Volume X, Issue V
September/October 1997
Appellate Review of Factual Issues:
the Rules and Some Ways Around Them
by Karl B. Tegland
Editor's Note: The following article previously appeared in the April 1994 issue of Mr. Tegland's Litigation Today newsletter. Mr. Tegland revised and expanded the article for De Novo.
Introduction
You and your client are unhappy with the results at trial and are considering an appeal. Your client can afford the time and expense of an appeal but wants you to evaluate the chances of success before proceeding.
Experienced appellate practitioners know that when thinking through the appealability of potential errors at trial, one of the most important things to consider is the standard of review that the appellate court will employ when reviewing the alleged error. This article examines the standard of review for one sort of alleged error—the factual issue. By factual issue, I mean (1) the propriety of the trial court's determination on a specific point about who-did-what-when-and-where, or (2) the overall sufficiency of the evidence to meet the burden of proof, or (3) the propriety of the trial court's determination on an issue such as reasonableness or the amount of damages awarded—issues that may not appear to be factual issues on the surface, but that will be considered as such on appeal. The question of what constitutes a factual issue is taken up in more detail below.
The applicable standard of review is hardly a promising one for appellants seeking a reversal. As will be seen, the appellate courts are very deferential to the trial courts on factual issues, and reversals are rare. The law in this area will please respondents, not appellants. Nevertheless, an analysis of the case law reveals ways in which an appellant, with carefully phrased argument, can significantly increase the chances of success with a factual appeal. Some of the arguments employed by experienced appellate practitioners are reviewed in the sections that follow.
The Ground Rules
In a civil case, the trial court's findings of fact will not be disturbed on appeal if they are supported by substantial evidence. Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. The rule is based upon the notion that the trier of fact is in the best position to decide factual issues. The leading case, still often cited, is Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. Bering v. Share, 106 Wn.2d 212, 721 P.2d 918 (1986).
Substantial evidence is sometimes defined as the quantum of evidence needed to satisfy the burden of production (as opposed to the higher burden of proof). In re Dependency of C.B., 61 Wn. App. 280, 810 P.2d 518 (1991), court's footnote 2. In other words, once the plaintiff produces enough evidence to satisfy the burden of production (and survive a defense motion for judgment as a matter of law under CR 50), the trier of fact alone determines the facts of the case, and an appellate court will not substitute its judgment.
Essentially the same restrictions apply when the facts have been determined by a jury, rather than by the court in a non-jury case (see What Constitutes a Factual Issue, below).
The unifying principle is this: once the plaintiff produces enough evidence to satisfy the burden of production, the trier of fact alone determines the facts in the case, and neither the trial court nor an appellate court will substitute its judgment on factual issues.
In civil cases, the substantial evidence rule is sometimes referred to, only half jokingly, as the "any evidence" rule because it often seems that factual determinations are affirmed if there is any supporting evidence in the record. Civil appeals raising only factual issues rarely result in reversals, and the attorney contemplating a fact-based appeal should keep this reality in mind.
In criminal cases, review of factual issues is a bit more rigorous, at least when the issue is the sufficiency of the evidence to sustain the conviction. It is said that a conviction will be affirmed only if the appellate court, viewing the evidence in the light most favorable to the State, is satisfied there is sufficient evidence to justify any rational trier of fact that the defendant is guilty beyond a reasonable doubt. The test does not require the State to convince the appellate court that the defendant is guilty beyond a reasonable doubt—just that a rational trier of fact could so conclude. State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
At one time, the appellate courts were willing to reassess the facts in a criminal case when constitutional rights were at issue. This rule, however, was abandoned in 1994 in State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994).
What Constitutes a Factual Issue?
Issues treated as factual issues obviously include issues as to who-what-where-when-and-how, but under some circumstances more subtle issues such as reasonableness may also be included, thus limiting appellate review of those issues. See, e.g., Pickett v. Stephens-Nelsen, Inc., 43 Wn. App. 326, 717 P.2d 277 (1986) (a finding that a settlement agreement is reasonable is a factual determination that will be treated as such on appeal).
In civil cases, at least, the courts do not seem make any distinction on the basis of whether the issue is the accuracy of one specific finding, or the overall sufficiency of the evidence to satisfy the plaintiff's burden of proof. In either situation, the trial court will be affirmed if supported by substantial evidence.
