FILED FEBRUARY 27, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
KAYLYNN LAREAU, ) ) No. 39738-6-III Petitioner, ) ) v. ) ) THOMAS GREENE and MARY ) UNPUBLISHED OPINION HENDERSON-GREENE, individually ) and as husband and wife and their marital ) community; GORDON SCOTT ) BRAKER, an individual, ) ) Respondents. )
STAAB, J. — Kaylenn Lareau was injured after falling down a stairway in a rental
home where she was living. Although she did not sign the lease agreement, she sued the
landlords, Thomas Greene and Mary Henderson-Greene (Greenes), for negligence
claiming the stairway was a dangerous condition and violated the implied warranty of
habitability. On the eve of trial, the court granted the Greenes’ motion for judgment as a
matter of law, concluding that the Greenes did not owe Lareau a duty to inspect or repair
the stairway, and dismissed the case with prejudice.
We reverse. Under the facts of this case, the Greenes owed Lareau a duty of care
under the implied warranty of habitability. Furthermore, Lareau presented facts that, No. 39738-6-III Lareau v Greene
when viewed in the light most favorable to her, created genuine issues of material fact as
to whether the stairs were dangerous and whether the Greenes had notice of the
condition. Thus, judgment as a matter of law was improper. We decline to award
attorney fees at this stage without prejudice as to whether they can be awarded following
resolution of the case.
BACKGROUND
Since the trial court dismissed Lareau’s implied warranty of habitability claim on
the Greenes’ CR 50 motion for judgment as a matter of law using a summary judgment
standard, the following facts are set forth in a light most favorable to Lareau.
The Greenes owned a rental house in Spokane from 1990 to 2019. The house was
built in 1909. The Greenes never resided in the house. The house consisted of a main
floor with a loft and a basement. A stairway connected the main floor to the basement,
where there was a washer and dryer, a living area, and storage. The stairway was not in
compliance with the current building codes in-part because its risers were too tall, its
treads were exceptionally narrow, its risers and treads varied excessively, and its treads
sloped downward.
The Greenes rented the house to Gordon Scott Braker for at least a decade. The
relevant lease agreement began in September 2016. The lease contemplated that the
house would be occupied by “Scott Braker + Roomate [sic],” and the Greenes allowed
Braker to have additional roommates for durations less than the one-year lease term.
2 No. 39738-6-III Lareau v Greene
The Greenes and Braker did not strictly follow the lease agreement. For instance,
the Greenes designated Braker “as the resident manager of the house for purposes of
repairing and maintaining the house, choosing who lived there, and collecting and paying
rent to the Greenes.” Clerk’s Papers (CP) at 81. Braker also performed work on the
house under the direction and supervision of the Greenes. The Greenes compensated
Braker for his work on the house in the form of monthly rent reductions.
In July 2016, Kaylynn Lareau moved into the house as Braker’s roommate without
signing the lease agreement. She paid monthly rent and a portion of the utility costs to
Braker.
At least five months before Lareau moved in, Braker removed the only handrail
from the stairway to the basement as part of the ongoing maintenance work he performed
for the Greenes. After she moved in, Lareau made several comments to Braker about the
stairway being dangerous and asked him to install the handrail.
On December 2, 2016, Lareau, who was then pregnant, lost her footing at the top
of the stairway and fell to the bottom, hitting the floor and a concrete wall. When she
fell, Lareau extended her arms to absorb the impact of the fall and protect her baby. At
the hospital, x-rays revealed that Lareau fractured her left elbow, and had a possible right
elbow fracture and possible placental hematoma.
3 No. 39738-6-III Lareau v Greene
Procedure
In 2019, Lareau sued the Greenes for negligence, arguing they breached the duties
they owed to her under Washington’s Residential Landlord-Tenant Act of 1973 (RLTA),
ch. 59.18 RCW and the common law implied warranty of habitability, by failing to
inspect and repair the dangerous stairway, which caused Lareau’s injuries and resulted in
damages.1
The parties filed competing motions for summary judgment, which were largely
denied. For the most part, these motions were denied.
On the morning of trial, the Greenes filed a CR 50 motion for judgment as a
matter of law, contending that they owed no duty to Lareau. To support their argument,
the Greenes relied on Saralegui Blanco v. Gonzalez Sandoval, 197 Wn.2d 553, 485 P.3d
326 (2021), which held that to establish the existence of a duty in a premises liability
claim, the plaintiff must show that the defendant possessed the property. The Greenes
argued that because the lease transferred possession and control of the house to Braker,
they had no legal duty to inspect or repair the stairway under Saralegui.
Later that day, the trial court informed the parties via email that it intended to rule
on the Greenes CR 50 motion before any other pretrial motions, and set a briefing
schedule and hearing for the motion. In response to the court’s email, Lareau filed a
1 Lareau originally named Braker as a co-defendant. However, they later entered a stipulated order of dismissal.
4 No. 39738-6-III Lareau v Greene
motion to reconsider the denial of her motion for partial summary judgment on the issue
of whether the Greenes had a duty to inspect and repair. Ultimately, the court denied
Lareau’s motion for summary judgment and granted the Greenes’ CR 50 motion “from a
summary judgment perspective.” Rep. of Proc. (RP) (Apr. 17, 2023) at 28. The court
later entered its written judgment dismissing Lareau’s claims with prejudice.
Lareau timely appeals.
ANALYSIS
1. CR 50 PROCEDURE
As a preliminary matter, we hold that the trial court abused its discretion by
considering the Greenes’ CR 50 before trial.
“Under CR 50(a)(1), a motion for judgment as a matter of law may be brought
[only] after a party has been fully heard with respect to an issue and there is no legally
sufficient basis for a reasonable jury to find in favor of the [opposing] party with respect
to that issue.” Carlson v. Lake Chelan Cmty. Hosp., 116 Wn. App. 718, 729, 75 P.3d 533
(2003). Typically, a CR 50 motion is brought “[d]uring trial, . . . at the end of the
plaintiff’s case-in-chief, or at the end of all [the] evidence.” Smith v. Fourre, 71 Wn.
App. 304, 307 n.7, 858 P.2d 276 (1993). This is because, “a plaintiff must be given the
opportunity to present not just part, but all, of his or her evidence before the trial court
rules on the sufficiency of that evidence.” Id. at 307.
5 No. 39738-6-III Lareau v Greene
In this case, the trial court granted the Greenes’ CR 50 motion “from a summary
judgment perspective” before trial began and before Lareau had a chance to present her
evidence. RP (Apr. 17, 2023) at 26, 28-29. This was an abuse of discretion.
Despite this procedural irregularity, at the parties’ request, we address and decide
the substantive legal issues presented in this appeal.
2. IMPLIED WARRANTY OF HABITABILITY
Our review of a trial court’s decision under either CR 50 or CR 56 is de novo.
Davis v. Microsoft Corp., 149 Wn.2d 521, 530-31, 70 P.3d 126 (2003); Martin v.
Gonzaga Univ., 191 Wn.2d 712, 722, 425 P.3d 837 (2018). Under either rule, we view
the evidence in a light most favorable to the nonmoving party and will affirm judgment
only if there is no genuine issue of material fact and judgment is proper as a matter of
law. CR 56(c); Davis, 149 Wn.2d at 531.
A. Existence of Duty Under Implied Warranty of Habitability
In our State’s early history, courts traditionally followed the doctrine of “caveat
emptor,” or “let the buyer beware,” which essentially provided that “tenant[s] rent[ ]
property at their own risk,” and accordingly that landlords could not be “liable for any
injuries . . . tenant[s] suffer[ed] for having taken [the] risk” of renting property. Gerlach
v. Cove Apts., LLC, 196 Wn.2d 111, 130, 471 P.3d 181 (2020); see, e.g., Teglo v. Porter,
65 Wn.2d 772, 773, 399 P.2d 519 (1965). Under this doctrine, there was “no implied
6 No. 39738-6-III Lareau v Greene
warranty or covenant on the landlord’s part that the premises [were] safe or fit for the
purpose intended.” Teglo, 65 Wn.2d at 773.
Our Supreme Court upended this doctrine in Foisy v. Wyman, 83 Wn.2d 22, 28,
515 P.2d 160 (1973), where the Court ruled that “in all contracts for the renting of
premises, oral or written, there is an implied warranty of habitability.” By recognizing
the implied warranty of habitability, the Court “ʻdiscarded the very legal foundation and
justification for the landlord’s immunity in tort for injuries to the tenant or third
persons.’” Gerlach, 196 Wn.2d at 132 (quoting Sargent v. Ross, 113 N.H. 388, 397, 308
A.2d 528 (1973)).
In 2001, this court built on Foisy’s holding by adopting the Restatement (Second)
of Property: Landlord & Tenant § 17.6 (Am. L. Inst. 1977), which states:
A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of: (1) an implied warranty of habitability; or (2) a duty created by statute or administrative regulation.[2]
Lian v. Stalick, 106 Wn. App. 811, 821-22, 25 P.3d 467 (2001) (Lian I). Following Lian
I and Foisy, this court has repeatedly held that landlords owe a duty to their tenants under
2 The Gerlach court did not adopt the theory of liability under subsection (2) of Restatement § 17.6 because it is based on a theory of negligence per se, which has been largely abandoned in Washington. Gerlach, 196 Wn.2d at 134.
7 No. 39738-6-III Lareau v Greene
the “implied warranty of habitability” to exercise reasonable care to repair dangerous
conditions on the leased property. See, e.g., Lian v. Stalick, 115 Wn. App. 590, 595, 62
P.3d 933 (2003) (Lian II); Martini v. Post, 178 Wn. App. 153, 168-71, 313 P.3d 473
(2013).
More recently, our Supreme Court clarified that the duty of a landlord under the
“common law implied warranty of habitability” extends not just to tenants, but also to
their guests. Gerlach, 196 Wn.2d at 129-30. In Gerlach the court expressly adopted a
cause of action for tenant’s guests under the implied warranty of habitability as set forth
in the Restatement § 17.6, which provides that a “ʻlandlord is subject to liability . . . to
the tenant and others upon the leased property with the consent of the tenant’” or his
subtenant. Gerlach, 196 Wn.2d at 127-28 (quoting Restatement § 17.6).
The Greenes contend that they did not owe a duty to Lareau under the implied
warranty of habitability because Lareau was not their tenant. They point to evidence that
she did not sign the lease and suggest that, if anything, she was Braker’s tenant. The
Greenes do not dispute that Lareau was on the property with the consent of Braker.
Under Gerlach’s expansion of the implied warranty of habitability to guests and others
upon the leased property with the consent of the tenant, this dispute is immaterial for
8 No. 39738-6-III Lareau v Greene
purposes of determining whether a duty under the implied warranty of habitability
exists.3 Id.
“[W]hether a landlord is liable to a tenant’s guest for injuries caused by the
landlord’s breach of the implied warranty of habitability is a straightforward question of
common law negligence.” Id. at 132. A negligence cause of action “requires the plaintiff
to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting
injury, and (4) a proximate cause between the breach and the injury.” Tincani v. Inland
Empire Zoological Soc’y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994).
The Greenes raise several arguments as to why Gerlach should not control. First,
they contend that Gerlach lacks precedence because it was not unanimous. This
argument fails because we are bound to follow majority opinions of our Supreme Court.
State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227 (1984). A majority of justices
joined the opinion in Gerlach; thus, it binds this court. See Gerlach, 196 Wn.2d at 136.
The Greenes also argue the Gerlach’s discussion of the implied warranty of
habitability was dicta. We disagree. “ʻDicta’ is ‘language [that is] [un]necessary to the
decision in a particular case.’” Messersmith v. Town of Rockford, 26 Wn. App. 2d 699,
704, 529 P.3d 427 (2023) (internal quotation marks omitted) (quoting ADCI Corp. v.
