (observing, with regard to the drafting of title covenants, that “[t]he use of the phrases ‘subject to’ or ‘except’ must be approached with caution” and that “the ‘except’ clause can create ambiguities as to whether the ‘except’ language creates a technical exception or whether it is merely a limitation on the title warranties.”). 13 No. 79613-5-I/14
proposition. Therefore, Janicki’s assertion fails. See DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are
cited in support of a proposition, the court is not required to search out
authorities, but may assume that counsel, after diligent search, has found
none.”).
We hold as a matter of law that Trillium’s assignment of its trespass claims
to the Robertsons did not merge into the Deed. See Pelly v. Panasyuk, 2 Wn.
App. 2d 848, 864, 413 P.3d 619 (2018) (“The rules of contract interpretation apply
to interpretation of . . . a deed”); Marshall v. Thurston County, 165 Wn. App. 346,
351, 267 P.3d 491 (2011) (“Contract interpretation is a matter of law . . . when . . .
the extrinsic evidence permits only one reasonable interpretation.”).
“As Is” Clause
Janicki and JYD next argue that the Robertsons’ claims against them were
barred by the REPSA’s “as is” clause. We disagree.
“An ‘as is’ clause generally means that the buyer is purchasing property in
its present state or condition.” Olmsted v. Mulder, 72 Wn. App. 169, 176, 863
P.2d 1355 (1993). “The term implies that the property is taken with whatever
faults it may possess and that the seller or lessor is released of any obligation to
reimburse the purchaser for losses or damages that result from the condition of
the property.” Olmsted, 72 Wn. App. at 176 (emphasis added). In other words,
while an “as is” clause may bar the buyer from suing the seller, it does not limit
the buyer’s ability to sue third parties. Therefore, the “as is” clause was not a
proper basis for dismissal of the Robertsons’ claims.
14 No. 79613-5-I/15
Janicki and JYD disagree. While JYD does not cite any authority, Janicki
relies on Warner v. Design & Build Homes, Inc., 128 Wn. App. 34, 114 P.3d 664
(2005). But that reliance is misplaced.
In Warner, Curtis and Ana Warner entered into a purchase and sale
agreement with Design and Build Homes Inc. (Design) for the purchase of a new
home. 128 Wn. App. at 36. The agreement was subject to the Warners’
approval of a general building inspection report. Warner, 128 Wn. App. at 39.
Additionally, under the agreement, the Warners agreed to purchase the house
“as is” if Design repaired any conditions identified in the report that the Warners
wanted fixed. Warner, 128 Wn. App. at 39.
The Warners had the home inspected, and the inspection report flagged
issues related to bulging and cracking in the exterior stucco wall, as well as
potential water leaking into the stucco. Warner, 128 Wn. App. at 37. Although
the inspector recommended further evaluations, the Warners did not conduct
them and instead requested only that the conditions in the inspection report be
fixed. Warner, 128 Wn. App. at 39. Design honored the Warners’ request, thus
triggering the agreement’s “as is” clause. Warner, 128 Wn. App. at 39.
The Warners later began noticing leaks and water damage, which a
professional stucco consultant concluded was due to defective stucco
installation. Warner, 128 Wn. App. at 37. The Warners sued Design, arguing
that it had breached the implied warranty of habitability. Warner, 128 Wn. App.
at 39. After the trial court granted summary judgment in favor of Design, the
Warners appealed. Warner, 128 Wn. App. at 38.
15 No. 79613-5-I/16
On appeal, Division Two observed that “‘[u]nless the circumstances
indicate otherwise, all implied warranties are excluded by expressions like “as is,”
“with all faults” or other language which in common understanding calls the
buyer’s attention to the exclusion of warranties and makes plain that there is no
implied warranty.’” Warner, 128 Wn. App. at 40 (emphasis omitted) (quoting
RCW 62A.2-316(3)(a)). The court also observed that the Warners did not assert
that they were unaware of the “as is” clause or otherwise at a negotiating
disadvantage. Warner, 128 Wn. App. at 40. Finally, the court observed that the
Warners were told about defects in the stucco and advised to follow up, but
decided not to do so. Warner, 128 Wn. App. at 41. The court thus concluded
that the trial court did not err by giving effect to the “as is” clause and summarily
dismissing the Warners’ breach of warranty claim. Warner, 128 Wn. App. at 41.
In short, the Warner court held that an “as is” clause in a contract between
a seller and a buyer precluded the buyer, who was not in an unequal bargaining
position and who was aware of a potential defect before agreeing to the “as is”
language, from suing the seller for breach of an implied warranty. But here,
unlike in Warner, the Robertsons are not suing their seller for breach of an
implied warranty. Instead, the Robertsons are suing a third party for trespass.
