IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CANDACE NOLL, Individually and as
Personal Representative of the Estate of   No. 77888-9-I
Donald Noll, Deceased,
                                           DIVISION ONE
                    Appellant,
                                           UNPUBLISHED OPINION
             v.

SPECIAL ELECTRIC COMPANY, INC.,

                    Respondent,

             and

AMERICAN BILTRITE, INC.;
AMETEK INC.;
BIRD INCORPORATED;
BORGWARNER MORSE TEC INC. as
successor-by-merger to BORG-
WARNER CORPORATION;
CBS CORPORATION, a Delaware
Corporation, f/k/a VIACOM INC.,
successor by merger to CBS
CORPORATION, a Pennsylvania
Corporation, f/k/a WESTINGHOUSE
ELECTRIC CORPORATION;
CERTAIN TEED CORPORATION;
CONWED CORPORATION;
DOMCO PRODUCTS TEXAS INC;
FORD MOTOR COMPANY;
GENERAL ELECTRIC COMPANY;
GEORGIA-PACIFIC LLC;
HERCULES INCORPORATED;
HONEWELL INTERNATIONAL INC.;
INDUSTRIAL HOLDINGS
CORPORATION f/k/a THE
CARBORUNDUM COMPANY;
INGERSOLL-RAND COMPANY;
No. 77888-9-I/2


 J-M MANUFACTURING COMPANY
 INC.; KAISER GYPSUM COMPANY
 INC.; KELLY MOORE PAINT
 COMPANY INC.,
                  Defendants.

        HAZELRIGG, J. — This case returns following entry of findings of fact on

remand as directed by our opinion in Noll v. Special Electric Company, Inc., 9 Wn.

App. 2d 317, 444 P.3d 33 (2019). We ordered this remand because neither the

trial court’s reasoning nor the underlying facts supporting its decision that it lacked

personal jurisdiction over Special Electric Company could be discerned from the

original record on appeal.           We remanded for the trial court to return to the

documentary evidence previously submitted by the parties, determine whether

Special Electric purposefully availed itself of the privilege of doing business in

Washington, and provide us with the record necessary to engage in our analysis

of the issues raised by appellant Noll. We retained jurisdiction for subsequent

review. On remand, a different judge reviewed the record and issued findings of

fact. This trial court’s findings support the conclusion that personal jurisdiction

exists over Special Electric. Accordingly, we reverse the dismissal of Noll’s lawsuit

against Special Electric.
                                               FACTS

        The trial court dismissed Donald Noll’s asbestos claims against Special

Electric Company (Special Electric) for lack of personal jurisdiction.1 Noll appealed

and the Washington Supreme Court remanded to the trial court to reconsider its




        1 The facts are set forth in detail in this court’s opinion in Noll v. Special Electric Company,
Inc., 9 Wn. App. 2d 317, 444 P.3d 33 (2019). We repeat only those facts necessary to resolve the
issues before us now.


                                                       2
No. 77888-9-I/3


ruling in light of State v. LG Electronics, Inc., 186 Wn.2d 169, 375 P.3d 1035

(2016). Noll v. Am. Biltrite Inc., 188 Wn.2d 402, 416, 395 P.3d 1021 (2017) (Noll

I). The court concluded that Noll did not allege sufficient facts for Washington to

exercise specific personal jurisdiction over Special Electric. But the court also

indicated that it did not intend to preclude the trial court from making its own finding

of jurisdiction on remand “depending on the allegations that the plaintiff then

raises.” Noll I, 188 Wn.2d at 406. Because “Noll failed to allege any action taken

by Special to purposefully avail itself of the benefits and protections of the

Washington market,” the court declined to decide “if showing actual knowledge or

awareness is necessary, or sufficient, to finding specific personal jurisdiction in

stream of commerce cases.” Noll I, 188 Wn.2d at 416.