In a jury case, the jury's decisions are viewed as a factual determinations and will be sustained if supported by substantial evidence. Swartley v. Seattle School District, 70 Wn.2d 17, 421 P.2d 1009 (1966). The amount of damages awarded by the jury is normally considered a factual issue that will rarely be disturbed on appeal. Hoglund v. Raymark Industries, Inc., 50 Wn. App. 360, 749 P.2d 164 (1987) ("The jury is the appropriate assessor of damages, and its determination should be overturned only in the most extraordinary circumstances. ... The proper amount of damages in this case was for the jury.").
Similarly, the amount of damages awarded by the court in a non-jury case is normally considered a factual issue that will rarely be disturbed on appeal. Hoglund v. Raymark Industries, Inc., 50 Wn. App. 360, 749 P.2d 164 (1987). It may be possible, however, to argue on appeal that the findings of fact are inadequate to support an award of damages because the findings are not sufficiently specific. See, Shinn v. Thrust IV, Inc., 56 Wn. App. 827, 786 P.2d 285 (1990) (remanded for more specific findings to show the basis for damages and method of computation). To avoid such an appeal, the prevailing party should, of course, draft and submit findings that are sufficiently specific to withstand challenge.
Labels Not Controlling
In administering the general rule restricting appellate review of factual issues, the trial court's labels "findings of fact" and "conclusions of law" are not binding on the appellate court. If a conclusion of law is really a factual determination based on the evidence, an appellate court may be persuaded to give the determination more deference in accordance with substantial evidence rule. Robblee v. Robblee, 68 Wn. App. 69, 841 P.2d 1289 (1992). Conversely, if a finding of fact also has legal implications, an appellate court may be persuaded to engage in de novo review, as it would on any other issue of law. Mid-Town Limited Partnership v. Preston, 69 Wn. App. 227, 848 P.2d 1268 (1993).
Astute counsel—with carefully phrased argument—may be able take advantage of the "labels not controlling" rule to expand upon review of a finding of fact, or to restrict review of conclusion of law.
Lack of Findings
The failure of the trial court to make a finding as to a material fact is normally deemed a finding against the party having the burden of proof of the material fact. Lobdell v. Sugar 'N Spice, Inc., 33 Wn. App. 881, 658 P.2d 1267 (1983). An appellate court may be persuaded otherwise, however, if there is undisputed evidence in the record that compels a contrary finding. E.g., Lobdell v. Sugar 'N Spice, Inc., 33 Wn. App. 881, 658 P.2d 1267 (1983).
At times, the appellate courts have considered an issue not expressed in the findings if the trial court was requested to include the matter in the findings, and the matter had been thoroughly discussed at trial. Ruddach v. Don Johnston Ford, Inc., 97 Wn.2d 277, 644 P.2d 671 (1982).
The court may consider an issue clearly raised in the pleadings which the trial court refused to pass upon. Simpson v. State, 26 Wn. App. 687, 615 P.2d 1297 (1980) (on summary judgment); Sarruf v. Miller, 90 Wn.2d 880, 586 P.2d 466 (1978) (summary judgment, declaratory judgment).
In the absence of a finding, an appellate court may look to the trial court's oral opinion to determine the basis for the trial court's resolution of the issue. In re Marriage of Booth, 114 Wn.2d 772, 791 P.2d 519 (1990).
Undisputed Facts
When the facts are undisputed, the trial court's determination becomes a conclusion of law and is reviewable on appeal. State v. Sykes, 27 Wn. App. 111, 615 P.2d 1345 (1980). An appellate court is not bound by findings that are contrary to undisputed evidence. State ex rel. Coyle-Reite v. Reite, 46 Wn. App. 7, 728 P.2d 625 (1986).
Cases Decided on Affidavits or Other Writings
If the trial court has determined a case solely on the basis of affidavits, as is often done in declaratory judgment actions, appellate review will be on a de novo basis. Both facts and law will be reconsidered by the appellate court. Such a case is not reviewed as a summary judgment (i.e., viewing the facts in the light most favorable to the nonmoving party) unless, of course, the case was actually resolved by the trial court on a formal motion for summary judgment. Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 791 P.2d 526 (1990) (overruling cases to the contrary).
