Opinion
No. 65728-3-I
11-21-2011
R & R CONCRETE, INC., a Washington corporation, Appellant/Cross Respondent, v. MICHAEL COAKER and MARILEE COAKER, husband and wife, and the marital community composed thereof; SUNDANCE BUILDERS, INC., a Washington corporation; and TRAVELERS CASUALTY & SURETY CO., Bond No. 103490929, Respondents/Cross Appellants. MICHAEL COAKER and MARILEE COAKER, husband and wife, and the marital community composed thereof, Third-Party Respondents, v. CONTRACTOR'S BONDING and INSURANCE COMPANY, BOND NO. SG8409, Third-Party Defendant.
UNPUBLISHED
, J. — In this breach of contract action, the plaintiff, R & R Concrete, moved at trial to strike a substitute expert's testimony on the ground that it violated discovery rules. The defendants, Michael and Marilee Coaker, moved to dismiss R & R's suit on the ground that R & R did not prove a statutory prerequisite to suit. The trial court denied both motions and entered judgment for R & R. Both parties appeal. We affirm.
On September 24, 2007, the Coakers hired R & R to perform concrete work at their residence. The parties signed a contract and work commenced in short order. When a dispute arose regarding R & R's workmanship, the Coakers stopped making payments to R & R.
In May 2008, R & R sued the Coakers for breach of contract. The Coakers counterclaimed against R & R and impleaded its bonding company.
The Coakers retained an architectural and engineering firm, Wiss, Janney, Elstner Associates, Inc., for expert testimony supporting their case. In January 2010, the Coakers informed R & R that Amy Woods, a member of Wiss, Janney, would be their expert. The Coakers disclosed Woods' report at that time. R & R declined to depose Woods.
About one month before trial, Woods left her firm. One week before trial, the Coakers' counsel learned that Woods had left the firm and immediately informed R & R's counsel. He indicated the Coakers would call another member of the firm, architect/engineer David Deress, as their expert. R & R's counsel asked if Deress had been to the jobsite. The Coakers' counsel said he did not know. Based on this conversation, R & R's counsel assumed Deress' testimony would be limited to the previously disclosed report of Amy Woods.
The case was tried to the bench. On the second day of trial, Deress took the stand and testified that the Coakers had retained his firm to evaluate the quality of R & R's concrete work. Deress assigned the project to Amy Woods, and she prepared a report which Deress reviewed. When Deress began testifying to observations and measurements he personally made at the jobsite the day before, R & R's counsel objected that he had received no notice of or discovery relating to such testimony. He also argued that Deress should not be allowed to testify because no one attempted to subpoena the original expert, Amy Woods.
The Coakers' counsel replied that Deress' testimony was nothing more than an explanation of matters in Amy Woods' previously disclosed report. He maintained that R & R was not prejudiced by Deress' testimony because they had known about Woods and her report for months, they did not depose Woods, and Deress was simply another person from the same firm substituting for Woods. The court declined to rule until it heard Deress' testimony.
A short time later, R & R's counsel again objected to testimony based on Deress' personal observations. Following additional argument from both counsel, the court said it would allow the testimony to go forward "for the time being . . . since the witness is here" and added that some testimony might be stricken depending on R & R's discovery requests.
When Deress finished testifying, R & R's counsel moved to strike his testimony in its entirety. Counsel claimed the testimony "far exceeded" the contents of Woods' report and that there had been no showing that Woods was unavailable. He also noted that his discovery requests required the production of expert notes, that the obligation was ongoing, and that he had only received Amy Woods' report. The Coakers' counsel reiterated his position that Deress was not an undisclosed witness, but rather was a substitute from Woods' firm and was merely elaborating on her report. The court ruled as follows:
The Court is satisfied that Mr. Deress is permitted to testify as an expert. The plaintiff for whatever reason didn't do a deposition or some - I mean, they can be done inexpensively. It could have been done by telephone, it can be done by tape, it can be done a lot of different ways. If her testimony had been preserved, I probably would have insisted that we use that.
The substitution was, of course, not brought to my attention until 20 minutes into Mr. Deress's testimony. The issues that he addressed certainly resemble what's in [Woods' report]. If -sometimes we admit the reports for convenience, but I think his testimony is permissible.
. . .
. . . I have no idea whether [Woods] is available, but she would not have been the only witness who could testify about this.
So I -- I don't think the word "ambush" is particularly helpful here. I -- I don't think it's a model of how discovery is done either. The Court will permit his testimony to stand. Obviously there was cross-examination as well.
Report of Proceedings (May 27, 2010) at 8-9.
During closing arguments, the Coakers moved to dismiss R & R's action on the ground that it failed to prove a statutory prerequisite suit - i.e., that it was a registered contractor when it entered into their contract.
The court denied the motion and entered judgment for R & R. The court substantially reduced R & R's recovery based in part on deficiencies Deress identified in its work. R & R moved for reconsideration of the court's ruling allowing Deress' testimony. The court denied that motion as well.
R & R appeals. The Coakers cross-appeal the denial of their motion to dismiss.
We begin with the Coakers' contention in their cross-appeal that the trial court erred in denying their motion to dismiss under RCW 18.27.080. That statute provides in pertinent part as follows:
No person engaged in the business or acting in the capacity of a contractor may bring or maintain any action in any court of this state . . . for breach of any contract for which registration is required under this chapter without alleging and proving that he was a duly registered contractor and held a current and valid certificate of registration at the time he contracted for the performance of such work or entered into such contract.The Coakers' argued below that R & R failed to prove its registered status as required by this statute. The trial court found by a preponderance of the evidence that R & R was registered and licensed "at the time that this work was done." The court acknowledged that the Coakers' evidence showed some brief lapses in R & R's registration status at other times, but noted there was no "evidence that in 2007 when the contract is signed and when the work is being done . . . that he was not licensed. . . ." The Coakers advance two challenges to the court's ruling.
(Emphasis added.)
Report of Proceedings (May 27, 2010) at 59.
Id.
First, they contend the court erroneously placed the burden of proof on them to prove that R & R was not registered. The record belies this claim. While the court did state it was "arguable" that the burden was on the defense, it then said "In any case I will find by a preponderance of the evidence that [R & R] was registered and licensed . . . ."
Id.
Second, the Coakers contend the court's finding that R & R was registered when the parties contracted is not supported by sufficient evidence.This argument is unpersuasive.
The Coakers do not argue that the court failed to expressly find that R & R was registered when the parties signed their contract. In any case, the finding is implicit in the court's oral ruling. Furthermore, because testimony established that work on the project began immediately after the contract was signed, the court's finding that R & R was registered during its work on the project was, for all intents and purposes, a finding that it was registered when the parties executed the contract.
We review findings of fact for substantial evidence. There is substantial circumstantial evidence supporting the challenged finding.
Washington State Dep't of Health Unlicensed Practice Program v. Yow, 147 Wn. App. 807, 818, 199 P.3d 417 (2008).
When asked if R & R's registration had been revoked or suspended prior to its work for the Coakers in the fall of 2007, R & R's owner, Roger Rausch, testified: "I don't believe so. Because I did work for Babbit Neuman . . . that summer [of 2007]. And they wouldn't even let me on the project if I was suspended or whatever." A Department of Labor and Industries document showed that while R & R's registration had in fact lapsed in early 2007, it was reinstated as of April 2007. It is also undisputed that the parties' contract, which was admitted as an exhibit, recited R & R's contractor registration number. Taken together, this circumstantial evidence is sufficient to support the court's finding that, more probably than not, R & R was a registered contractor when it contracted with the Coakers in September 2007.
Report of Proceedings (May 26, 2010) at 56. Documentation is not required to prove registration; testimony that the plaintiff was registered is sufficient. Rhyne v. Bates, 35 Wn. App. 529, 531, 667 P.2d 1131 (1983).
Turning to R & R's appeal, it contends the trial court abused its discretion in denying its motion to strike expert David Deress' testimony. It argues that the late disclosure of Deress and the untimely production of his notes and other materials violated local discovery rules KCLR 26(b)(4) (exclusion of witness not properly disclosed) and KCLR 26(e) (requiring supplementation of discovery responses).
A trial court's ruling regarding violations of these rules is reviewed for abuse of discretion. The trial court should impose the least severe sanction that is adequate under the circumstances. The court should take care not "to exclude testimony as a sanction absent any showing of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct." A party's untimely designation of a witness without reasonable excuse is considered willful and justifies exclusion of the witness. Applying these principles here, we conclude there was no abuse of discretion.