       On remand, Noll presented a new motion to establish specific jurisdiction

with additional evidence. After conducting a preliminary hearing based solely on

documentary evidence, the trial court denied Noll’s motion to establish personal

jurisdiction over Special Electric. The trial court did not enter findings of fact or

conclusions of law, entering only the following order denying the motion:

       The evidence presented by Plaintiff is insufficient to establish that
       Special [Electric] to [sic] purposely avail[ed] itself of the benefits
       and protections of the Washington market, thus conferring specific
       jurisdiction in this matter. Special [Electric]’s other unrelated
       contacts with two Washington State companies are not relevant to
       [the] issue of specific jurisdiction which is the only basis that is
       asserted.

       Noll appealed. Noll v. Special Elec. Co., 9 Wn. App. 2d 317, 444 P.3d 33

(2019) (Noll II). We held that it was appropriate to apply the “usual standards of

review in Washington,” i.e., de novo for conclusions of law and substantial



                                              3
No. 77888-9-I/4


evidence review for findings of fact.     Noll II, 9 Wn. App. 2d at 321.        While

acknowledging that case law permits Washington courts to review documentary

evidence de novo, we also recognized our authority to defer to the trial court’s

findings in cases where the evidence was voluminous and complex. Noll II, 9 Wn.

App. 2d at 321 (citing Dolan v. King County, 172 Wn.2d 299, 310-11, 258 P.3d 20

(2011)). Because the evidence here “involves a number of complex questions,

including the meanings of corporate documents, abbreviations, figures, and

percentages,” we held “it appropriate to defer to the trial court as to the facts in

these circumstances.” Noll II, 9 Wn. App. 2d at 321.

       We rejected Special Electric’s invitation to rely on implied findings of fact

based on the trial court’s decision, noting that Special Electric failed to prepare a

formal order or request findings of fact and this court was “not inclined to speculate

on findings beneficial to the party that failed to procure them.” Noll II, 9 Wn. App.

2d at 323. We further acknowledged that “the subject of specific jurisdiction is not

well-settled law,” noting a “significant disagreement” among courts about how to

test evidence of personal jurisdiction. Id.

       We then remanded for the trial court to make specific factual findings in

support of its ruling “[b]ecause we cannot discern the reasoning or underlying facts

supporting the decision to deny personal jurisdiction against Special Electric,” and

“[b]ecause we have no reliable indication of the facts as the trial court understood

them.” Noll II, 9 Wn. App. 2d at 319, 323. Specifically, we asked the trial court to

answer the following questions “as well as any other findings of fact that support

its decision”:



                                              4
No. 77888-9-I/5


        1.      Did Special Electric control a significant share of the United
                States market for asbestos?
        2.      Did Special Electric intend for its asbestos to be incorporated
                into products sold across the United States and in
                Washington?
        3.      Was a substantial volume of CertainTeed asbestos-cement
                pipe containing Special Electric’s asbestos sold in
                Washington as part of the regular flow of commerce?
        4.      Did Special Electric know that CertainTeed sold asbestos-
                cement pipe in Washington?
        5.      Should Special Electric have known that CertainTeed sold
                asbestos-cement pipe in Washington?

Noll II, 9 Wn. App. 2d at 323-24.

        The trial judge who made the ruling underlying this appeal retired prior to

our remand and the case was ultimately reassigned to another.6 As we instructed,

the trial court reviewed the evidence, clarifying that “[t]his court’s role is not limited

to finding only facts that support the trial court’s prior decision to dismiss for lack

of jurisdiction,” and “acts as a neutral fact finder – it does not view the facts in a

light favorable to one side or the other, and will only make reasonable inferences

based on the evidence in the record.” The court made extensive findings of fact

and the following findings in answer to our questions on remand:

        There is insufficient evidence in the record to determine Special
        Electric’s volume share of the total United States market for all types
        of asbestos during the relevant time period. However, based on the
        findings set forth above, the court finds that, by 1977-79, when Mr.
        Noll worked on construction in Washington cutting asbestos-cement
        pipe manufactured by CertainTeed, Special Electric controlled a very
        substantial share of the United States market for crocidolite (blue)
        asbestos, and Special Electric’s volume share of the overall United
        States market for asbestos of all types was not insignificant.

        6  The superior court denied Special Electric’s request to assign the case to Judge Ramsdell
as a Judge Pro Tempore. This court denied Special Electric’s request to “direct that the assignment
of the remand matter to Judge Scott be withdrawn” and “request Hon. Judge Jeffrey M. Ramsdell
(Ret.) to accept a pro tem assignment in order to complete the remand process.” Respondent’s
Motion For Clarification of Remand Directive, filed September 12, 2019; Order Denying Motion for
Clarification of Remand Directive, filed October 11, 2019.


                                                     5
No. 77888-9-I/6


       Furthermore, considering facts other than just volume market share,
       Special Electric was an active and significant participant in the overall
       United States markets for asbestos, and sought to stay well-informed
       of and involved in the markets for asbestos.

       Based on the findings set forth above, as well as on additional facts
       set forth below, the court finds that Special Electric intended for its
       asbestos to be incorporated into products sold across the United
       States, including in Washington.

       Based on the forgoing facts, a substantial volume of CertainTeed
       asbestos-cement pipe containing Special Electric’s asbestos was
       sold in Washington as part of the regular flow of commerce.

       Based on the substantial circumstantial evidence described above,
       the court finds that Special Electric knew CertainTeed sold
       asbestos-cement pipe in Washington.

       Based on the findings set forth above, and a fortiori, Special
       Electric should have known that CertainTeed sold asbestos-cement
       pipe in Washington.

                                   DISCUSSION

       We review factual findings following a preliminary hearing for substantial

evidence and questions of law de novo. Noll II, 9 Wn. App. 2d at 320-21. We

defer to the trial court as the fact finder to weigh the evidence and draw reasonable

inferences therefrom. State v. Perebeynos, 121 Wn. App. 189, 196, 87 P.3d 1216

(2004). As noted above, we held it appropriate to defer to the trial court to make

factual findings rather than act as initial fact finders, due to the complexity of the

factual issues raised in this case. Noll II, 9 Wn. App. 2d at 321.

       We remanded for the trial court to enter findings because we did not have

sufficient information to review the court’s ruling on personal jurisdiction. As the

trial court indicated on remand, the task before it was to review the record, find the

facts, and answer the questions set out in our first opinion. The parties agreed



                                              6
No. 77888-9-I/7


that all the evidence to be considered on remand was properly before the court.

Now having before us the relevant findings, our task is to determine whether those

findings support the exercise of personal jurisdiction over Special Electric.

       Special Electric contends that the trial court exceeded the scope of remand.

Because the first judge concluded there was no personal jurisdiction over Special

Electric and the second judge concluded the very opposite, Special Electric asks

this court to ignore the court’s findings and affirm the first judge’s order of dismissal.

We decline to do so. Because we had an insufficient factual record to affirm the

court’s order of dismissal, our only alternative would have been to reverse the

order of dismissal in its entirety and allow Special Electric to refile the jurisdictional

motion to dismiss on remand. Had we done so, Special Electric would have been

reassigned to a new judge and would be in the exact same position it finds itself in

now.   And we would be reviewing the same trial court’s findings of fact and

conclusions of law as we now undertake in this opinion.

       These findings support a conclusion that haling Special Electric into a

Washington court does not violate its due process rights. The due process clause

requires “that individuals have ‘fair warning that a particular activity may subject

[them] to the jurisdiction of a foreign sovereign.’” LG Elecs., 186 Wn.2d at 176

(alteration in original) (internal quotation marks omitted) (quoting Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)).

Washington’s long arm statute, RCW 4.28.185, confers specific personal

jurisdiction over nonresident defendants so long as the exercise of jurisdiction

complies with federal due process. Noll I, 188 Wn.2d at 411 (citing Shute v.



