       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CONSTRUCTION CO., INC., a                      )   UNPUBLISHED OPINION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

JYD.

       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-

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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



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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.




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      We reverse and remand for further proceedings.




WE CONCUR:




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