       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DONALD CANFIELD,
                                               No. 67274-6-1
                     Appellant/
                     Cross-Respondent,         DIVISION ONE                                o
                                                                                         tr-o
                                                                                         —\CT-
                                                                               •^        C-J
              v.
                                                                                •x^      O'Tl


MICHELLE CLARK and SEATTLE                                                       CO       r-"iiV-
PUBLIC SCHOOLS,
                                               UNPUBLISHED OPINION
                     Respondents/
                     Cross-Appellants.         FILED: May 28, 2013                  en         *^z-




       Becker, J. — Donald Canfield, an electrician with the Seattle Public

Schools, was demoted after the school district investigated a coworker's

allegation that Canfield carried a gun on school property. An arbitration resulted

in his reinstatement. His defamation suit against the coworker was dismissed on

summary judgment. We reverse that ruling. A reasonable jury could find that the

coworker made statements that were unprivileged and false. The dismissal of

Canfield's claims against the school district is affirmed.


                                       FACTS

       Canfield began working for the Seattle school district as a maintenance

electrician in 1992. He became foreman of the district's electrical shop in 2001.
No. 67274-6-1/2



Some of Canfield's subordinates complained that he had an intimidating manner,

but Canfield was not disciplined.

       In August 2007, the district hired Michelle Clark to work in the electrical

shop as a fire alarm technician. Canfield suggested Clark for the position.

Canfield had previously worked with Clark on electrical contract jobs, and they

were social acquaintances. In early December 2007, Clark complained to Auki

Piffath, her carpool partner from a different maintenance trade, about a particular

incident when Canfield had gotten angry with her at work. Clark said she was

concerned because she knew that Canfield carried a gun. She told Piffath that

years before her employment at the school district, she had seen Canfield pull a

gun from his pocket soon after he had walked off school district property.

       Piffath reported Clark's statements to district management. The next day,

a member of the human resources department, Jeanette Bliss, contacted Clark.

Clark repeated her remarks about Canfield to Bliss. She added that Canfield,

while at work, had recently confirmed that he was still carrying a gun.

       Police were called to the school. Canfield was publicly escorted off school

property by police officers. He was placed on paid administrative leave.

       Bliss interviewed Canfield, Clark, and several other maintenance

employees. Canfield insisted that he never brought a gun onto school property.

Several employees told Bliss they were aware Canfield owned guns, but none

reported seeing Canfield carrying a gun on school property. Bliss concluded

Canfield had harassed his employees and created a hostile work environment.
No. 67274-6-1/3



She recommended that he be terminated. The district decided instead to demote

him out of his foreman position. His pay was reduced, a written reprimand was

added to his personnel file, and he was required to participate in anger

management counseling.

       Canfield's union filed a grievance on his behalf. After a two-day hearing in

September 2009, the arbitrator sustained his grievance. The arbitrator found the

school district's evidence had "certain significant defects," and Clark's initial gun

allegation did "not appear to have had substance." The arbitrator lifted the

demotion, awarded Canfield back wages, and converted the written reprimand to

a documented oral warning, the lowest level of progressive discipline.

       Canfield then sued Clark for defamation, outrage, and negligent infliction

of emotional distress. Several months later, he filed a separate suit against the

school district alleging retaliation, civil conspiracy, and a statutory wage claim,

among other claims. The two lawsuits were consolidated, Clark and the school

district were jointly represented, and both defendants moved for summary

judgment. Canfield's claims against Clark and his wage claim against the district

were dismissed. He was allowed to go to trial against the district on his claims of

retaliation and civil conspiracy. After a nine-day trial in July 2011, the jury found

for Canfield on the retaliation claim and awarded him $500,000. The trial court

overturned the verdict on the school district's motion for judgment as a matter of

law under Civil Rule 50. Canfield appeals.
No. 67274-6-1/4



                                  DEFAMATION


       Canfield contends the court erred by dismissing his defamation claim

against Clark on summary judgment.

       This court reviews summary judgment orders de novo, engaging in the

same inquiry as the trial court. Mohr v. Grant, 153Wn.2d 812, 821, 108 P.3d

768 (2005). Summary judgment is proper if the evidence shows there is no

genuine issue of material fact, and the moving party is entitled to judgment as a

matter of law. CR 56(c). Construing the evidence in the light most favorable to

the nonmoving party, the court asks whether a reasonable jury could find in favor

ofthatparty. Mohr, 153 Wn.2d at 821.