                                                7
No. 77888-9-I/8


Carnival Cruise Lines, 113 Wn.2d 763, 766-67, 783 P.2d 78 (1989)). Due process

requires that: (1) purposeful minimum contacts exist between the defendant and

the forum state, (2) the plaintiff’s injuries arise out of or relate to those minimum

contacts, and (3) the exercise of jurisdiction is reasonable, consistent with notions

of fair play and substantial justice. Grange Ins. Ass’n v. State, 110 Wn.2d 752,

758, 757 P.2d 933 (1988). Here, the focus of the parties’ dispute is whether Noll

established that Special Electric had purposeful minimum contacts with

Washington.

       “To establish purposeful minimum contacts, there must be some act by

which the defendant ‘purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and protections of its

laws.’” LG Elecs., 186 Wn.2d at 177 (quoting Burger King, 471 U.S. at 475). “A

foreign manufacturer or distributor does not purposefully avail itself of a forum

when the sale of its products there is an ‘isolated occurrence’ or when the unilateral

act of a consumer or other third party brings the product into the forum state.” LG

Elecs., 186 Wn.2d at 177 (quoting World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 295, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)). But purposeful

availment may be established when a foreign manufacturer seeks to serve the

forum state’s market and places goods into the stream of commerce with intent

that they will be purchased by that state’s consumers. LG Elecs., 186 Wn.2d at

177-78 (citing J. McIntyre Mach., Ltd., v. Nicastro, 564 U.S. 873, 881-82, 888-89,

131 S. Ct. 2780, 180 L.Ed.2d 765 (2011); Asahi Metal Indus. Co v. Superior Court,

480 U.S. 102, 109-13, 117-21, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987); World-



                                             8
No. 77888-9-I/9


Wide Volkswagen, 444 U.S. at 295-97; Grange Ins. Ass’n, 110 Wn.2d at 761-62).

Jurisdiction cannot be based on mere foreseeability that a product may end up in

the forum state. Rather, “the defendant’s conduct and connection with the state

must be such that it should reasonably anticipate being haled into court there.” LG

Elecs., 186 Wn.2d at 178.

       In LG Electronics, the court held that the State’s complaint against

companies who manufactured cathode ray tubes (CRTs) was sufficient to establish

a prima facie case of purposeful minimum contacts where the State alleged that

the defendant companies: (1) dominated the global market, (2) sold CRTs into

international streams of commerce with the intent that the CRTs would be

incorporated into millions of CRT products sold across the United States and in

large quantities in Washington, and (3) intended for their price-fixing activities to

elevate the price of CRT products purchased by Washington consumers. 186

Wn.2d at 182. The court agreed with the State that the “presence of millions of

CRTs in Washington was not the result of chance or the random acts of third

parties, but a fundamental attribute of [the Companies’] businesses.” Id.

       In so holding, the court cited Justice Breyer’s concurring opinion in J.

McIntyre, as representing the holding of the Court:

       Under J. McIntyre, a foreign manufacturer’s sale of products through
       an independent nationwide distribution system is not sufficient,
       absent something more, for a State to assert personal jurisdiction
       over a manufacturer when only one product enters a state and
       causes injury. Id. at 888-89, 131 S. Ct. 2780 (Breyer, J., concurring).
       J. McIntyre did not foreclose an exercise of personal jurisdiction over
       a foreign defendant where a substantial volume of sales took place
       in a state as part of the regular flow of commerce.




                                             9
No. 77888-9-I/10


LG Elecs., 186 Wn.2d at 181.         The court concluded that “[a]n exercise of

jurisdiction based on the allegations in the State’s complaint is not foreclosed by

J. McIntyre” and the State made a prima facie showing of purposeful minimum

contacts. LG Elecs., 186 Wn.2d at 183, 185.

       Justice Breyer’s concurrence in J. McIntyre stated that New Jersey courts

could not establish specific jurisdiction based on a “single isolated sale” even if

accompanied by a national sales effort. 564 U.S. at 888. The concurrence noted

the facts showed no regular flow or regular course of sales in the state, “there is

no ‘something more,’ such as special state-related design, advertising, advice,

marketing, or anything else,” and the plaintiff did not introduce a list of potential

New Jersey customers who might have regularly attended trade shows or

otherwise show that the defendant manufacturer delivered its goods in the stream

of commerce with the expectation that they would be purchased by New Jersey

consumers. J. McIntyre, 564 U.S. at 889.

       As noted above, in Noll I, the court declined to decide “if showing actual

knowledge or awareness is necessary, or sufficient, to finding specific personal

jurisdiction in stream of commerce cases” because “Noll failed to allege any action

taken by Special to purposefully avail itself of the benefits and protections of the

Washington market.”      188 Wn.2d at 416.       The court noted that “[t]he only

connection to Washington that Noll alleged was the unilateral act of an out-of-state

third party, Certain-Teed,” and Noll did not allege that Special was aware of

CertainTeed’s connection to Washington or that Special was aware that

CertainTeed delivered any of its pipes outside of California. Id.



                                            10
No. 77888-9-I/11


      We hold that establishing purposeful availment for the exercise of personal

jurisdiction in stream of commerce cases in Washington State requires a showing

of actual awareness. See LG Elecs., 186 Wn.2d at 182 (finding purposeful

availment where defendants sold product “with intent” it would be incorporated in

products “sold across the United States and in large quantities in Washington”).

Special Electric contends that Noll failed to establish purposeful availment under

this test. We disagree.

      The trial court engaged in an analysis of the evidence on remand and found

that it demonstrated actual awareness. Specifically the court found:

      37.    There is no direct evidence that Special Electric knew of
             specific sales by Certain-Teed in Washington. However,
             substantial circumstantial evidence supports that Special
             Electric knew CertainTeed sold asbestos-cement pipe
             nationwide, including in Washington.

      38.    CertainTeed’s 1971 Annual Report stated that it acquired its
             asbestos-cement pipe business from Keasby & Mattison as
             part of its expansion program, and it “operated five asbestos
             cement pipe plants coast to coast.” CP 683-84, 688. Special
             Electric has admitted that CertainTeed’s annual reports were
             materials that it would have reviewed to determine “who are
             we dealing with and what are their markets and what [was] the
             scope of their sales.” TR 36. Special Electric also
             acknowledged that [it] would be reasonable to presume that
             Special Electric did its due diligence on CertainTeed and
             CertainTeed’s markets. TR 32. A reasonable commercial
             actor such as Special Electric would have understood “coast
             to coast” to mean “throughout the United States,” including
             Washington. The 1971 annual report also conveyed that
             CertainTeed was a large industrial manufacturer, with a
             “nationwide network of research, production, sales and
             distribution facilities,” and over a hundred facilities throughout
             the country.

      39.    CertainTeed’s 1977 Annual Report stated that it “ranks among
             the nation’s top 300 industrial companies,” and that it
             “distributes piping system components nationwide.” CP 732-


                                            11
No. 77888-9-I/12


            34. The 1977 Annual Report reports a 20% increase in
            asbestos-cement pipe sales, attributable primarily to sales in
            the Southwest and West. CP 735. The 1977 report stated that
            demand for pipe system components, including asbestos-
            cement pipe, “was strong on the West Coast.”

      40.   The court takes judicial notice that “the West Coast” is
            commonly understood to include Washington. No evidence in
            the record before this court suggests that the term “the West
            Coast” as used by Special Electric or CertainTeed has any
            other meaning. Special Electric’s contention that
            CertainTeed’s “West Coast” market was limited to California
            and Arizona (Dkt. Sub 388, Defendant’s Proposed Findings at
            ¶¶ 12, 14, 20), is strained, not supported by any evidence, and
            unreasonable. A reasonable commercial actor in Special
            Electric’s position would have reasonably known that
            CertainTeed’s strong West Coast sales included sales in
            Washington.