Thus, Warner is not persuasive.
De Minimis Rule
As a final matter, while JYD contends that any timber trespass claims are,
like the Robertsons’ other trespass claims, barred by the doctrine of merger,
Janicki does not. Instead, Janicki argues that the Robertsons’ timber trespass
16 No. 79613-5-I/17
claims were properly dismissed under the maxim “de minimis non curat lex,” or
the “de minimis rule,” which provides that “‘the law takes no notice of trivial
things.’” Arnold v. Melani, 75 Wn.2d 143, 148, 449 P.2d 800, 450 P.2d 815
(1968); Bartel v. Emp’t Sec. Dep’t, 60 Wn.2d 709, 714, 375 P.2d 154 (1962).
Janicki points out that its principal testified that the value of the timber was less
than $1,000 and that even the Robertsons acknowledged, in an email, that “[t]he
amount of timber taken is small.” But competing evidence in the record indicates
that the value of the timber was $4,212.87, a nontrivial amount and, in any event,
“small” is not the same as trivial. Therefore, the de minimis rule does not provide
a basis to affirm the trial court’s dismissal of the Robertsons’ timber trespass
claim. Cf. Guay v. Wash. Nat. Gas Co., 62 Wn.2d 473, 478, 383 P.2d 296
(1963) (relying on the de minimis rule and declining to award treble damages
where the trial court properly awarded only $1 in nominal damages as a basis for
allowing costs “for an otherwise harmless trespass”).
DENIAL OF THE ROBERTSONS’ SUMMARY JUDGMENT MOTIONS
The Robertsons contend that the trial court erred by denying their motions
for summary judgment. Meanwhile, JYD argues that the trial court’s denial of the
Robertsons’ motions is not properly before this court on appeal. We agree with
Under RAP 2.2(a), “[u]nless otherwise prohibited by statute or court rule”
and subject to exceptions that do not apply here, a party may appeal from only
certain, enumerated superior court decisions. Orders denying summary
judgment are not listed in RAP 2.2 and generally are not appealable. See Sea-
17 No. 79613-5-I/18
Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d 800,
801-02, 699 P.2d 217 (1985).
Here, the Robertsons cite to no statute or other court rule to support our
review of the trial court’s orders denying their motions for summary judgment, nor
do they argue that discretionary review is warranted. Cf. Sunbreaker Condo.
Ass’n v. Travelers Ins. Co., 79 Wn. App. 368, 380, 901 P.2d 1079 (1995) (“When
the trial court denies summary judgment on one issue, but enters a final
judgment on a distinct, dispositive issue, a party seeking review of the summary
judgment determination must establish that discretionary review is warranted.”).
Furthermore, because we are reversing the trial court’s dismissal of the
Robertsons’ claims, the issues raised in the Robertsons’ motions remain pending
trial and can be reviewed once a final judgment is entered. Therefore, we
decline to review the trial court’s orders denying the Robertsons’ motions for
summary judgment.
The Robertsons contend that their appeal from the trial court’s “final
judgment” dismissing the entire case “trigger[ed] jurisdiction over all interlocutory
orders.” But the Robertsons point to no court rule or statute that supports this
proposition, and the two cases they cite do not support it. Specifically, in
Gardner v. First Heritage Bank, Division Two explained, in an admittedly
confusing footnote, that it would, under the circumstances of that case, review an
oral ruling granting the defendant’s motion for summary judgment even though
the plaintiff did not assign error to that oral ruling until his opening brief. 175 Wn.
App. 650, 658 & n.15, 303 P.3d 1065 (2013). And in DGHI, Enterprises v. Pacific
18 No. 79613-5-I/19
Cities, Inc., the Supreme Court declined to review a denial of summary judgment,
observing that the order was interlocutory in nature and that the issue with regard
to which summary judgment was sought could be reviewed after trial in an
appeal from the final judgment. 137 Wn.2d 933, 949, 977 P.2d 1231 (1999).
Neither of these cases supports the Robertsons’ contention that the trial court’s
orders denying the Robertsons’ motions for summary judgment are appealable at
this juncture.
CONCLUSION
We hold, as matters of law, that (1) Trillium’s assignment of its trespass
claims, as described in the Assignment Agreement, did not merge into the Deed,
(2) the REPSA’s “as is” clause did not bar the Robertsons from pursuing their
claims against JYD and Janicki, and (3) the de minimis rule does not apply to the
Robertsons’ timber trespass claims. Additionally, because merger, the “as is”
clause, and the de minimis rule are the only arguments advanced by JYD and
Janicki to challenge the Robertsons’ standing to bring their claims, we hold that
the trial court erred by dismissing the Robertsons’ claims.
19 No. 79613-5-I/20
We reverse and remand for further proceedings.
WE CONCUR: