Opinion
No. 29205-3-III.
Filed: June 14, 2011. Unpublished Opinion
Appeal from a judgment of the Superior Court for Spo-kane County, No. 08-2-05646-0, Annette S. Plese, J., entered June 15, 2010.
Affirmed by unpublished opinion per Brown, J., concurred in by Korsmo, A.C.J., and Siddoway, J.
Raymond Dushey and the marital community of Jeannine and Mr. Dushey (the Dusheys) appeal the trial court's summary dismissal of their complaint against Fidelity National Title Group (Fidelity). The Dusheys claim Fidelity allowed Ms. Dushey to forge Mr. Dushey's signature. The Dusheys contend the trial court erred in striking their experts' declarations as a discovery sanction and granting summary dismissal of their complaint because material fact issues remain regarding whether Mr. Dushey's signature was forged and whether damages were suffered. We affirm.
FACTS
On October 25, 2006, Fidelity's employee, Marie York, closed the Dusheys' real property refinance loan, leaving them $47,321.13. The funds were deposited into Mr. Dushey's bank account and spent on personal needs, including real property improvements. The closing documents purport to bear the signatures of Mr. Dushey and Ms. Dushey. Mr. Dushey asserts he did not sign the documents. He claims Ms. Dushey forged his signature.
In December 2008, the Dusheys, but not Ms. Dushey, sued Fidelity for negligence. The Dusheys allege Ms. York, as Fidelity's agent, breached her duty of ordinary care by failing to secure Mr. Dushey's signature. Mr. Dushey claimed he was unaware of the transaction until December 2007, and Ms. Dushey forged his name. Discovery revealed Ms. Dushey's memory of the events is vague, but she supports Mr. Dushey's theory by declaring she persuaded Ms. York to allow her to take the loan documents for Mr. Dushey's signatures; Ms. York denied those assertions and declared the documents were properly signed and notarized in her presence with copies of the signers' driver's licenses taken for identity verification. Fidelity's file contains photo copies of Mr. and Ms. Dushey's driver's licenses.
On April 10, 2009, the trial court issued a case scheduling order, setting specific deadlines in the case and a trial date of March 8, 2010. The deadline for the Dusheys to disclose witnesses was August 10, 2009. The cutoff date to request a continuance of the trial date was December 14, 2009. The discovery cutoff was January 4, 2010.
On June 8, 2009, Fidelity moved to compel answers to its first set of interrogatories and requests for production. The request had been served in January, and Fidelity had sent the Dusheys' counsel a letter in May asking for the responses. The Dusheys provided responses on June 23, 2009. Interrogatory 8 requested the Dusheys to identify any experts and the opinions of those experts. The Dusheys responded: "Retained expert's objection. This is beyond the scope of discovery rules. It has not been determined if plaintiff will call an expert." Clerk's Papers (CP) at 231. Interrogatory 10 asked the Dusheys to identify persons with knowledge about the facts alleged in the lawsuit. The Dusheys responded as follows: "The closing agent-defendants employee Mrs. Dushey." CP at 232. The Dusheys did not supplement their responses until February 2010.
Fidelity timely filed and served its witness disclosure in October 2009, partly specifying: "Defendant objects to any witnesses identified by Plaintiff as a witness disclosure has not been filed." CP at 27.
On November 24, 2009, Fidelity moved again to compel discovery. Fidelity had filed its second set of interrogatories and requests for production in September and had asked the Dusheys' attorney for responses on several occasions in October and November. On December 18, 2009, the court ordered the Dusheys to provide complete responses to Fidelity no later than December 23. Additionally, the Dusheys were ordered to pay costs to Fidelity in the amount of $200.
On January 14, 2010, Fidelity moved for summary judgment. Fidelity partly relied on Ms. York's affidavit indicating she had never notarized documents in a closing without having proper identification or without the presence of the signing party, and that she did not do so in the Dusheys' case.
The summary judgment hearing was set for February 12. Under Spokane County Local Rule 56, the Dusheys' response was due February 1. No response was filed. On February 2 and 3, the Dusheys' attorney contacted Fidelity's attorney to request additional time to respond. At an emergency hearing on February 4, the Dusheys requested and received a continuance of the summary judgment motion until February 23, in order to file a response. The court ordered the Dusheys to respond to the summary judgment motion by February 15.