      41.   Referring specifically to asbestos-cement pipe, CertainTeed’s
            1977 annual report further stated that increased construction
            activity “contributed to the recovery of the asbestos - cement
            pipe market with particular momentum gained in the West and
            Southwest.” CP 735. The “West” is commonly understood to
            include Washington, and the Court finds that a reasonable
            commercial actor such as Special Electric would have
            reasonably understood that CertainTeed’s market for
            asbestos-cement pipe in the West included Washington.

      42.   CertainTeed’s 1978 Annual Report stated that “A/C pipe” was
            “used in one out of three municipalities in the United States.”
            CP 722-23, 727. Although this reference did not specify which
            municipalities were using asbestos-cement pipe made by
            CertainTeed (as opposed to other manufacturers), the report
            would have further informed Special Electric as to the extent
            of the United States market for asbestos-cement pipe, and it
            knew that CertainTeed was serving the entire market. Other
            information available to Special Electric indicated that as
            much as 79% of the communities in Pacific states, specifically
            including Washington, used asbestos-cement pipe.

      43.   Special Electric kept informed as to CertainTeed’s needs and
            product specifications. CP 890-95. Mr. Wareham visited
            CertainTeed on several occasions. CP 885-89. Mr. Wareham
            took executives from CertainTeed on trips to South Africa to
            visit the Gefco mine as a means, among other reasons, of


                                          12
No. 77888-9-I/13


             learning more about CertainTeed’s needs and business. CP
             896-910. This evidence shows a close working relationship
             between Special Electric and CertainTeed and supports a
             reasonable inference that Special Electric understood the
             scope of CertainTeed’s market for asbestos-cement pipe,
             which included substantial sales into Washington.

      44.    CertainTeed’s sales of asbestos-cement pipe into
             Washington were regular and substantial during the time
             period in question. CP 1428-64, 174-204. See Paragraphs 35
             and 36 above. Although there is no evidence that Special
             Electric ever reviewed CertainTeed’s actual invoices, the fact
             that such sales occurred, and that there were regular and
             substantial increases in sales, supports the likelihood that
             Special Electric, as an active and informed participant in the
             asbestos-cement pipe market, would have been aware that
             CertainTeed was selling asbestos-cement pipe in
             Washington.

      45.    Special Electric’s major asbestos-cement pipe industry
             customers, including CertainTeed, were – like Special Electric
             – members of the AIA. CP 943-78, 981-90. Between 1975 and
             1980, Mr. Wareham attended AIA conferences and meetings
             a couple times per year.

      46.    Special Electric was also very involved with the Asbestos-
             Cement Pipe Producers Association (“ACPPA”) of which its
             major crocidolite customers, including CertainTeed, were
             members.

      47.    One purpose for Special Electric’s involvement in these
             organizations and its attending conferences and meetings
             was to acquire information to further its business as a supplier
             of asbestos.

      48.    Special Electric’s involvement in these organizations for the
             purpose of acquiring information further supports the
             reasonable inference that it would have known that
             CertainTeed’s market for asbestos-cement pipe was
             nationwide, and that its nationwide market included
             Washington.

The court further found that Special Electric understood that the asbestos-cement

pipe industry sold products containing its asbestos nationwide and that



                                           13
No. 77888-9-I/14


“Washington was a target market for the industry.”

       The trial court’s findings are reasonable inferences from the evidence and

support the conclusion that Special Electric purposefully availed itself of the

benefits and protections of Washington law. Noll showed that Special Electric was

aware of CertainTeed’s connection to Washington and that Special Electric was

aware that CertainTeed delivered many of its pipes outside of California,

allegations the court noted were lacking in Noll I, 188 Wn.2d at 416. As in LG

Electronics, Noll demonstrated a regular flow of Special Electric’s asbestos into

Washington State and that the presence of its product in Washington “was not the

result of chance or the random acts of third parties, but a fundamental attribute of

[its] businesses.” 186 Wn.2d at 182. Accordingly, personal jurisdiction exists over

Special Electric.

