Agranoff v. Jay

• Court: Washington Court of Appeals
• Writing for the Court: McINTURFF; GREEN, C.J., and MUNSON
• Citation: Agranoff v. Jay, 512 P.2d 1132, 9 Wn.App. 429 (Wash. App. 1973)
• Decision Date: 26 July 1973
• Docket Number: No. 575--III
• Parties: Gregor H. AGRANOFF and Shirley H. Agranoff, his wife, Appellants, v. Ferdie JAY and Jane Doe Jay, his wife, d/b/a Tri Basin Realty, Respondent and Cross-Appellant.

Page 429

9 Wn.App. 429

512 P.2d 1132

Gregor H. AGRANOFF and Shirley H. Agranoff, his wife, Appellants, v. Ferdie JAY and Jane Doe Jay, his wife, d/b/a Tri Basin Realty, Respondent and Cross-Appellant.

No. 575--III.

Court of Appeals of Washington, Division 3.

July 26, 1973.

Rehearing Denied Aug. 16, 1973.

Review Denied Sept. 25, 1973.

Efrem Z. Agranoff, Everett, and E. Edward Allan of Moe & Allan, Ephrata, for appellants.

K. D. Peterson of Milne & Peterson, Ephrata, for respondent.

McINTURFF, Judge.

This is an action by plaintiffs against the defendant real estate broker, contending: (1) defendant breached a fiduciary relationship owed by a real estate broker to his client by negligently failing to protect the sellers' interest in not preparing and executing a rental agreement when giving purchaser possession prior to closing- ; (2) defendant was guilty of unauthorized practice of law by preparing an earnest money agreement in a manner which did not rise to the standard of care attributable to an attorney; and (3) defendant was guilty of malicious prosecution when he filed an involuntary petition in bankruptcy maliciously and without probable cause.

Defendant counterclaimed for a $2,700 real estate commission. The trial court dismissed the plaintiffs' causes of action, entered findings of fact and conclusions of law adverse to plaintiffs, and granted judgment for $1,500 on the defendant's counterclaim, less a set-off of $544.70 because of defendant's failure to comply with CR 36. Both parties appeal.

Prior to March 1970, plaintiffs owned and operated a hotel located in Soap Lake, Washington. Defendant Ferdie Jay, d/b/a Tri Basin Realty, showed the hotel property to Rosetta Hazan. On March 11, 1970 he prepared an earnest money agreement which was signed by the parties. The earnest money agreement provided for a total sales price of $45,000, with a note of $5,000 given as downpayment. It further provided that Mrs. Hazan would be entitled to possession on closing of the real estate transaction. However, prior to closing, Mrs. Hazan took possession of the premises in April 1970 with consent of plaintiffs, but in opposition to defendant's advice, and remained on the premises until November 1970 without paying any rent. No rental or occupancy agreement was prepared or suggested by defendant Jay. The real estate transaction failed to close, and plaintiffs commenced this action in February 1971.

After the sale failed to close on November 10, 1970, plaintiffs transferred the hotel property by deed to their son for love and affection. On March 8, 1971, without a full investigation into the assets of plaintiffs, and upon the advice of counsel, defendant filed an involuntary petition in bankruptcy, listing plaintiffs as creditors. The petition in bankruptcy was dismissed upon motion for summary judgment on May 12, 1971.

Thereafter plaintiffs amended their complaint and alleged as a further cause of action that the filing of the involuntary petition in bankruptcy was done maliciously, intentionally and without probable cause. Defendant's answer denied the essential elements of plaintiffs' amended complaint, and counterclaimed for a realtor's fee of $2,700.

This is primarily a factual appeal. Plaintiffs assign as error four findings of fact entered by the trial court, the conclusions of law based thereon, and the refusal to enter six proposed findings. The appellate issue raised by these assignments of error concerns whether there is substantial evidence to sustain the findings. We have read the record and decide that the findings as entered by the trial court are supported by substantial evidence. See Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959); see also Wells v. Scott, 75 Wash.2d 922, 454 P.2d 378 (1969). We have reviewed pertinent Washington cases and conclude that the findings of fact taken as a whole sustain the challenged conclusion of law. Cf. Hollingbery v. Dunn, 68 Wash.2d 75, 411 P.2d 431 (1966).

