Opinion
No. 56338-6-I.
July 17, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-2-36387-1, Helen Halpert, J., entered May 25, 2005.
Counsel for Appellant(s), Sylvia Louise Luppert, Reaugh Oettinger Luppert PS, 1601 5th Ave Ste 2200, Seattle, WA 98101-1651.
Counsel for Respondent(s), Tyna Ek, Soha Lang PS, 701 5th Ave Ste 2400, Seattle, WA 98104-7003.
Matthew D Taylor, Lee Smart Cook Martin Patterson PS Inc, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Appelwick, C.J., and Baker, J.
Siobhan Ricci sued her former mental health counselor, Steven Gary, alleging negligent treatment and violation of confidentiality laws. The trial court dismissed her claims on summary judgment. Ricci now appeals, contending that the trial court erred by not considering certain late-filed documents, by ruling that her professional negligence claim lacked the requisite expert testimony, and by ruling that her breach of confidentiality claim was unfounded. Finding no error, we affirm.
Ricci also sued another counselor, Alma Stanford. The parties settled those claims while the case was on appeal.
FACTS
Facts underlying Ricci's claims
The facts are set forth in the light most favorable to Ricci.
Steven Gary provides individual and couples counseling. Gary has a master's degree in Applied Behavioral Science and is a licensed mental health counselor (LMHC). In September 2000, Ricci and her husband began seeing Gary for marital counseling. Ricci began seeing Gary for individual counseling in October 2000.
Ricci eventually came to believe that she was too emotionally attached to Gary. In July 2001, she asked him for a referral to another counselor. He referred her to Alma Stanford, a certified counselor.
Before Ricci began seeing Stanford for therapy in August 2001, Gary and Stanford discussed Ricci in the context of transferring her care. Several weeks after she began therapy with Stanford, Ricci decided that she wanted to return for a single session with Gary. Gary told Ricci that he wanted to speak to Stanford before seeing Ricci. Ricci provided her verbal consent for him to do so. Stanford and Gary discussed the purpose of Ricci's return visit and the transfer of her care.
In early September 2001, Ricci had a session with Gary. At the end of this session, Gary told Ricci that he loved her, although Ricci described his manner as 'nonchalant.' Ricci states that this was problematic for her because of 'the difficulty with my letting go of that attachment to him and not understanding why it would be important for him to say something like that just in casual passing.'
On October 3, 2001, Ricci had an additional session with Gary, during which she asked him about his statement that he loved her. In response, Gary told her, "I love you, but I don't have to have you."
At the end of this session, which was the last time Ricci and Gary saw one another, they embraced. Ricci testified in her deposition that there was nothing inappropriate about the embrace and that the embrace did not form a basis for her complaint.
Stanford stated that she met with Gary on October 10 to discuss Ricci and the transfer of her care. Gary denied that this meeting occurred. On October 29, Stanford told Ricci that she and Gary had met to discuss Ricci and that the discussion included details of Ricci's October 3 session with Gary. Ricci was surprised by this because she had not previously told Stanford about the October 3 session.
Stanford testified in her deposition that she destroyed all of her notes regarding Ricci after receiving a telephone call from Ricci's husband that made her fear for her safety.
Stanford told Ricci that Gary felt 'unappreciated' by Ricci, had renewed his wedding vows with his wife, and had decided to stay with his wife because he 'had been trying to get appreciation from the wrong person.' Stanford also told Ricci that Gary had admitted to being aroused by Ricci during their embrace. Ricci felt 'exploited' by Gary discussing his feelings with Stanford.
Ricci telephoned Gary to ask why he and Stanford had communicated about her. In this one-hour conversation, Gary told her that he had been "aroused" during their last session. Ricci testified that this disclosure was the most distressing action taken by Gary.
Subsequently, Ricci received a letter from Gary instructing her not to contact him again.