Rice v. Janovich, 109 Wn.2d 48, 56, 742 P.2d 1230 (1987); (CR 26(e)(1)); In. re Marriage of Gillespie, 89 Wn. App. 390, 404, 948 P.2d 1338 (1997) (late disclosure of expert); Dempere v. Nelson, 76 Wn. App. 403, 405-06, 886 P.2d 219 (1994) (late disclosure of expert).
Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 807, 98 P.3d 1264 (2004); In re Estate of Fahnlander, 81 Wn. App. 206, 209, 913 P.2d 426 (1996).
Rice, 109 Wn.2d at 56 (quoting Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 706, 732 P.2d 974 (1987)) (internal quotations marks omitted).
Dempere, 76 Wn. App. at 406.
Under KCLR 26(b), each party must disclose all witnesses, including expert witnesses, according to the case management schedule set for the case. "Any person not disclosed in compliance with this rule may not be called to testify at trial, unless the Court orders otherwise for good cause and subject to such conditions as justice requires." Former KCLR 26(b)(4). R & R contends the Coakers did not demonstrate good cause for the last minute substitution and disclosure of Deress. We disagree.
Former KCLR 26(b)(4) is now KCLR 26(k)(4).
The Coakers did not learn of Woods' departure until the week before trial and immediately informed opposing counsel of their intent to substitute Deress for Woods. The substitution was justified because the Coakers hired the experts' firm, not Woods specifically, Woods was no longer with the firm, and Deress had supervised Woods' work on the case. In these circumstances, there was good cause for the late disclosure of Deress.
The other discovery rules cited by R & R - Former KCLR 26(b)(3)(C), KCLR 26(e), and KCLR 37(g) - together require parties to disclose a summary of an expert's anticipated testimony and, absent good cause, to "seasonably supplement" discovery responses no later than 49 days before trial. R & R contends the Coakers violated these rules by failing to provide them with Deress' notes and other materials until the day of his testimony. R & R concedes Deress' testimony was based at least in part on Woods' report and that it timely received the report in discovery. It contends, however, that Deress' testimony, and therefore the Coakers' discovery obligation, went well beyond the report. But
Former KCLR 26(b)(3)(C) is now KCLR 26(k)(3)(C)
KCLR 26(e); KCLR 37(g).
R & R has not made Woods' report a part of the record on appeal. It is the appellant's burden to provide this court with all portions of the record necessary to review the issues raised on appeal. In the absence of the report, we cannot review this aspect of R & R's claim.
Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988); RAP 9.2(b).
Furthermore, even assuming Deress' testimony departed significantly from Woods' report and that the Coakers' late provision of his notes and materials violated discovery rules without good cause, we cannot say the trial court abused its discretion in denying R & R's motion to strike Deress' testimony in its entirety. There was no showing that the alleged discovery violation was intentional or willful. Nothing in the record indicates that the timing of Deress' jobsite visit was part of a defense strategy to surprise R & R or that the defense could have supplemented discovery with any notes from that visit, which occurred on the first day of trial, prior to Deress' testimony the next morning. And while R & R claims it was prejudiced in its ability to cross-examine Deress, it never requested a continuance or explained why a continuance would be inappropriate. Instead, it moved the court to impose the most severe sanction available - striking "all of Mr. Deress's testimony." Under the circumstances, the trial court did not abuse its discretion in denying that motion.
Because this was a bench trial and Deress' testimony was not particularly lengthy or complicated, a brief continuance would arguably have been a sufficient and more appropriate remedy than striking all of his testimony. See Marriage of Gillespie, 89 Wn. App. at 404-06 (noting that in many instances a continuance is an appropriate remedy for a surprise witness); Perry, 123 Wn. App. at 805-07 (short continuance during bench trial was a reasonable remedy for discovery violation).
Report of Proceedings (May 27, 2010) at 91.
Both parties seek attorney fees on appeal under a contractual provision providing that the "loser" will pay attorney's fees. Because neither party prevailed on their claim for relief on appeal, neither is entitled to fees.
We affirm the judgment.
____________
WE CONCUR:
____________