       Summary judgment "plays a particularly important role in defamation

cases" because permitting unwarranted defamation suits to proceed to trial can

chill speech protected by the First Amendment. Mohr, 153 Wn.2d at 821.

Competing with these free speech concerns is society's "'pervasive and strong

interest in preventing and redressing attacks upon reputation.'" Mohr, 153 Wn.2d

at 821 n.5, quoting Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S. Ct. 669, 15 L Ed.

2d 597 (1966). The plaintiff in a defamation suit must prove falsity, an

unprivileged communication, fault, and damages. Due Tan v. Le, No. 86021-1,

slip op. at 12 (Wash. May 9, 2013). To withstand summary judgment, the plaintiff

must show a genuine dispute as to each element. Mohr, 153 Wn.2d at 822.
No. 67274-6-1/5



       A. Falsity

       In sworn testimony, Clark did not deny making statements to school

district employees that she had seen Canfield carrying a gun on school property.

She admitted telling several people about the long-ago incident when she claims

she saw Canfield take a gun from his pocket soon after stepping off of district

property. Bliss testified that Clark also told her that after she began working with

Canfield at the school district, she once asked him if he still kept a gun on him,

and that he responded by saying "yes," it was in his pants. Clark admitted telling

Piffath and Bliss about seeing Canfield's gun cabinet at his house—in Bliss's

notes of the interview, Clark called it "an arsenal."

       Clark also admitted making statements about Canfield's gun possession

to other school employees, including Jessie Logan and Bill Wickersham, while

Canfield was on administrative leave. Logan's declaration reports that Clark

definitely said she saw Canfield carrying a gun at school:

       She started talking to one of the teachers at an elementary school
       we went to about Don carrying a gun and having such a terrible
       temper. When I overheard this I asked Michelle, "Did you say that
       this guy, 'Don,' was carrying a gun on the school district's
       property?" She told me that he carried a gun and never took it off
       his body. I asked her if she ever actually SA W the gun on him at
       the school district shop and she told me, "Yes, I was in the
       electrical shop one day when he was there. I saw it on him." I was
       flabbergasted.
               From the way she was talking about him, I really believed he
       was a potential mass killer. Michelle explained what had happened
       in the electrical shop just months before I took the call. She said
       that "Don" went off on her and became very violent on the job, and
       that it took a SWAT team to remove him from the school district
       shop. She said that nobody could stand him (not even the teachers
       in the schools) and that everybody was just glad that he was gone
       and thanked her for "getting rid of him." She told me that "Don" was
No. 67274-6-1/6



       currently on paid administrative leave while the school district could
       figure out a way to fire him.

(Emphasis added.) Although Clark testified that she believed Logan was

exaggerating, she did not deny the substance of Logan's remarks. She admitted

that until someone at the school district instructed her not to talk about Canfield's

gun possession, she "didn't have an issue talking about it... . Don's name came

up a lot, yes."

       In his arbitration testimony, Canfield denied ever bringing a gun on school

district property: "Never, never. Wouldn't think of it. ... I know the laws. I have

a concealed weapons permit." He also denied Clark's account of the incident

from years before. Canfield testified that the outing in question was on a

Saturday, Clark picked him up at his home and drove him to the store, they did

not park on or enter school district property, and he decided to bring a gun with

him for "protection" because the store was not in a good part of town. In his

declaration filed in opposition to summary judgment, Canfield reaffirmed his

arbitration testimony as being "true and correct." Canfield's insistence that he

never carried a gun on school property creates a genuine dispute as to the truth

or falsity of Clark's statements about him. See Lawson v. Boeing Co.. 58 Wn.

App. 261, 267, 792 P.2d 545 (1990) ("On summary judgment we must assume

that the statements were false, since they are denied in [the plaintiffs] affidavit."),

review denied, 116Wn.2d 1021 (1991).

       A defendant in a defamation case need not prove the literal truth of every

statement, so long as the "gist" of the statements or the portion that carries the
No. 67274-6-1/7



"sting" is true and the false statements do not cause any separate or additional

harm. Mohr, 153 Wn.2d at 825; Due Tan, slip op. at 17-18. Clark contends her

statements were all "substantially true" because they were all corroborated by the

common understanding among electrical employees that Canfield habitually

carried a gun.

       Clark's argument fails. The "sting" of Clark's statements was not the mere

fact that Canfield habitually possessed guns. Gun possession is generally a

lawful activity. The portion that carried the "sting" and did harm to Canfield's

reputation was the allegation that he carried guns with him onto school property.