Facts pertaining to confidentiality laws
When Ricci began counseling with Gary, he was subject to the confidentiality provisions of RCW 18.19.180. On July 22, 2001, chapter 18.225 RCW became effective, creating and regulating the licensed mental health counselor (LMHC) profession. When chapter 18.225 RCW became effective, it did not contain confidentiality provisions comparable to those in RCW 18.19.180. The legislature added such confidentiality provisions to chapter 18.225 RCW in 2003. In 2000 and 2001, the confidentiality provisions of the Uniform Health Care Information Act (UHCIA), set forth in RCW 70.02.050, applied to Gary. RCW 70.02.010(4)(a), (b); RCW 70.02.180. In addition, Gary presented his clients with a written confidentiality policy based on RCW 18.19.180 on a form included with his intake paperwork. Ricci signed such a form on September 21, 2000.
Procedural history
Ricci sued Gary, alleging negligent treatment and violation of confidentiality laws.
Gary moved for summary judgment, asserting: (1) that Ricci lacked expert evidence that Gary had breached applicable standards of care; (2) that Ricci lacked evidence that Gary's actions had caused her injury; and (3) that Gary was authorized by the UHCIA to communicate with Stanford about Ricci. The motion was set for hearing on April 22, 2005, three weeks before the trial date.
With Ricci's response to the motion for summary judgment, she submitted the curriculum vitae of licensed psychologist Stuart Greenberg, Ph.D., and a report prepared by Dr. Greenberg, in which he expressed his opinions regarding Gary's failure to meet applicable standards of care. Dr. Greenberg's report also describes communications between Gary and Stanford.
In the report, Dr. Greenberg adds additional factual context about Ricci's counseling with Gary. For example, Ricci alleges that Gary asked her, during a session, whether she was attracted to him. Ricci also related that during a session with Gary, that Gary said to her, "If you asked me for sex, I would tell you no." Clerk's Papers (CP) at 580. Ricci reported that this comment seemed out of context.
Dr. Greenberg opined that "reasonably prudent and competent practitioners would not have engaged in the behaviors and actions described." He also opined that Ricci's psychological makeup should have been apparent to a reasonably prudent and competent practitioner. Although he acknowledged that a "normally constituted person would not be substantially harmed by the counselors' allegedly sexual comments and questionable discretion regarding Ricci's confidentiality," Dr. Greenberg stated that Ricci's status as a therapy patient, her personality makeup, and the situational stress she was under indicated she was not a "normally constituted person." He continued: "Reasonably prudent and competent therapists should have been aware that she needed care and discretion that was more thoughtful, cautious, and respectful of her psychological makeup and the state of her life situation." Dr. Greenberg added:
It is my opinion, therefore, that the prevailing professional judgment of competent practitioners in similar circumstances would have been to not engage in the actions allegedly engaged in by the defendants in this matter. Their alleged behavior in these regards was professionally inappropriate, ill-suited to their patient, and ill-timed given her fragile state. Their actions were lacking in adequate forethought and were inconsiderate of and discrepant with concerns for her well-being. It is my opinion that they either failed to adequately assess her makeup and her status, or they disregarded what they knew in their manner of dealing with her, or both.
Dr. Greenberg also expressed his opinion regarding the causation of Ricci's injuries:
It is my opinion that, on a more probably than not basis, [Gary and Stanford's] failure to provide her adequate assessment and treatment combined with the inadequate thoughtfulness, prudence, judgment, and discretion that is reflected in their actions, either caused or exacerbated her psychological problems rather than helping to treat them. Gary moved to strike the report, claiming that there was no evidence that Dr. Greenberg was familiar with the standard of care for licensed mental health counselors.
Gary also claimed that the report was not properly submitted, as it was unsworn. The trial court declined to grant the defendant's motion on this basis.
On April 12, 2005, the day after Ricci's answer to the motion for summary judgment was due and filed, Gary's counsel deposed Dr. Greenberg. Dr. Greenberg expanded upon his qualifications and his knowledge of the training and standards of care of mental health counselors. Dr. Greenberg stated that, prior to the deposition, he had reviewed the Code of Ethics of the American Mental Health Counselors Association, conduct codes, practice codes, and regulations. He stated that he read the counselors' depositions before generating his report. He testified that there is 'overlap' between a psychologist's training and a LMHC's training in general and a specific overlap between Dr. Greenberg's training and Gary's training, as both studied family systems therapy.
Ricci's answer to the motion to strike was filed on April 20, 2005. The answer included a declaration by Ricci's counsel which had the majority of the transcript of Dr. Greenberg's deposition attached as an exhibit. On April 22, 2005, the trial court granted Gary's motion to strike Dr. Greenberg's report. The basis for this ruling was that a sufficient foundation had not been established to demonstrate Dr. Greenberg's competency to testify to the standards of care applicable to LMHCs. Specifically, the trial court stated:
The source of Dr. Greenberg's knowledge as to the standard of care required of mental health counselors is not stated in his report. A review of his curriculum vitae does not indicate any particular experience in regards to the training required of mental health counselors or any familiarity with administrative or statutory provisions applicable to counselors licensed pursuant to RCW 18.225. This makes it particularly difficult to determine the basis of his opinion that the defendants should have been aware of Ms. Ricci's particular vulnerability and that their lack of awareness breached the applicable standard of care. As a result, Dr. Greenberg's opinions are naked conclusions without a mooring in the applicable standard of care. The motion to strike is granted. The trial court refused to consider Dr. Greenberg's deposition testimony in ruling on the motion to strike and also refused to consider the deposition testimony as substantive evidence in ruling on the motion for summary judgment.
The trial court granted summary judgment to the defendant, dismissing Ricci's claims against Gary with prejudice.
The trial court denied Ricci's subsequent motion for reconsideration and entered judgment for Gary. Ricci appeals.
DISCUSSION
I. Trial court's refusal to consider late-filed documents
Ricci contends that the trial court erred by refusing to consider the excerpts from the deposition of Dr. Greenberg, which were filed with the court nine days after her summary judgment response was due and only two days before the hearing. The record is clear that the trial court refused to consider this evidence in resolving both the motion to strike Dr. Greenberg's report and the underlying summary judgment motion.
With regard to the summary judgment motion, Civil Rule 56 sets clear due dates for the filing of the parties'
pleadings. It was once the law that the trial court was charged with the responsibility of considering any affidavit filed prior to the entry of a formal order of summary judgment, even if an oral decision or memorandum decision had been rendered by the court. See, e.g., Cofer v. Pierce County, 8 Wn. App. 258, 505 P.2d 476 (1973); Felsman v. Kessler, 2 Wn. App. 493, 468 P.2d 691 (1970). This is no longer the law. Instead, the time provisions of CR 56(c) govern. The law is now that a trial court is not required to consider an affidavit that has been untimely filed in response to a summary judgment motion. McBride v. Walla Walla County, 95 Wn. App. 33, 37, 975 P.2d 1029, 990 P.2d 967 (1999) (trial court properly refused to consider affidavits filed by non-moving party 4 days before the hearing). '[W]hether to accept or reject untimely filed affidavits lies within the trial court's discretion.' Brown v. Park Place Homes Realty, Inc., 48 Wn. App. 554, 559, 739 P.2d 1188 (1987). Late-filed affidavits are properly excluded where the proponent of the evidence 'ha[s] no excuse for failing to address the issues in prior materials submitted to the court.' Id. at 560.
'The motion and any supporting affidavits, memoranda of law, or other documentation shall be filed and served not later than 28 calendar days before the hearing. The adverse party may file and serve opposing affidavits, memoranda of law or other documentation not later than 11 calendar days before the hearing. The moving party may file and serve any rebuttal documents not later than 5 calendar days prior to the hearing. If the date for filing either the response or rebuttal falls on a Saturday, Sunday, or legal holiday, then it shall be filed and served not later than the next day nearer the hearing which is neither a Saturday, Sunday, or legal holiday. Summary judgment motions shall be heard more than 14 calendar days before the date set for trial unless leave of court is granted to allow otherwise.' CR 56(c).
With regard to the motion to strike Dr. Greenberg's report, three things must be noted. First, Ricci's obligation to establish Dr. Greenberg's testimonial competency was required to be satisfied at the time the report was filed with the court. The applicable rule provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
CR 56(e) (emphasis added). This obligation arises in the first instance, not merely in response to an adversary's motion to strike the evidence based on an asserted lack of testimonial competency.
