Opinion
No. 64258-8-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-2-32431-1, Laura C. Inveen, J., entered September 4, 2009.
Affirmed by unpublished opinion per Ellington, J., concurred in by Grosse and Schindler, JJ.
Absent a timely motion to strike, objections to the form and admissibility of evidence presented on summary judgment are waived. Because the defendants in this breach of contract and warranty action did not timely object to the plaintiff's evidence, and because the defendants' admissions and the plaintiff's unrebutted evidence demonstrate the absence of any genuine issue of fact, we affirm the order granting the plaintiff's motion for summary judgment.
FACTS
In October 2005, Carl Cook purchased a propane conversion system that enables his car to run on either propane or gasoline. Two years later, Cook experienced problems with the system and contacted its manufacturer, Prins Autogassystemen B.V. Because the system was under warranty, Prins turned the matter over to its United States agent, American Alternative Fuel.
In September 2008, Cook filed suit against Prins and American Alternative Fuel (Prins) for breach of warranty and contract, and for violations of the Consumer Protection Act, ch. 19.86 RCW. The complaint alleged that Prins' conduct caused "poor vehicle performance, increased emissions, almost constant faulting of the vehicle propane system, and . . . damage to the Jeep's electronic and combustion systems." Cook sought $5,366 in "economic damages," as well as penalties, treble damages, attorney fees, and costs.
Clerk's Papers (CP) at 4.
CP at 4.
In March, 2009, the court struck Prins' defenses as a sanction for failing to appear at a scheduled deposition. The court ordered Prins to appear at a rescheduled deposition.
In July 2009, the court found Prins in contempt for failing to attend two noticed depositions, including the deposition that the court had ordered them to attend. The court also found that Prins' responses to Cook's requests for admission were untimely. The court struck the responses and ordered that the requests for admission be "deemed admitted conclusively."
CP at 28.
On July 7, 2009, Cook moved for summary judgment. In a supporting declaration, Cook set forth itemized damages totaling $12,541.04.
On September 2, 2009, two days before the summary judgment hearing, local counsel appeared for Prins and moved to strike or continue the summary judgment motion. Counsel argued that Cook's declaration and motion did not comply with various rules and that Cook had not supported his motion with admissible evidence.
On September 4, 2009, the court held a hearing on Cook's summary judgment motion. Cook stated under oath that the matters set forth in his declaration were true and correct. After denying the defendants' motion to strike or continue as untimely and without good cause, the court ruled in pertinent part as follows:
Due to no fault of Mr. Cook's, someone on behalf of the defendants, a lawyer practicing in the state of New York, has continuously been representing to the court and to Mr. Cook that things would be taken care of, that people authorized to practice law in the state of Washington would get involved in this case. And it only comes down to the last day . .
There have been numbers of depositions set. There has been requests for admissions propounded. Everything I have seen has indicated that Mr. Cook . . . has followed all of the rules. With respect, perhaps, to the one thing that he missed was he didn't say the magic words on his declaration. Ordinarily, I might not have gone to the efforts of placing him under oath today to give us that magic language. But given all of the misconduct on the defendants' side and the delay, I think that it is appropriate to resolve this issue on the merits that are now before me.
I understand and I heard [defendants' counsel's] argument about making a mockery of Rule 56. But frankly, it has been my concern that the defendants in this case have really been attempting a mockery of the court and/or Mr. Cook. I am going to grant the motion for summary judgment. . . .
. . . .
I'm also indicating that this decision is being made not only on the declaration but on the requests for admissions, that are fairly extensive, that this court deemed admitted when they were not properly answered. . . .
. . . .
I am determining that the damages as set out by Mr. Cook in his declaration, which included attached receipts which totaled $12,541, were, in fact, his damages.
Report of Proceedings (RP) (Sept. 4, 2009) at 16-19.