Such an action would violate state law, see RCW 9.41.280, as well as school

district policy. It was this allegation that gave the school district grounds for

having Canfield escorted off of school property by armed police, for placing him

on an indefinite period of administrative leave, and for investigating him over a

period of several months.

       Bliss's interview notes recorded a statement that "Anyone who knows Don

knows that he carries his gun everywhere he goes." Clark also cites the

declarations of Piffath, Bill Wickersham, and Jeff Hilliard to show that it was

common knowledge Canfield carried a gun on school property. This evidence

amounts to little more than vague reports of hearsay by unnamed coworkers.

The declarations provide no personal knowledge that Canfield ever carried a gun

on school property. Bill Wickersham was the only one who actually saw Canfield

with a gun, but Wickersham was indefinite as to when or where this occurred.



                                             7
No. 67274-6-1/8



         Clark's argument that her remarks were all "substantially true" also fails

because at her deposition, she admitted the statement she made to Logan was

false.


         Q: . . . Did you ever - during the time that you worked at the school
         district, did you ever see Mr. Canfield carrying a gun on school
         property?
         A: No.
         Q: Did you ever ask him, Mr. Canfield, if he had a gun on school
         property during the time that you worked there?
         A: I don't know. I don't remember.
         Q: Okay. Do you ever recall Mr. Canfield showing you a gun on
         his person while he was working at Seattle School District during
         the time you worked there?
         A:   No.


         Q: . .. Is this a false statement: Thatyou saw Mr. Canfield
         carrying a gun on his person while working at Seattle Public
         Schools during the time you were employed there?

         A:   That would be a false statement.

(Emphasis added.)

         B. Privilege

         A conditional or qualified privilege can attach to otherwise slanderous

statements made to a third person "who has a common interest in the subject

and is reasonably entitled to know the information." Pate v. Tvee Motor Inn. Inc.,

77 Wn.2d 819, 820-21, 467 P.2d 301 (1970); see also Corballv v. Kennewick

Sen. Dist.. 94 Wn. App. 736, 973 P.2d 1074 (1999). Although the common

interest privilege has been applied to communications between employees, the

privilege is lost ifthe statements go beyond the ordinary course of the

employees' work. Doe, 143 Wn.2d at 703.



                                              8
No. 67274-6-1/9



       Piffath was a union steward for the school district. Clark claims her

statement to Piffath was privileged because she was reaching out for help from

someone whose job it was to be concerned. A jury, however, would not have to

accept this characterization of Clark's motivations. Clark testified that she talked

to Piffath because he was her carpool partner. Piffath confirmed his belief that

Clark's remarks about Canfield were made in the course of "just casual

conversation" during the commute home, and not as a report related to her

employment with the school district.

       Also, a conditional privilege may be abused and its protection lost if the

person made the statement with knowledge of—or by exercising reckless

disregard for—the probable falsity of the defamatory matter. Hitter v. Bellevue

Sch. Dist. No. 405, 66 Wn. App. 391, 401, 832 P.2d 130, 120Wn.2d 1013

(1992); Due Tan, slip op. at 20. Even if a privilege did apply to Clark's remarks to

Piffath, a jury could conclude she lost it through abuse if the stories she told were

knowingly false or told with a reckless disregard for its probable falsity. As to the

story from years before that Clark relayed to Piffath, the record presents

numerous variations. Canfield adamantly refutes Clark's version. This dispute

calls into question the veracity of the version Clark recounted to Piffath. It is a

credibility question for a jury to decide whether Clark's version was false,

knowingly false, or told with a reckless disregard for its probable falsity.

       Clark's reports to Bliss and other individuals in management arguably

could invoke the common interest privilege. Bliss was a member of the human
No. 67274-6-1/10



resources department charged with addressing employee concerns. An

employee's complaints that a supervisor is intimidating employees and carrying a

gun to school is plainly a matter of common interest to the school district.