Second, the law allows great latitude to the party bringing the motion to strike. Such a motion has been deemed timely so long as it was made prior to the trial court ruling on the motion for summary judgment. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 (1979); Smith v. Showalter, 47 Wn. App. 245, 248, 734 P.2d 928 (1987); Greer v. Northwestern Nat'l Ins. Co., 36 Wn. App. 330, 674 P.2d 1257 (1984). 'What is 'timely' is not defined in Washington cases, and apparently is up to the court's discretion.' David A. Lowe, Summary Judgment in 3 Civil Procedure Deskbook sec. 56.6(2)(c), 56-19, 56-20 (Wash. State Bar Ass'n, 2d ed. 2002).
Third, also within the trial court's discretion is the determination as to whether the motion to strike should be decided only on the pleadings submitted pursuant to CR 56(e) or whether additional evidentiary submissions should be allowed. Smyser v. Smyser, 19 Wn.2d 42, 50, 140 P.2d 959 (1943) (orderly conduct of proceeding is a matter wholly within the discretion of the trial judge). Inasmuch as CR 56(e) requires that the witnesses' competency be set forth in the affidavit and CR 56(c) establishes the due date for filing the affidavit, the proponent of the affiant's testimony clearly has no right, absent the grace of the court, to correct errors or supplement the record through the submission of late-filed documents.
In this case, the trial court took the harsh position that it would not consider the late-filed deposition excerpts in ruling upon either the motion to strike or the underlying summary judgment motion. Certainly, another court might have viewed the situation differently. However, the test for abuse of discretion is not whether another court might have — or even would have — ruled differently. The test is whether the trial court based its decision on tenable grounds and reasons. Coggle v. Snow, 56 Wn. App. 499, 506-07, 784 P.2d 554 (1990). As explained in that case, 'the central idea of discretion is choice: the court has discretion in the sense that there are no 'officially wrong' answers to the questions posed. 'Id. at 505. On these facts, we conclude that there is no 'officially wrong' answer to the question posed. There were tenable grounds and reasons supporting the trial court's decision. Therefore, we cannot and do not find an abuse of discretion in the trial court's decision not to consider the content of the late-filed evidentiary documents in resolving the motion to strike and the summary judgment motion.
II. Trial court's ruling on the motion to strike
Ricci next contends that the trial court erred by granting the motion to strike. We disagree.
A trial court's determination of a witness' competence to render an expert opinion in an action pursuant to RCW 7.70.030, even if made in the course of a summary judgment proceeding, is reviewed for abuse of discretion. Colwell v. Holy Family Hosp., 104 Wn. App. 606, 613, 15 P.3d 210 (2001). Thus, we must discern whether tenable reasons were given in support of the trial court's ruling.
A party alleging negligence by a health care provider is required to show that the health care provider 'failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances.' RCW 7.70.040(1). Expert testimony is required to establish the standard of care. Young v. Key Pharms., Inc., 112 Wn.2d 216, 228, 770 P.2d 182 (1989).
'The general rule is that a practitioner of one school of medicine is incompetent to testify as an expert in a malpractice action against a practitioner of another school.' Eng v. Klein, 127 Wn. App. 171, 176, 110 P.3d 844 (2005). There are several well-established exceptions to this rule, which include circumstances where:
(1) the methods of treatment in the defendant's school and the school of the witness are the same;
(2) the method of treatment in the defendant's school and the school of the witness should be the same; or
(3) the testimony of a witness is based on knowledge of the defendant's own school. Miller v. Peterson, 42 Wn. App. 822, 831, 714 P.2d 695 (1986).
Essentially, this means that 'a practitioner of one school of medicine may testify against a practitioner of another school of medicine when the methods of treatment of the two schools are or should be the same.' Id. at 832. "It is the scope of the witness' knowledge and not the artificial classification by title that should govern the question of admissibility' of expert medical testimony in a malpractice case.' White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 174, 810 P.2d 4 (1991) (quoting Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887 (1975)).
The proponent of such testimony bears the burden of establishing testimonial competency. CR 56(e); Doherty v. Municipality of Metro. Seattle, 83 Wn. App. 464, 469, 921 P.2d 1098 (1996); Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 817 P.2d 861 (1991). Thus, it was incumbent upon Ricci to establish that Dr. Greenberg was familiar with the standard of care applicable to Gary as an LMHC. Ricci failed to meet this obligation.