The same has been said of cases decided solely on the basis of written and graphic material. Here, there is no question as to the credibility of witnesses, and the appellate court can judge the sufficiency of the evidence for itself. State v. Thetford, 109 Wn.2d 392, 745 P.2d 496 (1987); In re Request of Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986).
If the trial court has failed to make factual findings, the appellate court may independently review evidence consisting of written documents and make required findings, instead of remanding the matter to the trial court. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 829 P.2d 1099 (1992).
If the trial court dismisses for failure to state a claim (a motion normally heard on affidavits or other writings), and if the plaintiff appeals, the appellate court will consider even hypothetical facts that might give the plaintiff a cause of action. Bravo v. Dolsen Companies, 125 Wn.2d 745, 888 P.2d 147 (1995) (trial court's dismissal reversed; extended discussion of dismissals for failure to state a claim).
Clear, Cogent, and Convincing Evidence
In a civil case, the appellate court may be more inclined to reassess the sufficiency of the evidence if the applicable burden of proof is by clear, cogent, and convincing evidence; e.g., a case seeking a termination of parental rights. The proper test on appeal, however, has been the subject of long-standing debate. The leading case is In re Sego, 82 Wn.2d 736, 513 P.2d 831 (1973), which seemed to signal more rigorous review of factual issues, but subsequent appellate opinions have disagreed on what Sego means. In one such case, the Court of Appeals simply refused to follow Sego and applied the substantial evidence rule instead. In re Ott, 37 Wn. App. 234, 237 n. 2, 679 P.2d 372 (1984). In another case, the Court of Appeals stated that Sego "has caused confusion" and should be "reworded." In re Dependency of C. B., 61 Wn. App. 280, 810 P.2d 518 (1991).
Credibility of Witnesses
The restrictions on review of factual issues should not be confused with restrictions on review of the credibility of witnesses. As indicated in the preceding sections, the law-fact distinction often leaves room for argument, and restrictions on review of factual issues can sometimes be overcome by persuading the appellate court that the issue is one of law, not fact. By contrast, however, an appellate court will nearly always refuse to re-evaluate the credibility of witnesses. In re A.V.D., 62 Wn. App. 562, 815 P.2d 277 (1991); State v. Vazquez, 66 Wn. App. 573, 832 P.2d 883 (1992). A countervailing rule, which attorneys have occasionally employed to overcome the rule against re-evaluating credibility, is that it may be reversible error for the trial court to completely disregard undisputed testimony. In re Stell, 56 Wn. App. 356, 783 P.2d 615 (1989) (in custody dispute, trial court erred in refusing to give any credence to "overwhelming and unrebutted" expert testimony; case remanded for new trial).
Making a Record in Contemplation of a Factual Appeal
Special care must be taken when establishing a record for an appeal based upon the insufficiency of the evidence. A motion to dismiss at the close of the plaintiff's (or State's) case may, alone, be inadequate. The defendant is said to waive such a challenge by proceeding to offer evidence on his or her own behalf. In order to appeal on the basis of insufficient evidence, the defendant should renew the motion to dismiss at the end of the trial and, on appeal, should specifically assign error to the trial court's finding that the evidence was sufficient as a whole. State v. Young, 50 Wn. App. 107, 747 P.2d 486 (1987) (defendant's assignment of error to trial court's denial of motion to dismiss at close of State's case was insufficient to raise the issue on appeal).
Karl B. Tegland is the author or co-author of several volumes of West's Washington Practice, including Washington Evidence Law and Practice, Washington Trial Practice, Washington Rules Practice, and The Courtroom Handbook on Washington Evidence. In addition, Mr. Tegland has contributed to the Washington State Judges' Benchbook on Criminal Procedure, the Washington State Judges' Benchbook on Juvenile Court Procedure, the Domestic Violence Manual for Judges, and the County Clerk's Handbook. He also writes and publishes Litigation Today, a monthly newsletter for Washington judges and practitioners, and is a member of the Washington Supreme Court's Committee on Pattern Jury Instructions. He is now of counsel with the Seattle firm of Treece, Richdale, Malone, Corning & Abbott.
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