       But the possibility of abuse hovers around certain of Clark's statements to

Bliss as well. Clark told Bliss about the contested incident from years before

which, as discussed above, could have been a knowingly false statement. Clark

also told Bliss about a conversation when Canfield allegedly told Clark he was

carrying a gun at work "in his pants." Whether such a conversation with Canfield

ever occurred must be left to a jury, given Clark's inconsistent testimony on

cross-examination concerning these remarks and Canfield's denial. Cf. Lambert

v. Morehouse, 68 Wn. App. 500, 506-07, 843 P.2d 1116 (a person who

complains about harassment necessarily has knowledge of whether the

complaints are true or false), review denied. 121 Wn.2d 1022 (1993). Because

Clark described statements she claims she heard Canfield make and actions she

claims she saw Canfield take, if her reports were false, they were knowingly

false. In such a case, whether she abused a privilege is an issue of fact for the

jury, which must decide whether or not Clark was telling the truth. Lambert. 68

Wn. App. at 507.

       In any event, no privilege applied to Clark's remarks to her coworker

Logan. Logan had nothing to do with Canfield's investigation or the disciplinary

process. Logan had never met Canfield when she heard Clark talk about seeing

Canfield with a gun in the electrical shop. A jury could find that these remarks by


                                            10
No. 67274-6-1/11



Clark were not within the ordinary course of Clark's and Logan's electrician work.

       C. Fault


       If Canfield is a private individual, he must demonstrate that Clark made

her false statements negligently. Hitter, 66 Wn. App. at 400. If Canfield is a

public figure, he must demonstrate by clear and convincing evidence that Clark

made her remarks with actual malice. Corballv, 94 Wn. App. at 741; Due Tan,

slip op. at 20. Whether the plaintiff is a private individual or a public figure is a

question of law for the court to decide. Valdez-Zontek v. EastmontSch. Dist. 154

Wn. App. 147, 159, 225 P.3d 339 (2010). Clark contends Canfield is a public

figure since he held a position of authority in the electrical shop and he worked

for a public entity. She cites Corballv, where the court ruled a public school

teacher was a public official for purposes of his defamation lawsuit since his

conduct "involved the manner in which he performed his teaching duties pursuant

to public contract." Corballv, 94 Wn. App. at 741.

       We need not now resolve whether or not Canfield should be deemed a

public or private figure. Even if Canfield is held to the higher fault standard of

actual malice, he has shown a genuine dispute of fact as to Clark's fault. As

noted above, Clark admitted that at least one of the statements reported by

Logan was false. If so, it was "unquestionably knowingly false." Lawson. 58 Wn.

App. at 267. At trial, the court will decide as a threshold matter whether Canfield

was a private individual or a public figure.




                                               11
No. 67274-6-1/12



       D. Damages

       That Canfield suffered damages is undisputed in this appeal. Damages

for emotional distress are available in defamation suits. Cagle v. Burns & Roe.

Inc.. 106 Wn.2d 911, 915-18 & n.1, 726 P.2d 434 (1986).

       Having raised a genuine dispute of fact as to the challenged elements of

defamation, Canfield is entitled to a jury trial.

       Canfield also assigns error to the court's summary judgment dismissal of

his outrage claim against Clark. He advances no argument as to that claim in his

briefs, however. We treat this assignment of error as abandoned.



                              PREVAILING WAGE ACT

       Canfield made a wage claim against the district based on chapter 39.12

RCW, commonly referred to as the prevailing wage act. He appeals the

summary dismissal of this claim. The issue raised is one of statutory

interpretation, which we review de novo. Litchfield v. KPMG, LLP. 170 Wn. App.

431,437, 285 P.3d 172 (2012).

       As a regular employee of the school district, Canfield sometimes worked

on school building projects alongside workers hired by private contractors. Such

contractors are required to pay the prevailing hourly wage to the "laborers,

workers, or mechanics" they hire to perform under contracts. RCW 39.12.020.

Canfield complained to the district on various occasions that he and his crew

were likewise entitled to receive the prevailing wage when they collaborated on



                                              12
No. 67274-6-1/13



these projects with the private laborers.

       The statute expressly excludes regular public employees from its

coverage:


       The hourly wages to be paid to laborers, workers, or mechanics,
       upon all public works and under all public building service
       maintenance contracts of the state or any county, municipality or
       political subdivision created by its laws, shall be not less than the
       prevailing rate of wage for an hour's work in the same trade or
       occupation in the locality within the state where such labor is
       performed. . . .

               This chapter shall not apply to workers or other persons
       regularly employed by the state, or any county, municipality, or
       political subdivision created by its laws.

RCW 39.12.020 (emphasis added).

       Canfield's brief makes a policy argument that the school district "should

not be allowed to circumvent the laws by allowing contractors on public works

projects to utilize its employees," and thereby avoid paying the higher prevailing

wage. This hint at some type of conspiracy to lower wages finds no clear support

in the record. Nor is it supported by any citation to legal authority. Canfield's

other arguments on this issue are similarly unsupported. The language of the

statute unambiguously defeats them. The trial court did not err in dismissing the

prevailing wage claim.