The trial court had before it Dr. Greenberg's report and his curriculum vitae. Neither established: (1) that the methods of treatment for an LMHC and a forensic clinical psychologist are or should be the same; (2) that Dr. Greenberg's testimony was based on knowledge of Gary's 'school'; or (3) either that Dr. Greenberg was familiar with the standard of care applicable to LMHCs or that a factual basis for such a familiarity existed. In addition, Dr. Greenberg's report refers to WAC 246-924-363 and the Ethical Principles of Psychologists and Code of Conduct as resources he consulted in forming his opinions on the applicable standard of care. However, chapter 246-924 WAC applies to psychologists, not LMHCs, who are regulated under chapter 246-809 WAC.
Dr. Greenberg's ultimate opinion was expressed thusly: 'the prevailing professional judgment of competent practitioners in similar circumstances would have been to not engage in the actions allegedly engaged in by the defendants in this matter.' CP at 241. The reference to 'competent practitioners' is not a clear reference to LMHCs, as opposed to psychologists. Dr. Greenberg's report does not clearly set forth any breach of a standard of care applicable to an LMHC.
The general rule mandates that Dr. Greenberg, a clinical psychologist, cannot opine as to the standard of care applicable to Gary, an LMHC. Taken together, Dr. Greenberg's report and his curriculum vitae fail to demonstrate the applicability of any of the exceptions to this rule, as set forth in Eng v. Klein, 127 Wn. App. at 176, or Miller v. Peterson, 42 Wn. App. at 831. The trial court did not abuse its discretion by granting the motion to strike the opinions expressed in Dr. Greenberg's report.
III. Trial court's ruling on summary judgment
A. Standard of Review
In reviewing an order granting summary judgment, this court engages in the same inquiry as the trial court and considers the evidence and the reasonable inferences therefrom in the light most favorable to the non-moving party. Young v. Key Pharms., 112 Wn.2d at 226. Summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 140, 960 P.2d 919 (1998). Summary judgment 'should be granted only if, from all the evidence, reasonable persons could reach but one conclusion.' Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
B. Health Care Negligence Claims
Expert testimony is required to establish both the applicable standard of care and the breach thereof in professional negligence cases involving the provision of health care. RCW 7.70.040; Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983). The trial court struck from evidence those portions of Dr. Greenberg's report in which he set forth his opinions on these subjects. This left Ricci with no evidence on the issues. Under these circumstances, reasonable minds could not differ. The trial court properly granted summary judgment dismissing these claims.
C. Confidentiality Claims
Similarly, the trial court did not err by dismissing Ricci's breach of confidentiality claims. This is true for several reasons.
First, Ricci was without expert testimony to support a professional negligence claim on this basis. Her only expert, Dr. Greenberg, opined that Gary did not fail to treat within the standard of care in this regard. Ricci proffered no other expert opinion on the subject. Thus, any claim pursuant to chapter 7.70 RCW fails. Berger v. Sonneland, 144 Wn.2d 91, 26 P.3d 257 (2001); Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d at 449.
Gary provided the following explanation for his disclosure of Ricci's information: 'After my initial attempt to transfer Siobhan Ricci's therapeutic care to Alma Stanford as she requested, in July of 2001, Ms. Ricci continued to contact me. She seemed to be having a difficult time adjusting to the transfer of care. She asked for a follow up appointment to see me, and I agreed to do so only with her new therapist's (i.e., Alma Stanford's) consent. It was and remains my view that any interaction that I had with Alma Stanford after Ms. Ricci began seeing her was all part of the process of transferring her care. Consequently, I believed Alma Stanford needed to know about the on-going contact Ms. Ricci was continuing to have with me, and the difficulty that Ms. Ricci was having with the transfer of care, in order to maximize Ms. Stanford's ability to successfully treat Ms. Ricci.'
LMHC Judy Roberts made clear in her deposition testimony that she was not testifying to 'standard of care' issues.
