IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

MUHAMMAD AHSAN and FAIZA AHSAN, 

husband and wife and the marital community 

composed thereof,

No. 51261-1-II

Appellants,

v.

SLOANS ENTERPRISE OF AMBOY, LLC, a 

Washington limited liability company,

UNPUBLISHED OPINION

Respondent.

SUTTON, J. — Muhammad and Faiza Ahsan, pro se, appeal the trial court’s entry of 

judgment in favor of Sloans Enterprise of Amboy LLC following the jury’s verdict. The Ahsans 

argue that Sloans Enterprise’s expert improperly opined on an ultimate issue of fact. Because the 

Ahsans did not object at trial, we determine that they failed to preserve the issue, and thus, we

affirm.

FACTS

The Ahsans filed a negligence action against Sloans Enterprise. The Ahsans alleged that 

Sloans Enterprise caused a mudslide at their house by negligently removing boulders and soil from 

their property during their mitigation/excavation work. Sloans Enterprise denied the allegations

and asserted affirmative defenses.

Filed

Washington State

Court of Appeals

Division Two

June 11, 2019
No. 51261-1-II

2

At trial, both parties presented expert testimony to the jury regarding whether Sloans 

Enterprise breached a duty of reasonable care when it performed landslide mitigation/excavation 

work around the Ahsans’ home. The Ashans’ expert, Mark Swank, an engineering geologist, 

testified that based on the report he prepared, it was not appropriate for Sloans Enterprise to 

perform the excavation work under the conditions that existed on December 12, 2015. He opined 

that Sloan Enterprises excavation work was a “trigger” that caused subsequent soil instability, 

leading to more damage to the Ahsans’ home. 3 Verbatim Report of Proceedings (VRP) (July 12, 

2017) at 483.

John Zipper, a geotechnical engineer, testified as an expert on Sloans Enterprise’s behalf. 

He reviewed Swank’s report and disagreed with his opinions regarding what caused further 

damage to the Ahsans’ home. Zipper opined that the landslide continued to move before and 

during the excavation work, a record setting rainfall triggered the landslide, drainage issues existed 

on top of the hill above the Ashans’ home, the soil was of poor quality, and the whole area slid 

previously in 2006. Zipper opined that the landslide in 2015 would have continued to occur 

regardless of whether Sloans Enterprise performed excavation work on the property and it was 

reasonable for the Ahsans to “at least make some attempt to clear soil from the side of [the] house 

that day.” 3 VRP (July 12, 2017) at 576-77.

Relevant here, defense counsel then asked Zipper:

[Defense counsel]: And was there anything unreasonable then about Mr. Sloan 

going ahead and performing the work that Mr. Ahsan asked him to do?

[Zipper]: No.

3 VRP (July 12, 2017) at 577. The Ahsans did not object.
No. 51261-1-II

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The jury found that Sloans Enterprise had not been negligent. The trial court entered 

judgment in favor of Sloans Enterprise. The Ahsans appeal.

ANALYSIS

The Ahsans were represented by counsel at trial, but are now pro se. The Ahsans assign 

error to Zipper’s testimony that Sloans Enterprise’s actions were not “unreasonable,” arguing that 

his opinion was an improper opinion on the ultimate issue of fact and not admissible. Br. of App. 

at 4. We determine that because the Ahsans did not object below, they failed to preserve the issue 

as to whether Zipper improperly opined on an ultimate issue of fact.

Under RAP 2.5(a), this court “may refuse to review any claim of error which was not raised 

in the trial court.” Further, under ER 103(a)(1):

Error may not be predicated upon a ruling which admits or excludes evidence unless 

a substantial right of the party is affected and

. . . [i]n case the ruling is one admitting evidence, a timely objection or motion to 

strike is made, stating the specific ground of objection, if the specific ground was 

not apparent from the context.

A party may not appeal an error based on a ruling that admits evidence unless a timely 

objection or motion to strike is made. Faust v. Albertson, 167 Wn.2d 531, 547, 222 P.3d 1208 

(2009).

The Ahsans did not object during Zipper’s testimony. Because the Ahsans failed to object 

at trial, thus, they failed to preserve the issue of whether Zipper improperly opined on an ultimate 

issue for appeal. Accordingly, we affirm.
No. 51261-1-II

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A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

SUTTON, J.

We concur:

MAXA, C.J.

MELNICK, J.