                               RETALIATION CLAIM


       The only claims by Canfield that went to the jury were his claims of

retaliation and civil conspiracy against the district. Canfield alleged, in essence,

that the gun investigation was a sham concocted to retaliate against him for


                                            13
No. 67274-6-1/14



complaining that he and his workers should be paid prevailing wages.

       The school district moved for summary judgment on the retaliation claim

on the basis that no Washington statute protects employees from retaliation for

complaining about prevailing wages. Under CR 50, the district moved again for

dismissal of the claim at the close of Canfield's evidence. The trial court denied

the motion and allowed the jury to deliberate. The jury brought in a verdict for

Canfield on the retaliation claim and awarded him $500,000. The district then

renewed the CR 50 motion. The trial court granted the motion, leaving Canfield

with no recovery. Canfield appeals this ruling.

       The issue comes to us on a stipulated record that contains an excerpted

transcript of the colloquies on the CR 50 motion and its renewal. The appellate

record does not contain a transcript of the trial itself.

       The Minimum Wage Act, chapter 49.46 RCW, is the only Washington

wage statute containing an express anti-retaliation provision. The Minimum

Wage Act makes an employer guilty of a gross misdemeanor "who discharges or

in any other manner discriminates against any employee because such

employee has made any complaint to his or her employer... that he or she has

not been paid wages in accordance with the provisions of this chapter." RCW

49.46.100(2).

       Canfield argues that the anti-retaliation provision of the Minimum Wage

Act is equally applicable to workers who make wage complaints under other

wage statutes, such as the prevailing wage act. The trial court correctly rejected



                                              14
No. 67274-6-1/15



this interpretation of the statute. The court's primary purpose in interpreting a

statute is to ascertain and give effect to the legislature's intent. Litchfield. 170

Wn. App. at 437. Ifa statute's meaning is plain on its face, the court gives effect

to that plain meaning. Litchfield, 170 Wn. App. at 437.

       The anti-retaliation provision in the Minimum Wage Act specifies that the

wage complaints protected from retaliation are complaints that a worker has "not

been paid wages in accordance with the provisions of this chapter." RCW

49.46.100 (emphasis added). Complaints related to prevailing wage entitlements

under RCW 39.12.020 fall outside that limiting language.

       Other statutes relating to employment contain specific language protecting

against retaliation. See^e^, RCW 51.48.025(1); RCW 49.60.210; and RCW

41.80.110(1 )(d). The legislature could have easily included such language in the

prevailing wage act, but it did not. Individual provisions of the Minimum Wage

Act cannot be parceled out and exported into other statutes in entirely separate

titles of the RCW. The function of the Minimum Wage Act is to establish the

minimum wage and minimum standards of employment. See Seattle Prof I Eng'g

Emps.Ass'n v.Boeing Co., 139 Wn.2d 824, 835, 991 P.2d 1126, 1 P.3d 578

(2000). The prevailing wage act has a different function. The trial court correctly

concluded that Canfield's claim of retaliation lacked a statutory basis.


                                   CIVIL RULE 50

       The judge who presided over the trial of the retaliation claim, and then

granted the CR 50 motion, was not the same judge who denied the district's

                                              15
No. 67274-6-1/16



pretrial motion for summary judgment on the same legal issue. Canfield

contends the decision of the first judge must be given effect, and the judge who

presided over the trial lacked authority to reach a different conclusion about the

meaning of the various statutes. We disagree. A transfer of judges has no legal

effect, and an interlocutory decision can be corrected by a different judge before

a final judgment is rendered.

       [T]he succession of judges cannot be considered by this court; the
       office is a continuing one; the personality of the judge is of no legal
       importance. The action of [a subsequent judge, reversing his
       predecessor's ruling] was in legal effect a correction of his own
       action, which he deemed to have been erroneous; and it were far
       better that he should correct it, than to perpetuate an error which
       would have to be corrected by this court.

Shephard v. Gove. 26 Wash. 452, 454, 67 P. 256 (1901).

       Canfield also argues it was procedurally inappropriate for the court to

decide the validity of the retaliation claim under CR 50. He contends CR 50

motions are confined to situations where the evidence at trial is factually

insufficient and that it may not be used to decide that a claim is legally

insufficient.