3 We note that whether Lareau was a tenant of the Greenes, or a third party beneficiary of the lease between the Greenes and Braker may be an issue if Lareau later seeks attorney fees under the lease.
9 No. 39738-6-III Lareau v Greene
Nguyen, 16 Wn. App. 2d 77, 86, 479 P.3d 1175 (2021)). In Gerlach, adopting
Restatement § 17.6 was necessary because the jury found for the plaintiff using “a verdict
form that did not distinguish between negligence premised on [the defendant’s] common
law duties and negligence premised on [the defendant’s] duties under the RLTA.”
Gerlach, 196 Wn.2d at 118, 135. The majority rejected the dissent’s argument that the
Court’s expanded analysis of the implied warranty of habitability was dicta. See id. at
136 (Gordon McCloud, J. dissenting in part). Ultimately, the Gerlach court concluded
that the implied warranty of habitability supported the jury’s verdict. Id. at 135-36.
The Greenes also cite to Phillips v. Greco, 7 Wn. App. 2d 1, 433 P.3d 509 (2018)
and Pruitt v. Savage, 128 Wn. App. 327, 115 P.3d 1000 (2005) to argue they owed no
duty to Lareau. However, these cases predate Gerlach. In both cases, the plaintiffs could
not bring a claim for breach of the implied warranty of habitability against the landlords
because Washington courts had not yet fully adopted Restatement § 17.6, which extends
the claim to anyone on the property with the tenant’s consent, not just the tenant.
Phillips, 7 Wn. App. 2d at 7 (“Phillips does not cite to any Washington authority that has
extended the implied warranty of habitability of section 17.6 to persons other than
tenants.”); Pruitt, 128 Wn. App. at 331 (“[T]he parties do not cite, and we have not been
able to find, a Washington case that extends [implied warranty of habitability claims] to
persons not the tenant.”).
10 No. 39738-6-III Lareau v Greene
Next, the Greenes argue that Gerlach did not address the issue presented here:
whether the Greenes had a duty to repair a condition allegedly made dangerous by
another tenant. While Gerlach did not address this particular issue, its holding is still
applicable and nothing in the decision suggests that the implied warranty of habitability
would not apply under these circumstances. The Greenes do not cite any authority
suggesting that Braker’s removal of the handrail absolves them of liability under the
implied warranty of habitability. Restatement § 17.6 imposes no such limitation and
applies to dangerous conditions that develop after a tenant takes possession without
regard to the cause of the condition. We see no reason that landlords should be immune
from liability if they have actual or constructive knowledge of dangerous conditions that
violate the implied warranty of habitability, regardless of the cause of the conditions.
Moreover, the evidence here is sufficient to raise a genuine issue of material fact as to
whether Braker was acting as the Greenes’ agent when he removed the handrail and when
Lareau asked him to replace the handrail.
The Greenes argue, as they did below, that in any premises liability case the
plaintiff must first establish that the defendants were in possession of the property. The
Greenes rely primarily on Saralegui Blanco, 197 Wn.2d at 554 to argue that in order to
establish a duty in a premises liability claim, the plaintiff must show that the defendant
possessed the property, and that a landlord transfers possession and control to the tenants.
11 No. 39738-6-III Lareau v Greene
The Greenes asserted that possession of the house transferred to Braker when he signed
the lease and that, therefore, they owed no legal duty to inspect or repair the stairway.
Saralegui is inapposite because it addressed a duty based on a premises liability
theory, and the court expressly declined to reach the plaintiff’s implied warranty of
habitability theory of liability. Saralegui, 197 Wn.2d at 557 n.2. Premises liability
claims are distinct from implied warranty of habitability claims. See Phillips, 7 Wn. App.
2d at 6-7 (explaining that cases involving implied warranty of habitability claims “are
landlord versus tenant cases decided under property law principles, not a licensee versus
possessor case decided under tort law principles.”). Premises liability claims depend on
possession and control of the property and the status of the injured party, whereas implied
warranty of habitability claims arise from the contract between the landlord and tenant.