Further, there is no error in the trial court's failure to enter plaintiffs' proposed findings of fact. Since there is substantial evidence to support the findings entered by the trial court we conclude that those findings cover all the material issues. There is no reversible error in failing to enter plaintiffs' proposed findings.

The next contention of plaintiffs concerns discovery.

ISSUE: Whether a list of witnesses to be called at trial is subject to discovery under CR 26(b)(1).

In August 1971 plaintiffs mailed written interrogatories to the defendant. Interrogatory 16 requested defendant to

please give a complete list of all witnesses you intend to call upon the trial of this matter, giving their complete names, addresses, a brief statement as to what each witness will testify to. This interrogatory is intended to extend to all witnesses known to you or to your attorney, and shall be considered a continuing interrogatory.

To this interrogatory the defendant sent the following answer- : 'The foregoing is within the purview of the attorney's work product rule, and is not a proper subject for discovery.'

At trial, plaintiffs' counsel made a motion to exclude and prohibit witnesses from testifying because their names were not disclosed pursuant to the above interrogatory. However, the trial court allowed the witnesses to testify.

CR 33(b) provides as follows:

Interrogatories may relate to any matters which can be inquired into under Rule 26(b), . . .

CR 26(b)(1) provides in part as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, . . . including . . . the identity and location of persons having knowledge of any discoverable matter.

Essentially, counsel contends that they are entitled to a list of the witnesses intended to be called by the opposing party at the trial. Authorities distinguished between being required to disclose the names and addresses of those persons to be called as witnesses at the trial of the cause, and those who have knowledge of facts relevant to a cause of action or defense.

Discovery of witnesses having knowledge of facts relevant to the lawsuit is apparently available under Federal Rules of Civil Procedure 26(b) and 33, and state counterparts; nevertheless, it is also the view of most of the cases that discovery of witnesses whom the opposing party intends to call At the trial of the cause is Not available under the applicable rules, although there is some recognition of the right to discover the identity of prospective witnesses, in some circumstances at least.

(Footnotes omitted. Italics ours.) 19 A.L.R.3d 1114, 1116 (1968).

Although the majority of jurisdictions would only allow the names of witnesses having knowledge of the facts, as opposed to names of witnesses to be called at trial, the states of Arizona, Michigan, Missouri, New Jersey, Pennsylvania and California grant the right to acquire the names of witnesses to be used at the trial. 19 A.L.R.3d 1114 (1968).

The leading case in our state on this subject is Sather v. Lindahl, 43 Wash.2d 463, 261 P.2d 682 (1953). The plaintiff 4 days before trial, answered, 'Not that I know of,' in response to the question, 'Do you know of any witnesses to this accident?' The plaintiff in fact knew of four or five witnesses who testified at trial. The court said at page 465, 261 P.2d at page 682:

When, after denying knowledge of witnesses which he in fact had, a litigant produces those witnesses at the trial, the adverse party should object to their being permitted to testify and, if they are permitted to testify, should move that their testimony be stricken. The trial judge can sustain such an objection and refuse to permit the witness to testify or can order his testimony stricken; or he can grant a continuance to give the surprised party an opportunity to investigate the witness and secure rebuttal testimony; and it is possible that, under circumstances in which no other relief or penalty could remedy the situation created by the deception, he could grant a mistrial.

The court infers, on page 466, 261 P.2d at page 683, that the alternative suggested should be used 'before resorting to the drastic and costly remedy of a mistrial.'

We must keep uppermost in our minds that the fundamental reason for our judicial system is justice, which we attempt to reach by searching for the truth under a system of fairness. The courtroom is not a ballpark, nor the trial a ball game. The trial is serious and the rules governing that search for truth are to be...