§8.6 Analysis

JurisdictionWashington

§8.6ANALYSIS

This section discusses the construction and application of the various requirements of CR 8.

(1) Statement of the claim

CR 8(a) requires a party asserting a "claim" to set forth in a pleading "a short and plain statement of the claim showing that the pleader is entitled to relief ...." This is the essence of notice pleading.

(a) Short and plain statement required

CR 8 abolished the requirement that pleadings seeking administrative relief had to state a "cause of action."

For an explanation of the distinction between "cause of action" and "claim," see Robert Meisenholder, The Effect of Proposed Rules 7 through 25 on Present Washington Procedures, 32 Wash. L. Rev. 219, 232-34 (1957). CR 8(a) requires only a short and plain statement of the claim and the legal grounds upon which it rests. Christensen v. Swedish Hosp., 59 Wn.2d 545, 548, 368 P.2d 897 (1962) (interpreting the equivalent language in Rule of Pleading Practice and Procedure (RPPP) 8). Because CR 8 commands that pleadings are to be liberally construed, as long as a complaint states facts entitling the plaintiff to some relief, it is immaterial by what name the action is called. State v. Adams, 107 Wn.2d 611, 620, 732 P.2d 149 (1987) (citing Christensen, 59 Wn.2d at 548-49). Under notice pleading a specific claim does not have to be listed in the complaint for the plaintiff to gain relief, as long as facts supporting the claim are properly pleaded. Waller v. State, 64 Wn.App. 318, 337, 824 P.2d 1225, review denied, 119 Wn.2d 1014 (1992). Although "inexpert pleading is permitted ..." under CR 8, "insufficient pleading is not." Evergreen Moneysource Mortg. Co.v. Shannon, 167 Wn.App. 242, 256, 274 P.3d 375, 382 (2012). To be sufficient, a "complaint must at least identify the legal theories upon which the plaintiff is seeking recovery." Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn.App. 18, 25, 974 P.2d 847 (1999) (complaint failed to sufficiently plead claim for violation of free speech rights).

(b) Dismissal for failure to state a claim

Dismissal for failure to state an actionable claim is not proper unless there is no set of facts consistent with the pleadings that would entitle the claimant to relief. See Chapter 12 (Rule 12. Defenses and Objections) of this deskbook. Seealso Gorman v. Garlock,Inc., 155 Wn.2d 198, 214, 118 P.3d 311 (2005) (dismissal under CR 12(b)(6) for failure to state a claim is appropriate only when it appears beyond doubt that plaintiffs can prove no set of facts consistent with the complaint that would entitle plaintiff to relief). Failure to identify or develop adequately the legal theory underlying the claim does not subject a complaint to dismissal for failure to state a claim upon which relief can be granted. Orwick v. City of Seattle, 103 Wn.2d 249, 254, 692 P.2d 793 (1984). A court should grant a CR 12(b)(6) motion to dismiss only if the plaintiff cannot prove any set of facts that would justify recovery. Matsyuk v. State Farm Fire & Cas. Co., 173 Wn.2d 643, 662, 272 P.3d 802 (2012). Accordingly, initial pleadings that are unclear may be clarified during the course of summary judgment proceedings. Adams, 107 Wn.2d at 620; Evergreen Moneysource Mortg., 167 Wn.App. at 256.

In determining whether any set of facts consistent with the complaint would entitle plaintiff to relief, the court may consider facts alleged for the first time on appeal. Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995); Gorman v. Garlock, Inc., 121 Wn.App. 530, 538, 89 P.3d 302 (2004), aff'd, 155 Wn.2d 198, 118 P.3d 311 (2005).

Plaintiff's allegations are presumed true and a court may consider hypothetical facts not included in the record. Burton v.Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005); Hipple v. McFadden, 161 Wn.App. 550, 557, 255 P.3d 730, review denied, 172 Wn.2d 1009 (2011). Nonetheless, the rules require all claims to be raised in a complaint or amended complaint, not imported under the guise of hypothetical facts that "bear no relation to the formal complaints" in response to a CR 12(b)(6) motion to dismiss. McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 116, 233 P.3d 861 (2010).

In limited circumstances, insufficiently pleaded claims may be tried by implication. In determining whether parties impliedly tried an issue, the appellate court considers "the record as a whole, including whether the issue was mentioned before the trial and in opening arguments, the evidence on the issue admitted at the trial, and the legal and factual support for the trial court's conclusions regarding the issue." Kirby v. City of Tacoma, 124 Wn.App. 454, 471, 98 P.3d 827, review denied, 154 Wn.2d 1007 (2004) (citing Dewey, 95 Wn. App. at 26). Adefendant's argument that plaintiff failed to plead a claim of recovery will not amount to a trial of that issue. Id. Further, a defendant's attempt to defend against an insufficiently pleaded claim after arguing it was not properly pleaded will not amount to trial of the issue, when its lack of preparation resulted from plaintiff's procedural failures. Id. In the final analysis, the determinative criterion in evaluating whether an issue was tried by implication is whether the opposing party had fair notice of the claim and the grounds on which it rests. Dewey, 95 Wn. App. at 23; Kirby, 124 Wn.App. at 470-71.

(c) Pleading on "information and belief"

Although CR 8(a) does not expressly authorize pleading on "information and belief," CR 11 provides that an attorney's signature on a pleading indicates that he or she has prepared the pleading on the basis of "knowledge, information, and belief."

Prior to the adoption of the civil rules, misuse of the concept of "information and belief" could have been fatal. As succinctly stated by the Washington Supreme Court, "an allegation of fact on information and belief is ordinarily sufficient," while an allegation of information and belief is not sufficient." Barber v. Grand Summitt Mining Co., 11 Wn.2d 114, 129, 118 P.2d 773 (1941) (emphasis in original). The Barber court cited Warburton v. Ralph, 9 Wash. 537, 550, 38 P. 140 (1894), in which the court said "to state that the plaintiff is informed or believes that a particular fact exists would be bad pleading, because it would simply be an allegation of information or belief, as to the fact, and not an averment of the existence of the fact itself." CR 8 and CR 11, however, should have eliminated the distinction drawn by Barber.

(d) Pleading alternative, hypothetical, or inconsistent claims

Subject to the good faith obligations in CR 11, a party may set forth alternative or hypothetical claims for relief as authorized by CR 8(e)(2), regardless of consistency and whether based on legal or on equitable grounds or on both. Dilley v. S & R Holdings, LLC, 137 Wn.App. 774, 780, 154 P.3d 955 (2007) ("[A] party may allege inconsistent theories of liability."). Although these types of claims may be stated in a single count or defense, a party should avoid unnecessary confusion by identifying all possible or alternative claims using separate headings in the complaint.

Alternate, hypothetical, or inconsistent pleading is useful when, prior to discovery, a pleader is unsure what facts will arise and what legal theories may be relevant, particularly when a party must plead hastily to meet statute of limitations requirements or when material information is in the hands of the opponent. Discovery then allows the pleader to amend the complaint to conform to the evidence. See Philip A. Trautman, Pleading Principles and Problems in Washington, 56 Wash. L. Rev. 687, 694 (1981). Moreover, because the rule allows for alternative and inconsistent pleadings, they will not be considered admissions against other pleadings in the same case. Port of Seattle v. Lexington Ins. Co., 111 Wn.App. 901, 919, 48 P.3d 334 (2002).

Technically incorrect pleading of a cause of action will not warrant the dismissal of the entire claim for...

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