See Phillips, 7 Wn. App. 2d at 5-7; see also Foisy, 83 Wn.2d at 26; compare
RESTATEMENT (SECOND) OF PROPERTY § 17.6 with RESTATEMENT (SECOND) OF TORTS
§§ 342, 343 (AM. L. INST. 1965).
Here, the trial court erred in concluding that Lareau failed to establish that the
Greenes owed her a duty. As Braker’s landlord, the Greenes owed a common law duty
under the implied warranty of habitability to Braker and any guests or subtenants of
12 No. 39738-6-III Lareau v Greene
B. Issues of Material Fact
The Greenes also argue that, even if they owed a duty under the implied warranty
of habitability, Lareau failed to produce evidence sufficient to create a genuine issue of
material fact that the stairs were dangerous and the Greenes had notice of the dangerous
condition. We disagree.
While the existence of a duty is a question of law, breach and causation are
typically questions of fact for the jury. Briggs v. Pacificorp, 120 Wn. App. 319, 322, 85
P.3d 369 (2003). “Once it is determined that a legal duty exists, it is generally the jury’s
function to decide the foreseeable range of danger, thus limiting the scope of that duty.”
Id.
A plaintiff alleging negligence under the implied warranty of habitability
negligence must show:
(1) that the condition was dangerous, (2) that the landlord was aware of the condition or had a reasonable opportunity to discover the condition and failed to exercise ordinary care to repair the condition, and (3) that the existence of the condition was a violation of an implied warranty of habitability.
Lian II, 115 Wn. App. at 595.
Generally, “the implied warranty of habitability . . . applies whenever the defects
in a particular dwelling render it uninhabitable or pose an actual or potential safety hazard
to its occupants.” Lian I, 106 Wn. App. at 818 (citation omitted).
13 No. 39738-6-III Lareau v Greene
Lareau presented evidence to show an actual or potential safety hazard to the
occupants. Lareau submitted an expert report to the trial court that identified multiple
safety hazards with the stairway. The expert found the stairway to be “unreasonably
dangerous” because its risers were too tall, its treads were exceptionally narrow, its risers
and treads varied excessively, its treads sloped downward, and the handrail was missing.
Further, the expert explained that the stairway needed handrails on both sides of the stairs
to make the stairway safe.
During discovery, Braker admitted that the “stairway was a dangerous condition . . .
because of the narrow tread depths, tall riser heights, and steepness of the stairs.” CP at 82.
Braker also admitted that the lack of handrails on the stairway increased the danger and
risk to anyone who lost their footing on the stairs. In his deposition, Braker testified that he
told “all the guests, regardless if the handrail is there or not, that those stairs are very
steep.” CP at 298. Additionally, Lareau presented Mr. Greene’s admission that the
stairway should have had a handrail at the time of Lareau’s fall.
The Greenes contend they had no duty to redesign or rebuild the stairway because
it was compliant with the code that existed when it was built. The Greenes point to their
expert’s report stating that despite the stairway’s old age, it was exempted from having to
comply with current code. This argument fails. This court has held that a parties’
“attempt to use the building code as a litmus test to confine the types of cases that will
fall under the protection of the implied warranty is inconsistent with [Washington
14 No. 39738-6-III Lareau v Greene
Supreme Court precedent holding] that there are no brightline tests” for determining
which defects are within the realm of violating the implied warranty. Westlake View
Condo. Ass’n v. Sixth Ave. View Partners, LLC, 146 Wn. App. 760, 770, 193 P.3d 161
(2008).
Viewing these facts in a light most favorable to Lareau, a genuine issue of material
fact exists regarding the dangerousness of the stairway. See Id. at 771 (“Whether [the
defects alleged by the plaintiff] rise to the level of breaching the implied warranty of
habitability is a question for the jury.”).
