Opinion
No. 32090-8-II
Filed: April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No. 02-2-01492-6. Judgment or order under review. Date filed: 07/28/2004. Judge signing: Hon. James J Stonier.
Counsel for Appellant(s), Duane Charles Crandall, Crandall O'Neill McReary, PO Box 336, Longview, WA 98632-7211.
Counsel for Respondent(s), R. Daniel Lindahl, Attorney at Law, 888 SW 5th Ave Ste 300, Portland, OR 97204-2017.
KC Holdings, LLC appeals a jury verdict finding for National Casualty Company denying coverage to KC Holdings for residential rental property damaged by fire. We deny review on KC Holdings' claim of error regarding a jury instruction because it failed to raise this argument below. We also do not review the trial court's ruling denying summary judgment because there was a trial on the merits. We affirm.
KC Holdings owned and rented a four-plex divided into units 281, 281-283, and 283- and a neighboring house at 285, located on 17th Avenue in Longview, Washington. In August 2001, the tenants living in 281-, the Flinks, approached KC Holdings' property manager, Lance Miller, and asked if they could relocate to the house at 285. The previous tenant at 285 had left the property 'uninhabitable' and 'filthy,' and the Flinks offered to clean the house in exchange for their rent at 281-. Clerk's Papers (CP) at 34.
Calvin Miller, a partner at KC Holdings, testified that '[t]he deal with the Flinks [was] that they were going to take care of all the clean up of 285, and we were going to let them stay in 281- for free, until the clean up was complete. They'd have ninety days to do it, and they'd move into 285 and start renting it from us.' Report of Proceedings (RP) (June 17, 2004) at 7. The Flinks signed an agreement stating that they would live in 281- free of rent for 90 days while they cleaned 285; at trial, Lance described this agreement as a 'pre-lease' contract.' RP (June 16, 2004) at 25.
As the Flinks prepared 285, they moved some of their furniture into the house. In addition, Lance observed a power cord running from 281- to 285. The Flinks failed to complete cleaning 285 within 90 days and, in December 2001, Lance posted notices of abandonment at 281- and 285. Lance testified that at that time, he believed the Flinks were 'co-occupying' both 281- and 285, but he did not actually know '[w]hat they were doing at one compared to the other.' RP (June 16, 2004) at 34.
Lance testified that the Flinks had not actually 'abandoned' 281- or 285; but he posted the notice because it was the 'quickest method' of regaining control of the units. RP (June 16, 2004) at 10.
On January 13, 2002, fire damaged the house at 285. KC Holdings subsequently sought coverage from its insurance carrier, National Casualty Company (National).
KC Holdings' insurance policy contained an occupancy endorsement denying coverage for loss to a building that had been unoccupied for more than 60 days immediately prior to the loss. Specifically, the policy states:
The Company shall not be liable for loss occurring while a described building, whether intended for occupancy by owner or tenant, is vacant, or unoccupied for more than sixty (60) consecutive days immediately before the loss.
Supplemental CP at 44.
National denied coverage, finding that 285 had been vacant or unoccupied for more than 60 days immediately preceding the fire. KC Holdings then brought suit, seeking recovery for its fire-related damages.
KC Holdings moved for summary judgment on the issue of whether 285 had been 'unoccupied' for more than 60 days before the fire. CP at 59. It argued that this term was ambiguous and, consequently, the trial court was required as a matter of law to construe it against National, the insurer, and to find National liable. The court denied the motion, finding that genuine issues of material fact remained as to whether the Flinks had occupied 285. The case was then tried before a jury.
At trial, the chief issue was whether the Flinks had occupied 285 within the 60 days prior to the fire; KC Holdings presented the theory that the Flinks had occupied 285 and 281- simultaneously during that time. With respect to this issue, the court instructed the jury:
INSTRUCTION No. 8
DEFINITION OF OCCUPANCY
To be occupied, a dwelling must be used for human habitation as a customary or usual place of abode, not necessarily continuously. When a dwelling ceases to be used for living purposes or a customary place of human habitation, it is unoccupied.
CP at 115.
The jury returned a verdict for National. KC Holdings appeals.
I. Jury Instruction
KC Holdings first contends that the trial court erred in giving its jury instruction 8. It argues that the court instructed the jury that essentially only one dwelling can be 'occupied' at a time; thus, the instruction did not permit it to argue its theory of the case i.e., that the Flinks had occupied 281- and 285 simultaneously. Br. of Appellant at 8. Additionally, KC Holdings argues that the instruction was misleading because it suggested that an 'occupied' dwelling is a place where people live most of the time while simultaneously stating that a dwelling can be a place where people live only some of the time and that it did not inform the jury of the applicable law because '[n]othing in Washington law forbids persons from occupying more than one dwelling at a time.' Br. of Appellant at 10. However, KC Holdings has failed to properly preserve this issue for appeal.
CR 51(f) requires a party objecting to an instruction to 'state distinctly the matter to which he objects and the grounds of his objection.' The purpose of this rule is to clarify the exact points of law and reasons upon which counsel argues the court is committing error. Walker v. State, 121 Wn.2d 214, 217, 848 P.2d 721 (1993). The pertinent inquiry on review is whether the exception was sufficient to apprise the trial judge of the nature and substance of the objection. Walker, 121 Wn.2d at 217. If an exception is inadequate to apprise the judge of certain points of law, we will not consider those points on appeal. Walker, 121 Wn.2d at 217; See also RAP 2.5(a).
KC Holdings' objection to jury instruction 8 at trial differs from its assignment of error here on appeal. At trial, KC Holdings did not argue that the court's instruction erroneously instructed the jury that a resident may not simultaneously occupy two or more dwellings; it argued that because the insurance contract did not define the terms 'vacant' and 'unoccupied,' the jury, not the court, was required to define those terms. RP (June 18, 2004) at 3. Put another way, at trial KC Holdings objected to the fact that the court assigned a definition to these terms, whereas on appeal, it now objects to the definition given. In sum, KC Holdings' objection to jury instruction 8 failed to apprise the trial court of the nature and substance of its objections now made on appeal. Therefore, we do not consider its claim.
II. Summary Judgment
In addition, KC Holdings asserts that the trial court erred in denying its motion for summary judgment. But the matter went to trial, and a ruling denying summary judgment based upon the presence of material disputed facts is not reviewable after trial on the merits. Herring v. Dep't of Soc. Health Servs, 81 Wn. App. 1, 14, 914 P.2d 67 (1996).
KC Holdings attempts to circumvent this rule, arguing that it presented only issues of law in its summary judgment motion. Notwithstanding, the trial court refused to grant summary judgment because it found remaining genuine issues of material fact. Accordingly, we do not review the court's summary judgment ruling.
Additionally, KC Holdings requests attorney fees pursuant to RAP 18.1. However, it fails to identify any applicable law and it is not the prevailing party on appeal. The request for attorney fees is denied.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL and MORGAN, JJ., Concur.