       Granting a motion for judgment as a matter of law is appropriate when,

viewing the evidence most favorable to the nonmoving party, the court can say,

as a matter of law, there is no substantial evidence or reasonable inference to

sustain a verdict for the nonmoving party. Sing v. John L. Scott. Inc., 134 Wn.2d

24, 29, 948 P.2d 816 (1997). Often, the question concerns the sufficiency of the

evidence viewed in the light most favorable to the nonmoving party. But the



                                             16
No. 67274-6-1/17



reach of CR 50 is not confined to factual insufficiency. "A judgment as a matter

of law may also be appropriate when, instead of the evidence being insufficient,

the plaintiffs right to recovery (or the defendant's defense) is barred by a statute

or other applicable law." 4 Karl B. Tegland, Washington Practice: Rules

Practice CR 50 author's cmt. 1, at 213 (6th ed. 2013). The rule permits a party

to move for judgment as a matter of law where "there is no legally sufficient

evidentiary basis for a reasonable jury" verdict. CR 50(a)(1) (emphasis added).

There cannot be a legally sufficient evidentiary basis to support a nonexistent

statutory claim.

       In that sense, the district's CR 50 motion did ultimately rest on an

argument that Canfield's evidence was insufficient. A statutory claim of

retaliation under the Minimum Wage Act would have required evidence that

Canfield complained about not receiving minimum wages or overtime. Canfield's

only complaints were about not receiving the prevailing wage.

       The court's instructions informed the jury that a worker has a valid claim

for retaliation based on making a complaint about prevailing wages. Canfield

argues in his reply brief on appeal that the court's CR 50 ruling dismissing that

claim was legal error because it contradicted the law as stated in the jury

instructions. Once the court read the instructions to the jury, he contends, the

school district lost its right to raise purely legal challenges.

       This argument was raised too late. "An issue raised and argued for the

first time in a reply brief is too late to warrant consideration." Cowiche Canyon



                                               17
No. 67274-6-1/18



Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549(1992). The jury

instructions were not made part of the record on appeal until the day after

Canfield filed his reply brief. The record is also incomplete. The school district's

proposed instructions and the jury instruction colloquy were never made part of

the record on appeal.

       A reply brief is limited "to a response to the issues in the brief to which the

reply brief is directed." RAP 10.3(c). The district correctly notes that Canfield's

inclusion of a new argument in his reply brief, and his belated attempt to submit

the jury instructions for our review, are violations of the appellate rules. To that

extent, we grant the district's motion to strike. This ruling affords the district

sufficient redress for the rule violations. Its request for sanctions is denied.

       Canfield's new argument would fail on the merits even if it could be

considered. Jury instructions, once announced by the court, become the "law of

the case." Guiiosa v. Wal-Mart Stores, Inc.. 144 Wn.2d 907, 917, 32 P.3d 250

(2001). But the law as pronounced in the jury instructions is not binding on

questions of law raised later in a motion for a directed verdict. Kim v. Dean, 133

Wn. App. 338, 349, 135 P.3d 978 (2006); Rhoades v. DeRosier. 14 Wn. App.

946, 948 n.2, 546 P.2d 930 (1976). "Whether a verdict should have been

directed is a question of law, and its resolution is not controlled by the

pronouncements of the instructions, but by the applicable law." Rhoades, 14 Wn.

App. at 948 n.2. This same rationale controls where, as here, the question of law

is raised in a CR 50 motion for judgment as a matter of law. Motions for directed



                                              18
No. 67274-6-1/19



verdict and motions for judgment notwithstanding the verdict were renamed

'"motions for judgment as a matter of law'" effective September 17, 1993.

Guiiosa,144 Wn.2d at 915, quoting Litho Color, Inc., v. Pac. Emp'rs Ins. Co.. 98

Wn. App. 286, 298 n.1, 991 P.2d 638 (1999).

       Canfield claims that a CR 50 ruling cannot undo the law set forth in jury

instructions to which no objection was made, relying for this proposition on

Washburn v. City of Federal Way, 169 Wn. App. 588, 283 P.3d 567 (2012),

review granted. 176Wn.2d 1010(2013). But Washburn is not on point because

this court disregarded the CR 50 argument as not preserved. Washburn. 169

Wn.App. at 592, 614.

       We reverse summary judgment as to the defamation claim. In all other

respects, the judgment of the trial court is affirmed.




WE CONCUR:




 Wy^6*-,AC.X




                                             19