The Greenes also contend that there is no evidence that they had notice of the
dangerous condition. A landlord is subject to liability under the implied warranty of
habitability “ʻonly for conditions of which he is aware, or of which he could have known
in the exercise of reasonable care.’” Lian II, 115 Wn. App. at 596 (quoting
RESTATEMENT § 17.6, cmt. c). Stated another way, “in some circumstances a landlord
may be liable under Restatement § 17.6 if he is aware of the condition, has reasonable
opportunity to remedy the condition, and then makes no attempt to remedy the
condition.” Lian II, 115 Wn. App. at 597. This is a notice requirement. Id.
Despite the Greenes’ vehement denial that they did not know about the dangerous
condition of the stairway, Lareau presented evidence that raises a genuine issue of
material fact. Braker admitted in discovery that he believed Mr. Greene knew about the
dangerous stairway. Lareau also declared that Mr. Greene entered the house and went
15 No. 39738-6-III Lareau v Greene
down into the basement at least once while she lived there. Viewing these facts and the
reasonable inferences from them in a light most favorable to Lareau, a material issue of
fact existed as to whether the Greenes had actual knowledge of the stairway’s condition.
Thus, this issue should have gone to the jury.4
Similarly, Lareau also presented facts that, viewed in the light most favorable to
her, raised a genuine issue of material fact as to whether the Greenes had constructive
notice of the stairway’s dangerous condition. A plaintiff can establish constructive notice
of a dangerous condition that violates the implied warranty of habitability in two ways,
which are relevant to this case. First, “ʻ[o]rdinarily, the landlord will be chargeable with
notice of conditions which existed prior to the time that the tenant takes possession.’” Id.
at 596 (quoting RESTATEMENT § 17.6, cmt. c). Second, “ʻ[w]here the landlord is able to
discover the condition by the exercise of reasonable care, he is subject to liability after he
has had a reasonable opportunity to discover the condition and to remedy it.’” Id.
(quoting Restatement § 17.6, cmt. c).
Regarding the second method of establishing constructive notice, Lareau
submitted testimony from Mr. Greene in which he stated that he did not inspect the house
during Braker’s ten-year tenancy and did not step foot inside the house in 2016. Lareau
4 Beyond establishing that the stairs were dangerous, Lareau must also prove that the stairs violated the implied warranty of habitability. RESTATEMENT § 17.6 cmt. e, illus. 1. The Greenes do not challenge Lareau’s evidence on this element and our decision here does not address this element.
16 No. 39738-6-III Lareau v Greene
further declared that she made several comments to Braker about the safety of the stairs
and asked him to install a railing. Additionally, Mr. Greene stated that he relied on
Braker to inform him if there were any issues with the house, which Mr. Greene would
then address.
Viewed in a light most favorable to Lareau, there was a genuine issue of material
fact as to whether the Greenes had constructive notice of the stairway’s condition after
having had a reasonable opportunity to discover and remedy it. See Fredrickson v.
Bertolino's Tacoma, Inc., 131 Wn. App. 183, 189, 127 P.3d 5 (2005) (“Ordinarily, it is a
question of fact for the jury whether, under all of the circumstances, a defective condition
existed long enough so that it would have been discovered by an owner exercising
reasonable care.”).
The trial court erred when it granted summary judgment in favor of the Greenes
after concluding that the Greenes did not owe Lareau a duty under the implied warranty
of habitability. In addition, Lareau produced evidence sufficient to raise a material issue
of fact of each of the disputed elements of her claim.
3. ATTORNEY FEES ON APPEAL
Lareau requests her attorney fees on appeal under RAP 18.1(a) as well as the
attorney fee provision in the lease agreement between the Greenes and Braker, and that
we direct the trial court to include these fees in any final award if she prevails at trial.
The Greenes respond, arguing that Lareau is not entitled to attorney fees because her
17 No. 39738-6-III Lareau v Greene
implied warranty of habitability claim does not arise from a breach of the lease agreement
and she lacks standing to request attorney fees because she is not a party to the lease
agreement.
At this point, we decline to award Lareau her attorney fees on appeal because it
would be premature and there may be issues of fact that need to be decided. See Landis
& Landis Const., LLC v. Nation, 171 Wn. App. 157, 168, 286 P.3d 979 (2012). Our
decision does not preclude Lareau from seeking attorney fees if she prevails at trial, but
we make no decision on whether such fees are authorized.