On February 4, the Dusheys filed a witness list identifying John Montgomery as an expert concerning the duty of care for notaries. The Dusheys provided a report dated December 21, 2009 from Mr. Montgomery in response to discovery. On February 12, the Dusheys filed an amended witness list identifying Robert Floberg as an expert in handwriting analysis. Mr. Floberg was hired as an expert on February 11. On February 15, the Dusheys filed a response to the summary judgment motion which included the declarations of Mr. Floberg and Mr. Montgomery.
On February 10, the Dusheys filed Ms. Dushey's declaration in opposition to Fidelity's summary judgment motion, saying she forged her husband's signature and explaining how she managed to do that contrary to her deposition in August 2009, when she stated she was not sure whether she signed her husband's name, but "assume[s]" she did and she was not sure if she signed the documents in the parking lot. CP at 171. On February 19, the Dusheys filed a motion and memorandum regarding striking the expert witnesses and declarations. On February 22, Fidelity filed its reply and moved to strike the declarations of Mr. Montgomery and Mr. Floberg.
At the hearing on February 23, the Dusheys' counsel explained he had not retained or filed an amended experts' list because he thought the case was going to settle. The trial court struck the declarations as well as the Dusheys' memorandum and granted summary judgment for Fidelity. The court denied reconsideration. The Dusheys' appealed.
ANALYSIS A. Discovery Sanction
The issue is whether the trial court erred in striking the declarations of the Dusheys' expert witnesses. The Dusheys contend they had a reasonable excuse for failing to file the witness list in a timely manner and that striking the expert declarations and accompanying memorandum was an abuse of discretion.
"A trial court exercises broad discretion in imposing discovery sanctions . . . and its determination will not be disturbed absent a clear abuse of discretion." Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). A trial court's ruling on a motion to strike is reviewed for an abuse of discretion. King County Fire Prot. Dist. No. 16 v. Hous. Auth. of King County, 123 Wn.2d 819, 826, 872 P.2d 516 (1994).
Though we review summary judgments de novo, Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998), this discovery challenge is reviewed for an abuse of discretion. A court abuses its discretion when its decision is arbitrary, manifestly unreasonable, or based on untenable grounds. City of Bellingham v. Chin, 98 Wn. App. 60, 66, 988 P.2d 479 (1999).
The trial court based its decision on CR 26 and the local rules of the Spokane County Superior Court. Under CR 26(b)(5)(A)(i), a party must provide information concerning an expert witness that will be called at trial if requested by interrogatories. And under CR 26(b)(5)(A)(ii), a party may depose each person whom any other party expects to call as an expert witness at trial. Under the local rules, the court shall issue a case scheduling order at the status conference. LAR 0.4.1(d). The case scheduling order sets the time period between filing and trial, and deadlines for the case. LAR 0.4.1(d). Failure to comply with the case schedule orders may be grounds for imposition of sanctions, including dismissal, or terms. LAR 0.4.1(g)(1). The rules further provide that if the court finds that an attorney has failed to comply with the case schedule order without reasonable excuse, the court may impose monetary sanctions or sanctions as justice requires. LAR 0.4.1(g)(3). "Other sanctions" include, but are not limited to, the exclusion of evidence. LAR 0.4.1(g)(4).
The Dusheys do not dispute noncompliance with the case scheduling order. "If a trial court imposes one of the 'harsher remedies,' . . . then the record must clearly show (1) one party willfully or deliberately violated the discovery rules and orders, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed." Magana v. Hyundai Motor Am., 167 Wn.2d 570, 584, 220 P.3d 191 (2009) (quoting Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997)).
"'A party's disregard of a court order without reasonable excuse or justification is deemed willful.'" Magana, 167 Wn.2d at 584 (quoting Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 686-87, 41 P.3d 1175 (2002)). The court found the Dusheys willfully violated the discovery rules, reasoning, "A belief by the attorney that the case might settle does not create a reasonable excuse for noncompliance." CP at 862. Even if settlement negotiations were ongoing, the record shows Fidelity complied with the order and repeatedly requested the Dusheys' compliance. The court's reasoning is thus tenable. Therefore, the court reasonably rejected the Dusheys' excuse and properly found the discovery violation willful.
Turning to prejudice, we look to whether Fidelity was prejudiced in preparing for trial. Magana, 167 Wn.2d at 589 (citing Burnet, 131 Wn.2d at 494). Trial was set for March 8, 2010. The Dusheys disclosed Mr. Montgomery as an expert witness on February 4, and Mr. Floberg as an expert witness on February 12. The Dusheys filed the declarations of Mr. Montgomery and Mr. Floberg on February 15. The Dusheys did not seek to continue the trial date until February 23. The cutoff date to request such a continuance date was December 14, 2009. From these facts, the trial court could reasonably conclude Fidelity was prejudiced in its trial preparation because the timeline simply did not allow Fidelity to depose both expert witnesses and then prepare for trial.