The court's written ruling recited that it considered Cook's motion for summary judgment, declaration and attached receipts, oral oath and testimony at the hearing, and requests for admission "deemed admitted." The court expressly did not consider Prins' pleadings "due to untimely filing." Prins appeals.
CP at 85.
CP at 85.
DISCUSSION
Prins first contends that once the superior court struck the defendants' pleadings, it was required to enter a default judgment rather than summary judgment. This contention is meritless. While the civil rules authorize a default judgment in such circumstances, they do not require one.
See CR 55; CR 37(b)(2).
Alternatively, Prins argues that the court erred in granting summary judgment. We review a summary judgment order de novo, engaging in the same inquiry as the trial court and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005).
CR 56(c); Hearst, 154 Wn.2d at 501.
Prins contends summary judgment was improper because Cook failed to attach exhibits/receipts to the summary judgment motion he served on defense counsel, failed to authenticate those receipts, submitted receipts containing hearsay, and failed to comply with statutory requirements for a proper declaration. These claims of error were not preserved below. "An objection to evidence offered for purposes of summary judgment must be timely." Here, Prins' motion to strike was denied as untimely, and their objections at the summary judgment hearing came too late. Thus, the court properly considered the declaration, receipts and other evidence Cook offered in support of his motion. That evidence, together with the facts deemed admitted, support the ruling on summary judgment.
4 Karl B. Tegland, Washington Practice: Rules Practice, at 377 (2006).
See KCLCR(4)(a); CR 6(d), CR 56(c); Raymond v. Pacific Chemical, 98 Wn. App. 739, 744, 992 P.2d 517 (1999), reversed on other grounds, 143 Wn.2d 349 (2001) (if documents supporting summary judgment do not conform to rules or statutory requirements, "the opposing party must file a timely motion to strike"); Meadows v. Grant's Auto Brokers, Inc., 71 Wn.2d 874, 881, 431 P.2d 216 (1967) (failure to make a timely motion to strike waives any deficiency in affidavits submitted in support of a summary judgment motion).
Raymond, 98 Wn. App. at 744.
Prins argues, however, that a timely objection to any receipts attached to Cook's declaration could not be made because those receipts were not referenced in, or attached to, the summary judgment motion and declaration served on their counsel. This argument fails for several reasons. First, Prins' local counsel's allegation that no receipts were served on Prins' New York counsel is hearsay. Second, even if the issue had been preserved, this court could not address Prins' challenges to the receipts because Prins has not made them a part of the record on appeal. Third, Prins has not assigned error to the court's decision declaring the motion to strike untimely. And finally, any error regarding the receipts was harmless because Cook's declaration and Prins' admission were sufficient by themselves to support the damage award.
The allegation was made in Prins' local counsel's declaration.
Appellants have the burden of providing this court with all portions of the record necessary to review the assignments of error raised on appeal. RAP 9.2(b). The record shows that the receipts were considered by the court on summary judgment. The court listed the "receipts attached to the Declaration of Carl Cook" as part of the evidence it considered on summary judgment. CP at 85. Also, defendants' counsel stated at the hearing, "I have the motion but I don't have everything else attached" and "I see invoices attached." RP (Sept. 4, 2009) at 18, 19.
Once the fact of damage is established, a party seeking damages need only present evidence affording a reasonable basis for estimating the loss. Here, Prins' admissions established that Cook suffered damages "as a result of the product failure" and "as a result of using the product." Cook's unrebutted declaration established that his engine suffered permanent, serious damage, including excessive wear, poor compression, low power, and low fuel mileage. The declaration also recited itemized losses for the cost and installation of the faulty system, and for the removal of the system and replacement of the damaged engine. This evidence was sufficient to establish the fact of damage and a reasonable basis for estimating Cook's loss.
Thomas v. French, 30 Wn. App. 811, 819, 638 P.2d 613 (1981), reversed on other grounds, 99 Wn.2d 95 (1983).
Appellant's Br., Appendix C.
Affirmed.