Reversed and Remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Staab, J.
I CONCUR:
_________________________________ Lawrence-Berrey, C.J.
18 NO. 39738-6-III
COONEY, J. (concurring) — I concur with the majority’s conclusion, but write
separately to accentuate the asperities of review due to the multifarious procedural
abnormalities.
The RAPs are intended to promote the reasoned dispositions of legal issues as the
merits of the case and the interest of justice may require. Rich v. Starczewski, 29 Wn.
App. 244, 250, 628 P.2d 831 (1981); RAP 12.2. Likewise, the RAPs are not designed to
place unjustified financial burdens on the parties. Id. To that end, I agree with the
majority’s decision to resolve the issues presented in this appeal.
On the scheduled first day of trial, April 10, 2023, and after two unsuccessful
attempts to have Kaylynn Lareau’s claim dismissed on summary judgment, Thomas
Greene and Mary Henderson-Greene filed a motion for judgment as a matter of law under
CR 50.1 Ms. Lareau responded to the motion, and filed a motion for reconsideration of
the court’s earlier order that denied her motion for partial summary judgment.
It appears the filing of the CR 50 motion resulted in the court continuing trial for
one week. The court heard both motions on April 17, 2023. At the conclusion of the
1 Trial was scheduled to begin on April 3, 2023. At a hearing on March 28, 2023, trial was continued to April 10, 2023, due to a conflict in the court’s schedule. It appears that trial was then continued to begin on April 17, 2023. No. 39738-6-III Lareau v. Greene (Concurrence)
hearing, the court denied Ms. Lareau’s motion for reconsideration and granted the
Greenes’ CR 50 motion:
[W]ith respect to Defendants’ motion, either -- when you consider the facts in the light most favorable to the nonmoving party, which of course here would be the plaintiff, or if you were to just look at it from a summary judgment perspective, based on my earlier ruling, my review of the entire electronic file, my review of current case law, I am going to grant Defendants’ motion as well.
Rep. of Proc. (RP) (Apr. 17, 2023) at 28. The court’s oral ruling was followed by a
written order, dated April 24, 2023. Contrary to the court’s oral ruling2 that it had
decided the Greenes’ CR 50 motion on “review of the entire electronic file,” the written
order stated the motion was decided on:
[T]he records and files herein, the case law cited by the parties, and the following briefing from the parties presented on the motion: 1. Defendants’ Motion for Judgment as a Matter of Law Seeking Dismissal of Plaintiffs Claims With Prejudice; 2. Plaintiff’s Motion for Reconsideration of Order Denying Plaintiff’s Motion for Partial Summary Judgment on Defendant [Greenes’] Duty to Inspect and Repair; 3. Plaintiff’s Response to Defendants’ Motion for Judgment as a Matter of Law; and 4. Defendants’ Reply Brief Supporting Judgment as a Matter of Law.
2 Unless an oral decision is formally incorporated into the findings of fact, conclusions of law, and judgment, it has no final or binding effect. Stiles v. Kearney, 168 Wn. App. 250, 258, 277 P.3d 9 (2012). “[I]f an oral decision conflicts with a written decision, the written decision controls.” Id. (citing Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963)). 2 No. 39738-6-III Lareau v. Greene (Concurrence)
RP (Apr. 17, 2023) at 26; Clerk’s Papers (CP) at 462-63. This order is before us on
appeal.
CR 50—JUDGMENT AS A MATTER OF LAW
The trial court improperly granted the Greenes’ judgment under CR 50. In part,
CR 50(a) provides:
If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against the party on any claim . . . that cannot under the controlling law be maintained without a favorable finding on that issue.
(Emphasis added.) It is undisputed that the court granted judgment in favor of the
Greenes prior to a jury trial and before it afforded Ms. Lareau the opportunity to be fully
heard with respect to her claim. This was error that warrants reversal. Our review should
end here.