       We reverse.




WE CONCUR:




                                            14
No. 77888-9-I/15



                Candance Noll v. Special Electric Co., Inc., No. 77888-9-I




       VERELLEN, J. (dissenting) — I respectfully dissent. One of the fundamental

differences between trial courts and appellate courts is the role of the trial court

judge or jury as fact finder. And yet, there are limited circumstances when the role

of the appellate court extends to factual determinations. A long line of cases permit

de novo review of documentary evidence by an appellate court even where a trial

court has made findings of fact.23 Where a case is decided on documentary

evidence and credibility is not an issue, the appellate court may independently

review evidence and make required findings.24 Notably, Noll acknowledges that

this court retains the authority to undertake the resolution of the factual questions




       23 Noll v. Special Elec. Co., Inc., 9 Wn. App. 2d at 317, 444 P.3d 33 (2019);
see, e.g., Serv. Emp. Int’l Union Local 925 v. Univ. of Wash., 193 Wn.2d 860, 866,
447 P.3d 534 (2019) (conducting de novo review of factual questions where a trial
court made no credibility determinations and made findings of fact only on
documentary evidence) (citing Spokane Police Guild v. Liquor Control Bd., 112
Wn.2d 30, 35-36, 769 P.2d 283 (1989)); State v. Thetford, 109 Wn.2d 392, 396,
745 P.2d 496 (1987) (“This court is freer to review factual findings based solely on
documentary evidence, as the trial court was in no better position than the
appellate court to make observations of demeanor.”); State ex rel. Pac. Fruit &
Produce Co., Inc. v. Superior Court for King County, 22 Wn.2d 327, 331-32, 155
P.2d 1005 (1945) (explaining a trial court’s findings of fact from a special
proceeding were “not in any way binding” because the proceeding was decided
solely on documentary evidence without evaluating witness credibility).
       2414A W ASHINGTON PRACTICE, CIVIL PROCEDURE § 33.22, at 458-59 (3d ed.
2018) (citing Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 829 P.2d 1099 (1992)).


                                            15
No. 77888-9-I/16


governing the application of specific jurisdiction to Special Electric and “may do so

now.”25

       The majority relies on the replacement judge’s findings of fact and applies

the traditional substantial evidence standard of review.      But, in my view, the

primary purpose of remanding for the entry of findings of fact was to seek the

factual context relied upon by the now-retired trial judge for his conclusion

Washington state lacked specific jurisdiction over Special Electric. When the

retired judge was unavailable, the replacement judge worked diligently to review

the record and make his own findings of fact. Those findings do not align with the

original trial judge’s conclusions. Our prior ruling did not preclude the use of a

replacement judge, but, under these circumstances, we are not bound by the

replacement judge’s findings.26 I respectfully conclude that this court rather than

a replacement judge should make the factual decisions necessary to resolve the

question of specific jurisdiction.

       Although voluminous details are presented, all the key facts are grounded

in undisputed declarations and documents. There are no questions of credibility

nor particular topical concerns.27       The complexity of specific jurisdiction


       25 Appellant’s Supp. Br. Opp. Resp’t’s Mot. That Trial Court Exceeded Its
Authority on Remand at 12 (citing W.R.P. Lake Union Ltd. P’ship v. Exterior Servs.
Inc., 85 Wn. App. 744, 750, 934 P.2d 722 (1977)).
       26   Serv. Emps. Int’l Union Local 925, 193 Wn.2d at 866.
       27For example, some domestic relations cases are not suited to de novo
review of undisputed documents. See In re Marriage of Rideout, 150 Wn.2d 337,
351, 77 P.3d 1174 (2003) (reviewing a trial court’s domestic relations decision for
abuse of discretion despite all evidence being documentary because “‘local trial
judges decide factual domestic relations questions on a regular basis’ and
consequently stand in a better position than an appellate judge to decide” fact-


                                             16
No. 77888-9-I/17


jurisprudence does not compel deference to factual findings by a judicial officer

with no greater insight into the undisputed evidence than we have.

