Opinion
No. 36573-1-II.
May 28, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-09549-6, John R. Hickman, J., entered June 8, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Hunt and Penoyar, JJ.
Carolyn Heath appeals the trial court's orders that (1) denied her motion for partial summary judgment, (2) imposed discovery sanctions against her when it disqualified Home Depot's expert witness, and (3) ordered her to pay Home Depot's expenses for videotaping two depositions. Home Depot filed a motion on the merits under RAP 18.14. After hearing oral argument, a commissioner of this court referred the appeal to a panel of judges. We decline to review the trial court's denial of Heath's summary judgment motion. We conclude that the court did not abuse its discretion in imposing sanctions against Heath. But we also conclude that the court erred when it ordered Heath to pay Home Depot's expenses for videotaping its witnesses' depositions. Accordingly, we reverse those portions of Home Depot's cost bill.
FACTS
On July 12, 2002, Heath visited a Home Depot store in Gig Harbor. As she walked through the store's front entrance, Heath encountered an acquaintance, Denney Quiambao, who was a Home Depot employee. They began talking. A tripod display sign, approximately 6 feet tall and weighing five to ten pounds, stood inside the front entrance. As Heath and Quiambao talked, the display sign fell and hit Heath on the back of her head. Later that day, Quiambao completed a written statement describing the incident and gave it to an assistant store manager, Brad Harris.
On July 8, 2005, Heath sued Home Depot for negligence. In November 2006, she moved for partial summary judgment as to Home Depot's liability. In support of her motion, Heath submitted, among other things, a declaration from Quiambao in which he made the following statements: Before the incident involving Heath, Quiambao saw the display sign "blow over several times" that day. Each time it fell over, the display sign "was replaced in exactly the same location in front of the doors." Clerk's Papers (CP) at 51.
Heath also moved for summary judgment on several of Home Depot's affirmative defenses. The court later granted Heath's motion on two of the defenses and denied her motion on two others. Neither party appeals those rulings.
In response to Heath's motion, Home Depot submitted a declaration from Harris in which he stated that the display sign had "blown over" when it was placed outside of the front entrance doors earlier in the week. Later that week, Home Depot employees moved the sign inside the doors. After the sign was moved inside, Harris was "not aware of any reports that the sign fell over or blew over while it was on display" until Quiambao told him about the current incident. CP at 55. Quiambao did not tell him of any other instances of the sign falling over after it was moved inside the store. Home Depot argued that this evidence created a genuine issue of material fact regarding whether Home Depot had notice that the display sign had fallen over after it was moved inside the store, but before it struck Heath. The trial court agreed with Home Depot and denied Heath's summary judgment motion as to liability. Heath moved for reconsideration, but the court denied her motion. In its oral ruling, the court specified that Harris's declaration raised "issues of material fact." Report of Proceedings (RP) (Feb. 2, 2007) at 22.
In December 2005, as part of discovery, Heath disclosed her medical providers within the last decade. On January 27, 2006, Home Depot identified Dr. Lawrence Murphy, a neurologist, as an expert witness it intended to call to testify at trial. In April 2006, Heath again disclosed her medical providers within the last decade. On November 13, 2006, Home Depot again identified Dr. Murphy as an expert witness it intended to call at trial. On January 26, 2007, pursuant to CR 35, the trial court ordered Heath to complete a neurological examination with Dr. Murphy, which she did the following month.
CR 35(a)(1) provides, in pertinent part, that a court, "for good cause shown" may order a party to a physical or mental examination when that party's mental physical or mental condition "is in controversy."
On April 12, 2007, approximately one week before trial, Heath moved to disqualify Dr. Murphy as Home Depot's expert witness because he was also Heath's treating physician. In response, Home Depot argued that the court should deny Heath's motion because she (1) did not identify Dr. Murphy as one of her medical providers, (2) did not object when Home Depot identified him as an expert witness, and (3) did not object to completing the neurological Page 4 examination with him in February 2007. The court granted Heath's motion and disqualified Dr. Murphy as Home Depot's expert witness.
Dr. Murphy began treating Heath in 1999 for injuries she sustained in an automobile accident.
On April 25, 2007, Home Depot requested that the court order Heath to pay Dr. Murphy's fees as a sanction for failing to identify him as her physician. The court apportioned Dr. Murphy's fees equally among Heath, Home Depot, and Dr. Murphy. In its oral ruling, the court noted that it did not find that any party acted in bad faith, but it nevertheless found all three parties at fault. The court explained its decision as follows:
[I]n looking at who is at fault, [number] 1, the name should have been disclosed. It was a medical doctor that cared for her, and . . . that name should have been disclosed.
[Number] 2, the doctor should have said something or did something; and [number] 3, I think defense counsel should have done something or did something. So I think all three are equally liable to some degree in my mind, and that's why I'm going to split it three ways.
RP (May 9, 2007) at 9.
The case proceeded to trial. The jury found for Home Depot. In May 2007, Home Depot presented its cost bill. The bill included fees for videotaped depositions of Quiambao and Dr. Richard Schneider. Heath objected to the portion of the fees delineated for the taping of Dr. Schneider's deposition. She argued that, because Home Depot deposed him, it was responsible for the expense of taping the deposition. The court imposed the full amount of the deposition expenses, explaining: "This was a deposition, whether it's video or not, that was used on behalf of the defense, and they prevailed, and I feel that entire amount is fair. RP (June 8, 2007) at 15.