CR 56—SUMMARY JUDGMENT
Perhaps in recognition that reversal of the CR 50 order was imminent, the parties
invited us to review the CR 50 order under the guise of CR 56. However, similar to their
lack of compliance with CR 50, the Greenes failed to comply with the provisions of CR
56.
3 No. 39738-6-III Lareau v. Greene (Concurrence)
We review CR 50 and CR 56 orders de novo and view the evidence in a light most
favorable to the nonmoving party. Butson v. Dep’t of Labor & Indus., 189 Wn. App.
288, 296, 354 P.3d 924 (2015) (“This court reviews a trial court’s CR 50 decision de
novo.”); Schmidt v. Coogan, 162 Wn.2d 488, 491, 173 P.3d 273 (2007) (“Judgment as a
matter of law is not appropriate if, after viewing the evidence in the light most favorable
to the nonmoving party and drawing all reasonable inferences, substantial evidence exists
to sustain a verdict for the nonmoving party.”); Keck v. Collins, 184 Wn.2d 358, 370, 357
P.3d 1080 (2015) (“We review orders on summary judgment de novo.”); Barber v.
Bankers Life & Cas. Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972) (“[W]here a motion is
made for summary judgment, it is the duty of the trial court to consider all evidence and
all reasonable inferences therefrom in a light most favorable to the nonmovant.”).
However, these two aspects of review are where the similarities begin and end.
A motion under CR 50 does not become ripe until “during a trial by jury, a party
has been fully heard with respect to an issue.” CR 50(a)(1). Contrarily, a motion under
CR 56 must be filed and served on the opposing party at least 28 calendar days before the
hearing. CR 56(c). The motion must then be heard at least 14 calendar days before trial.
Here, the Greenes failed to comply with both rules. Their CR 50 motion was
brought in advance of trial and therefore was not ripe. The trial court commented that it
was “look[ing] at it from a summary judgment perspective.” RP (Apr. 17, 2023) at 26.
4 No. 39738-6-III Lareau v. Greene (Concurrence)
However, the motion was filed on the first day of trial and was not filed and served on
Ms. Lareau at least 28 calendar days before trial, in violation of CR 56(c). Moreover, the
motion was heard one week after trial was scheduled to commence, not at least 14 days
before trial. The Greenes’ motion was not properly before the court under either CR 50
or CR 56.
The most problematic aspect of attempting to review the order under the guise of
CR 56 is the lack of compliance with CR 56(h). CR 56(h) mandates: “The order granting
or denying the motion for summary judgment shall designate the documents and other
evidence called to the attention of the trial court before the order on summary judgment
was entered.” (Emphasis added.) Here, the CR 50 order states the court reviewed four
documents plus “the records and files herein, the case law cited by the parties, and the
following briefing from the parties presented on the motion.” CP at 462. Contrary to the
written order, the court commented it had reviewed the “entire electronic file.” RP (Apr.
17, 2023) at 26.
To compound the problem, the “entire electronic file” the court supposedly relied
on was not designated for our review. RP (Apr. 17, 2023) at 26. “An appellate court
would not be properly accomplishing its charge if the appellate court did not examine all
the evidence presented to the trial court.” Folsom v. Burger King, 135 Wn.2d 658, 663,
958 P.2d 301 (1998). Here, each document filed with the county clerk was assigned a
sub number (SN). Ms. Lareau’s summons and complaint is listed as “SN: 1.” CP at 1.
5 No. 39738-6-III Lareau v. Greene (Concurrence)
Her notice of appeal of the CR 50 order is designated “SN: 218.” CP at 464.
Presumably, 218 documents had been filed between the time this case was initiated and
now before this court on review. However, the parties designated only approximately 70
documents for our review. Not only are we unsure what constitutes the “entire
electronic file,” it is unlikely the “entire electronic file” has been provided for our review.
RP (Apr. 17, 2023) at 26. Without the “entire electronic file,” we are unable to
accomplish our goal of providing a reasoned disposition of legal issues presented to us by
examining all the evidence presented to the trial court. Id.
Cooney, J.