Second, any claim by Ricci that Gary's behavior violated the confidentiality provisions of the UHCIA fails because the act allows for communication between counselors when there is a transfer of care. RCW 70.02.050. Both the plaintiff's expert, Dr. Greenberg, and the defendant's expert, Dr. Corey Fagan, agreed that the UHCIA allowed for the communication which took place herein. Regardless of whether Dr. Greenberg's testimony on this issue was actually considered by the trial court, it is clear that all testimony admitted on the issue was to the effect that no violation of the confidentiality provisions of the UHCIA occurred.
The UHCIA allows disclosure of health care information about the patient without consent 'to the extent a recipient needs to know the information,' where the disclosure is to a person reasonably believed to be providing health care to the patient. RCW 70.02.050.
Third, the acts Ricci complains of took place after RCW 18.19.180 ceased to apply to Gary. Thus, Ricci's reliance on this statutory provision is unavailing.
Fourth, chapter 18.225 RCW, which superseded chapter 18.19 RCW with regard to LMHCs in July 2001, does not afford Ricci a basis for relief. When adopted, chapter 18.225 RCW did not contain confidentiality provisions similar to those of RCW 18.19.180. Such provisions were later added by the 2003 legislature. During the intervening period, however, only the provisions of the UHCIA applied to LMHCs such as Gary. Thus, relief cannot be afforded Ricci based on the provisions of chapter 18.225 RCW in effect at the times relevant to this appeal.
Finally, Ricci's attempt to convert her claim to one of breach of contract is untenable. Ricci did not plead a breach of contract claim in her complaint and the trial court did not grant a motion allowing for amendment of the complaint prior to ruling on the summary judgment motion. Because the breach of contract claim was not properly pleaded, it cannot provide a basis for relief.
On appeal, Ricci contends that the intake paperwork she signed on September 21, 2000, constituted a written contract, the confidentiality provisions of which were breached by Gary.
In her motion for reconsideration, Ricci argued that paragraph 9 of her complaint adequately alleged this claim. That paragraph provides: 'Stanford and Gary breached plaintiff's right of privacy and confidentiality by sharing information about plaintiff with each other without plaintiff's consent.' CP 29; 559. These words do not state a cause of action for breach of contract. Inasmuch as they refer to both Stanford and Gary as wrongdoers, they plainly do not refer to a contract between Gary and Ricci, to which Stanford was never a party.
IV. Trial court's ruling denying reconsideration
Ricci did not assign error to the trial court's denial of her motion for reconsideration and, thus, is precluded from seeking relief on this basis. Painting Decorating Contractors, Inc. v. Ellensberg Sch. Dist., 96 Wn.2d 806, 638 P.2d 1220 (1982). However, we choose to address the issue on its merits and find no error.
Only newly discovered evidence may be raised in a motion for reconsideration. CR 59(a); Adams v. Western Host, Inc., 55 Wn. App. 601, 779 P.2d 281 (1989). 'The realization that [a witness'] first declaration was insufficient does not qualify the second declaration as newly discovered evidence.' Id. at 608.
Both a trial and a summary judgment hearing afford the parties ample opportunity to present evidence. If the evidence was available but not offered until after that opportunity passes, the parties are not entitled to another opportunity to submit that evidence.
Wagner Dev., Inc. v. Fidelity Deposit Co., 95 Wn. App. 896, 907, 977 P.2d 639 (1999).
A motion pursuant to CR 59 'is directed to the sound discretion of the trial court.' Byerly v. Madsen, 41 Wn. App. 495, 499, 704 P.2d 1236 (1985). Here, in denying the motion to reconsider, the trial court correctly noted that Dr. Greenberg's testimony was, at all relevant times, available to Ricci. There was no abuse of discretion.
CONCLUSION
The resolution of this appeal rests upon, and highlights, the discretionary authority granted trial courts. Several important discretionary rulings were made, each of which operated to the detriment of Ricci. This is not, however, an indication of unfairness. Indeed, the applicable court rules and case law upon which this case is decided were well-known and developed before the trial court was called upon to rule. Had Ricci strictly complied with these requirements, the series of discretionary rulings of which she now complains might not have had to be made. By not so complying, Ricci put herself to the grace of the trial court — a grace which was not forthcoming. Such is the extent — and power — of trial court discretion.
Affirmed.
APPELWICK and BAKER, JJ., concur.