Heath also moved the court to reconsider its order imposing one-third of Dr. Murphy's fees on her. The court denied her motion. It further explained its decision as follows:
[T]here [were] mistakes made throughout the chain of command from both the plaintiff and defense viewpoints, and I believed — including the doctor who should have stepped forward and said, "Time out. I've seen this woman." But that never occurred, and I felt that dividing that burden three ways, including the doctor eating some of his own fees, would be appropriate.
. . . .
. . . I felt and continue to believe that [Heath] seeing this doctor was something that she should have recalled, was something she should have disclosed to counsel.
This was not a passing relationship. This was a medical specialist who was treating her for very important issues regarding head trauma, and yet that never got in the discovery answers that were submitted by defense, and I believe plaintiff when they say, "We didn't know that this relationship existed," because Ms. Heath was somewhat selective in who she disclosed this information to even among her own doctors. So it doesn't surprise me that counsel may not have been totally in the loop.
The problem is that there was a failure to disclose, in my opinion, to either counsel or counsel missed it if she did, in fact, disclose it, but it was there to be discovered.
RP (June 8, 2007) at 12-14. The court entered a final judgment on June 8, 2007. Heath appeals.
ANALYSIS
First, Heath argues that the trial court erred when it denied her motion for partial summary judgment as to Home Depot's liability. She maintains that Home Depot failed to raise a genuine issue of material fact to refute Quiambo's statement that he saw the display sign fall several times before it fell on Heath. "After a trial on the merits, we will not review a trial court's denial of a motion for summary judgment if the denial was based on the presence of material disputed facts." Lopez v. Reynoso, 129 Wn. App. 165, 174, 118 P.3d 398 (2005), review denied, 157 Wn.2d 1003 (2006).
Heath maintains that we may review the trial court's denial of her motion after the court enters its final judgment. To support her argument, she cites Bullo v. City of Fife, 50 Wn. App. 602, 603 n. 1, 749 P.2d 749 (1988); Huston v. First Church of God, 46 Wn. App. 740, 745, 732 P.2d 173 (1987); and Rodin v. O'Beirn, 3 Wn. App. 327, 332, 474 P.2d 903 (1970). But, in Bullo, we reviewed and reversed a trial court'sCR 54(b) judgment because we found that the court incorrectly interpreted an issue of law. 50 Wn. App. at 609. In Huston, we affirmed the trial court's denial of summary judgment because issues of fact existed regarding the plaintiff's awareness of the safety risk created by a wet floor and his ability to protect himself against that risk. 46 Wn. App. at 746. Similarly, in Rodin, Division One affirmed the trial court's denial of summary judgment because the parties' pleadings created "an issue of fact." 3 Wn. App. at 332.
We noted that "the practical effect" of the trial court's decision was to grant the City of Fife summary judgment on a controlling issue of law. Bello 50 Wn. App. at 603 n. 1.
Here, in response to Heath's motion, Home Depot presented evidence that, after the display sign was moved inside the store but before it struck Heath, the store's manager did not know of any other instances of the sign falling over. The trial court found that Heath's and Home Depot's evidence created a genuine issue of material fact regarding Home Depot's actual or constructive notice of the sign issue. Accordingly, it denied Heath's summary judgment motion. Contrary to Heath's position, the court's decision was clearly based on the presence of material facts. As a result, we will not review it.
Second, Heath argues that the trial court erred when it imposed one-third of Dr. Murphy's fees against her after it disqualified him as a defense witness. We review a trial court's discovery rulings for an abuse of discretion. In re Detention of Halgren, 156 Wn.2d 795, 802, 132 P.3d 714 (2006). "A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds." Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994). Here, the court concluded that Heath, Home Depot, and Dr. Murphy were equally responsible for failing to discover that Dr. Murphy was Heath's physician. It repeatedly explained the reasons for its decision, which was reasonable and based on tenable grounds. Thus, the court Page 7 did not abuse its discretion in apportioning one-third of Dr. Murphy's fees to Heath.
Finally, Heath argues that the trial court erred when it awarded Home Depot the expenses of videotaping two witnesses' depositions. We agree. Home Depot deposed Quiambao and Dr. Schneider. It included the expenses of videotaping and, later transcribing, both depositions in its cost bill ($397.50 for Quiambao and $1,453.52 for Dr. Schneider). The court included both expenses in Home Depot's award of its costs of litigation as the prevailing party. A prevailing party is entitled to "the reasonable expense of transcription of depositions used at trial." RCW 4.84.010(7) (emphasis added). But "the expense of videotaping" a deposition "shall be borne by the noting party and shall not be taxed as costs." CR 30(b)(8)(D) (emphasis added). That is what occurred here. Thus, the court erred when it imposed the expenses of videotaping the depositions as costs against Heath. Accordingly, we remand to the trial court with instructions to vacate the portions of Home Depot's cost bill relating to the taping of those depositions.
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 pursuant to RCW 2.06.040, it is so ordered.
Van Deren, A.C.J., Hunt, J., Penoyar, J., We concur.