       I agree with the majority that “establishing purposeful availment for the

exercise of personal jurisdiction in stream of commerce cases in Washington state

requires a showing of actual awareness.”28 We must decide whether Special

Electric was actually aware that CertainTeed was distributing concrete pipe

containing Special Electric’s asbestos to Washington state.         And this narrow

question is readily resolved by this court reviewing the undisputed declarations and

documents.

       As acknowledged by the replacement judge, there is no direct evidence that

Special Electric was aware CertainTeed’s asbestos concrete pipe products were

flowing to Washington state.29 And the documents reviewed by Special Electric

did not indirectly reveal that information. The references in CertainTeed’s 1971

annual report showed it operated five asbestos cement pipe plants “coast to

coast,”30 but this merely reflects the location of some of its asbestos cement pipe

plants on the coasts in California and Georgia. The 1977 annual report refers to

distributing pipe “nationwide” with sales in the Southwest and West and strong

demand on the “west coast,” but these are merely general geographic references



intensive domestic relations issues) (quoting In re Parentage of Jannot, 149 Wn.2d
123, 126-28, 65 P.3d 664 (2003) (distinguishing domestic relations cases from
other civil cases and declining to apply de novo review where the trial court’s
decision was based solely on documentary evidence)).
       28   Majority at 11.
       29   Clerk’s Papers (CP) at 687 (finding of fact (FF) 37).
       30   CP at 683-84, 688 (FF 38).


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with no specific reference to Washington state.         And mere aspirations for

nationwide distribution are not adequate for specific jurisdiction based upon the

stream of commerce theory.31 The 1978 CertainTeed annual report refers to use

of asbestos concrete pipe by municipalities in “Pacific states” without indicating

CertainTeed’s share of that market or if municipalities in Washington state were

buying pipe from CertainTeed.32 Nor are other documents compelling. Documents

revealing a close working relationship with Mr. Wareham by virtue of his trips to

South Africa do not show Special Electric’s actual knowledge of CertainTeed’s

sales of asbestos concrete pipe in Washington state. Sales of other CertainTeed

products in Washington state also do not establish awareness of CertainTeed

asbestos concrete pipe sales in Washington state. And there is no evidence that

Special Electric ever saw a 1965 CertainTeed bulletin regarding its sales of pipe

in Washington. Arguably, this evidence could show a supplier should have known

CertainTeed used its asbestos to serve consumers in Washington state, but actual

awareness is required for a court to possess specific jurisdiction over Special

Electric.

       Under these unusual circumstances, this court should independently review

the undisputed declarations and documents and not defer to the replacement

judge. To establish specific jurisdiction, Noll had to establish Special Electric was


       31  Noll v. American Biltrite Inc., 188 Wn.2d 402, 414, 395 P.3d 402 (2017)
(citing J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 888-89, 131 S. Ct.
2780, 180 L. Ed. 2d 765 (2011) (Breyer, J., concurring)); State v. L.G. Electronics,
Inc., 186 Wn.2d 169, 181, 375 P.3d 1035 (2016) (citing J. McIntyre, 564 U.S. at
888-89 (Breyer, J., concurring)).
       32   CP at 991-92, 998 (FF 42).


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actually aware that CertainTeed was distributing asbestos concrete pipe in

Washington state. After reviewing the record, the evidence does not show Special

Electric was actually aware its asbestos was being used by CertainTeed to

construct pipe for distribution in Washington state. Because Noll did not meet her

burden, I would affirm the original trial judge’s decision that there is no basis for

specific jurisdiction.




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