When considering lesser sanctions, a court's discovery sanction should be proportional to the discovery violation and the circumstances of the case. Id. at 590 (citing Burnet, 131 Wn.2d at 496-97). The least severe sanction that will still serve the purpose of having sanctions should be imposed. Id. (citing Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 355-56, 858 P.2d 1054 (1993)). The sanction must not, however, be so minimal that it undermines the purpose of discovery or allows the wrongdoer to profit from the wrong. Id.
The Dusheys argue a warning alone should have been sufficient. But a warning would have allowed the Dusheys to benefit from their late filings. The trial court found no lesser sanction would suffice under the circumstances "in light of the time left before trial, . . . the continued violations[, and] the extreme prejudice to [Fidelity]." CP at 862. Considering Fidelity's repeated discovery requests, and temporal circumstances of the late discovery, we conclude the trial court did not abuse its discretion in striking the late declarations as a sanction. While the trial court struck the Dusheys' late-discovery memorandum, the court clearly considered the included arguments and authority before imposing sanctions.
B. Summary Judgment
The issue is whether the trial court erred in summarily dismissing the Dusheys' negligence claim. The Dusheys contend genuine issues of material fact remain regarding breach and damages. We review a trial court's summary judgment grant de novo, engaging in the same inquiry as the trial court. Barker v. Advanced Silicon Materials, LLC, (ASIMI), 131 Wn. App. 616, 623, 128 P.3d 633 (2006).
Summary judgment is proper if no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. CR 56(c). "A material fact is one that affects the outcome of the litigation." Owen v. Burlington N. Santa Fe R.R., Co., 153 Wn.2d 780, 789, 108 P.3d 1220 (2005). When considering a summary judgment motion, the court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The motion should only be granted if, from all the evidence, reasonable persons could reach but one conclusion. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
The moving party bears the initial burden of showing the absence of an issue of material fact; once the defendant meets this initial showing, the inquiry shifts to the plaintiff. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The plaintiff bears the burden of showing sufficient facts to establish the existence of every essential case element required at trial. Id. Upon burden failure, "the trial court should grant the summary judgment motion because there can be no genuine issue of material fact in that situation; a complete failure of proof concerning an essential element of the plaintiff's case renders all other facts immaterial." Little v. Countrywood Homes, Inc., 132 Wn. App. 777, 779-80, 133 P.3d 944 (2006). In making a responsive showing, the nonmoving party must set forth specific facts showing a genuine issue and cannot rely on mere allegations, speculation, or argumentative assertions. Id. at 780; Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989).
The essential elements of negligence are duty, breach, causation, and damages. Little, 132 Wn. App. at 780. The Dusheys claim Fidelity's agent breached the ordinary duty of care in completing closing by failing to obtain Mr. Dushey's signature. The Dusheys' claim such breach "damaged [Mr.] Dushey and the marital community in various ways and in an amount to be proven at the time of trial." CP at 21.
Ms. York's affidavit satisfied Fidelity's initial burden to show no remaining genuine issue of fact regarding duty to ascertain the signers' identities. Ms. York declared she never closed a transaction without proper identification and that she always requires the parties to provide her with their driver's licenses. Ms. York stated she did not close the Dusheys' transaction without both parties present. The loan file shows Mr. and Ms. Dushey's signatures and photocopies of their driver's licenses. Finally, Ms. York swore she never allowed a party to remove loan documents from the office and return them at a later time and did not do so in this case.
The burden then shifted to the Dusheys. The Dusheys acknowledged "expert witnesses in handwriting and negligence would be necessary" to establish their claim. CP at 296. "Expert testimony is required when an essential element in the case is best established by an opinion that is beyond the expertise of a layperson." Seybold v. Neu, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001). Without expert testimony the Dusheys agreed they could not establish the claimed forgery. The parties did not disagree on this point. While the trial court additionally found no genuine issue of material fact remained regarding damages, we need not address this issue.
Finally, motions for reconsideration are within the sound discretion of the trial court and a reviewing court will not reverse that decision absent a showing of a manifest abuse of discretion. Wagner Dev., Inc. v. Fidelity Bond and Deposit Co. of Md, 95 Wn. App. 896, 906, 977 P.2d 639 (1999). Since the trial court's rulings were not in error, its denial of reconsideration was likewise not in error.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, A.C.J. and SIDDOWAY, J., concur.