Baird v. Larson

• Court: Washington Court of Appeals
• Writing for the Court: SHIELDS; GREEN, Acting C.J., and THOMPSON
• Citation: Baird v. Larson, 801 P.2d 247, 59 Wn.App. 715 (Wash. App. 1990)
• Decision Date: 06 December 1990
• Docket Number: No. 10128-2-III
• Parties: Frank P. BAIRD and Virginia M. Baird, husband and wife, Plaintiffs, v. David S. LARSON and Lanna Larson, husband and wife, Appellants, Donald Reddington, Respondent.

Page 715

59 Wn.App. 715

801 P.2d 247

Frank P. BAIRD and Virginia M. Baird, husband and wife, Plaintiffs, v. David S. LARSON and Lanna Larson, husband and wife, Appellants Donald Reddington, Respondent.

No. 10128-2-III.

Court of Appeals of Washington Division 3, Panel Four.

Dec. 6, 1990.

Michael A. Arch, Thomas E. Janisch, Foreman & Arch, Wenatchee, for appellants.

Robert Dollinger, Gil Sparks, Ogden, Murphy & Wallace, Wenatchee, for respondent.

SHIELDS, Judge.

In a suit for breach of contract, the court entered judgment in favor of Frank and Virginia Baird against David and Lanna Larson. David Larson appeals an award made in a separate order of expert witness and attorney fees to Donald Reddington, a certified public accountant (CPA) who testified at the trial. We reverse and dismiss.

Dr. Baird sold his practice to Dr. Larson, a competing Wenatchee orthodontist. During negotiations, Mr. Reddington, a Wenatchee CPA, was hired by both parties to appraise Dr. Baird's practice. The parties finally agreed on terms and Dr. Larson took over the practice. Dr. Larson defaulted; Dr. Baird filed suit. Dr. Baird listed Mr. Reddington as an expert witness in response to discovery requests. Dr. Larson gave notice of his intent to take Mr. Reddington's deposition. However, at the time his deposition was to be taken, Dr. Baird's attorney informed Dr Larson and his attorney "Mr. Reddington is not my expert witness, he is a witness in the case, and I intend to ask him questions here today just as you're asking them ...". Both parties deposed him.

Following the deposition, Mr. Reddington billed Dr. Larson $576 for time spent preparing for, attending, and reviewing the deposition. Dr. Larson's attorney sent him a check for $25, the statutory witness fee under RCW 2.40.010 and RCW 2.36.150, with a letter indicating defendants were treating Mr. Reddington "as a non-expert, occurrence witness to the facts involved in this case."

On May 25, 1989, Mr. Reddington wrote to the trial court asking for a clarification of his witness status at the deposition, his billing for $576, and the $25 statutory witness fee tendered by Dr. Larson as payment for his services. The following day, he was served by Dr. Larson with a subpoena and a check for $50 to testify at the trial.

Just prior to opening statements, Mr. Reddington asked for assurance he would be paid an expert witness fee as a condition precedent to his appearance in response to the subpoena. He later asked for assurance of payment for his deposition testimony as well. Dr. Larson's attorney offered to pay Mr. Reddington's expert witness fee "for testimony elicited from him by us". That afternoon Mr. Reddington filed a motion to quash the subpoena, or in the alternative, to award expert witness fees for time spent giving expert testimony at deposition and time spent testifying in trial and for attorney fees in preparing and bringing the motion.

The court heard the motion on June 1, 1989. The court found Mr. Reddington to be an expert witness for purposes of his trial testimony, entitled to an expert fee for his time at his normal hourly rate. The court also found Mr. Reddington entitled to his attorney fees. Payment prior to testimony was not required. The court deferred ruling on the matter of deposition fees at Dr. Larson's request. At the end of the hearing, the court noted for the record it had received a letter from Mr. Reddington which it was filing along with the enclosures attached to it. Neither party objected.

On June 9, 1989, Dr. Larson called Mr. Reddington to testify regarding his valuation of Dr. Baird's orthodontic practice. Dr. Larson's key defense contention was Mr. Reddington overvalued goodwill and, because both he and Dr. Baird relied on Mr. Reddington's valuation of this item during negotiations, the parties proceeded on the basis of mutual mistake. Dr. Larson challenged Mr. Reddington's valuation of goodwill by first offering the expert testimony of CPAs Robert Neiman and Paul Sletton as to their opinions of its value. He then called Mr. Reddington to testify concerning the method he used in his valuation of goodwill. During Dr. Baird's cross examination of Mr. Reddington, Dr. Baird used Mr. Reddington's testimony to rebut that of Mr. Neiman and Mr. Sletton. After trial, judgment was entered for all payments in arrears plus interest, costs and attorney fees.

On July 10, 1989, the court held a supplemental hearing on the issues of witness fees and additional attorney fees. The court found Mr. Reddington "qualifies as an expert under the rules as it relates to his deposition, as it relates to preparation time for the testimony, and as to his testimony." It therefore concluded Mr. Reddington was entitled to an expert witness fee for both his deposition testimony and his trial testimony, and his preparation time for each. The court also concluded Mr. Reddington was equitably entitled to costs and reasonable attorney fees since he was forced to hire counsel to pursue the expert witness fee question.

After Dr. Larson filed this appeal, a satisfaction of judgment was filed which resolved all matters between Drs. Baird and Larson. The only unresolved matters on appeal are the trial court's award of Mr. Reddington's expert witness fees and his attorney fees and costs. Dr. Larson contends the trial court erred (1) by awarding Mr. Reddington expert witness fees and (2) by awarding Mr. Reddington attorney fees and costs. ¹

As to the first contention, Dr. Larson argues the trial court abused its discretion by awarding Mr. Reddington expert witness fees for both his deposition and trial testimony and preparation time for each. He contends Mr. Reddington was not an expert witness for purposes of CR 26(b)(4) ² at the deposition or at trial, but an occurrence, or fact, witness. Dr. Larson at the deposition and on direct examination at the trial examined Mr. Reddington regarding the method he had used in valuing the practice. Mr. Reddington was an actor in the transaction which gave rise to the controversy. He was treated as such by Dr. Larson at the deposition and on direct...