Opinion
No. 59754-0-I.
June 30, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-2-09468-7, Kenneth L. Cowsert, J., entered March 21, 2007.
Affirmed by unpublished per curiam opinion.
When a motion to amend a complaint is made after summary judgment, the normal course of proceedings is disrupted and the trial court should consider whether the motion could have been made earlier in the litigation. Because Shelly Turner's postjudgment motion to add federal claims to her complaint for violations of state discrimination statutes could have been made earlier, and because those claims were not tried by the implied consent of the parties and could not otherwise be raised for the first time on reconsideration, we conclude the trial court did not abuse its discretion in denying her motion for reconsideration and leave to amend her complaint. Accordingly, we affirm.
FACTS
Shelly Turner worked for Snohomish County Public Utility District No. 1 from 1998 until she was terminated in July 2003. Three years later, she filed this action against the district and several of its employees (collectively, PUD) alleging disability discrimination in violation of chapter 49.60 RCW, retaliation in violation of chapter 49.60 RCW and chapter 51.08 RCW, and negligence.
PUD moved for summary judgment, arguing that Turner had not complied with the claim filing statute, RCW 4.96.020. In her responsive memorandum, Turner asserted that while the claim filing statute applied to tort actions against the State, it did not apply to claims based on rights protected by the Washington State Constitution. The memorandum did not mention federal law or any cause of action arising from federal law. Following argument, the court granted summary judgment dismissing Turner's claims with prejudice.
Turner then moved for reconsideration, arguing that her first amended complaint had raised facts supporting federal civil rights and equal protection claims, and that those claims, though not expressly raised in the pleadings, were litigated by the consent of the parties in their summary judgment memoranda. She asserted that the federal claims were not barred by the claim filing statute and therefore survived PUD's summary judgment motion. Alternatively, she sought leave to amend her complaint to add claims under " 42 USC 1983, US Constitution, . . . 41 USC 1981, and Americans with Disabilities Act" for violations of her "rights to be free from intentional discrimination, discriminatory administration of and termination of her employment contract, and invasions of guaranteed due process, equal protection, and individual rights."
In denying reconsideration, the court ruled that Turner's federal claims had not been pleaded or tried by the consent of the parties. The court denied Turner's request to amend her complaint, noting that she had amended her complaint once before, the request was untimely since it was made after the close of the pleadings and summary judgment, and PUD would be prejudiced since it had prevailed on summary judgment. Turner appeals.
DECISION
Turner first contends the trial court erred in concluding that her federal claims were not tried by the implied consent of the parties and therefore were not deemed a part of her complaint under CR 15(b). There was no error.
CR 15(b) provides in part that "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." A party manifests consent to litigate an issue not included in the pleadings by addressing the issue in its moving papers. In this case, nothing in PUD's moving papers can be fairly construed as raising, let alone litigating, any federal causes of action. While Turner claims she raised such claims in her oral argument below, she failed to provide a record of that hearing for this court's review. Furthermore, Turner's claim that she raised federal claims at oral argument does not, without more, establish that the claims were either litigated or tried with PUD's express or implied consent. Contrary to Turner's assertions, the fact that the court dismissed her claims "with prejudice" does not establish that the court addressed and resolved her federal claims. Rather, by ruling that those claims were not tried by implied consent, and by expressly denying Turner's request to add them to her complaint, the court excluded them from the litigation and its ruling. The trial court correctly applied CR 15(b).
Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 733 P.2d 530 (1987).
The party seeking review has the burden of providing this court with an adequate record to review the issues raised on appeal. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988). Generally, this burden includes providing a report of proceedings, RAP 9.5(a), which can take the form of a "'verbatim report of proceedings,' a ' narrative report of proceedings,' or an 'agreed report of proceedings.'" State ex rel. Henderson v. Woods, 72 Wn. App. 544, 552, 865 P.2d 33 (1994) (quoting RAP 9.1(b)). Because PUD denies ever acknowledging or litigating the federal claims during the summary judgment proceedings below, Turner's failure to provide a record of the argument on summary judgment is fatal to this claim.
See Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999).
Turner next contends the court erred in denying her motion for reconsideration. Citing Newcomer v. Masini, and Anderson v. Farmers Ins. Co., she claims the court erroneously refused to consider her federal causes of action for the first time on reconsideration. We disagree.
45 Wn. App. 284, 287, 724 P.2d 1122 (1986).
83 Wn. App. 725, 923 P.2d 713 (1996).
Newcomer and Anderson stand for the proposition that "[i]n a nonjury trial, an issue or theory not dependent upon new facts may be raised for the first time through a motion for reconsideration and thereby be preserved for appellate review." In neither case did the new issue or theory consist of a new cause of action that would otherwise be controlled by rules of pleading. In Newcomer, the new issue was equitable subrogation — a legal principle closely related to other equitable principles argued in support of a pleaded claim. Similarly, Anderson involved new authority for an argument previously raised in opposition to a request for costs. These cases do not support Turner's attempted postjudgment leap from causes of action based on state discrimination statutes to federal causes of action based on federal law.
Reitz v. Knight, 62 Wn. App. 575, 581 n. 4, 814 P.2d 1212 (1991) (citing Newcomer, 45 Wn. App. at 287) (emphasis added).
Next, citing CR 15(a), Turner alternatively argues that the trial court abused its discretion in denying her request on reconsideration to add federal claims to her complaint. Again, there was no abuse of discretion.
We review a denial of leave to amend after the pleadings have closed for a manifest abuse of discretion. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 142, 937 P.2d 154 (1997); Dewey, 95 Wn. App. at 27.
Under CR 15(a), a party may amend a pleading once as a matter of course at any time prior to service of a responsive pleading, but thereafter "only by leave of court or by written consent of the adverse party." While we have stressed that such leave should be freely given and denied only when delay, dilatory practice, or prejudice to the nonmoving party are shown, we have also stated that "[w]hen a motion to amend is made after the adverse granting of summary judgment, the normal course of proceedings is disrupted and the trial court should consider whether the motion could have been timely made earlier in the litigation."
Tagliani v. Colwell, 10 Wn. App. 227, 234, 517 P.2d 207 (1973).
Doyle v. Planned Parenthood of Seattle-King County, Inc., 31 Wn. App. 126, 130-31, 639 P.2d 240 (1982);
Trust Fund Servs. v. Glasscar, Inc., 19 Wn. App. 736, 744-45, 577 P.2d 980 (1978).
Here, Turner could have asserted her federal causes of action at the time of her original or first amended complaints. Instead, she waited until after the parties had fully litigated, and the court had finally decided, all of her claims against PUD on summary judgment. At this stage in the proceedings, allowing Turner to pursue new discrimination claims arising from and governed by a different body of law would have prejudiced PUD. Although reasonable judges might have ruled differently on Turner's motion to amend, we cannot say the trial court manifestly abused its discretion in denying it.
See Haselwood v. Bremerton Ice Arena, 137 Wn. App. 872, 890, 155 P.3d 952 (2007) (allowing amendment to add new claims after summary judgment "would prejudice the other parties' interests in promptly resolving the claims"); Wilson v. Horsley, 137 Wn.2d 500, 507, 974 P.2d 316 (1999) (allowing amendment after arbitration "would deprive [nonmoving party] of the opportunity to have the issues resolved at arbitration"); Dewey, 95 Wn. App. at 28 (where defendant had previously devoted two pretrial motions to theories raised in original pleadings and had prepared for trial on remaining claims, allowing amendment at close of plaintiff's case would have prejudiced defendant); Doyle, 31 Wn. App. at 130-31 (amendment after judgment disrupts the course of proceedings).
We requested supplemental briefs on the impact, if any, of Wright v. Terrell, 162 Wn.2d 192, 170 P.3d 570 (2007) on the claims in this case. The parties agree that Wright addressed a former version of the claim filing statute, and that the statute was amended shortly before the filing of Turner's complaint. Although Turner attacks that amendment on various grounds, those arguments exceed the scope of our order directing additional briefing and, therefore, are not properly before us.