Landberg v. Carlson

• Decision Date: 23 October 2001
• Docket Number: No. 18644-0-III.,18644-0-III.
• Citation: 108 Wash.App. 749,33 P.3d 406
• Parties: Ronald C. LANDBERG, Sr., a single person and Kathleen L. Landberg, a single person, Appellants, v. John L. CARLSON, a single person, Respondent.
• Court: Washington Court of Appeals

33 P.3d 406

108 Wash.App. 749

Ronald C. LANDBERG, Sr., a single person and Kathleen L. Landberg, a single person, Appellants, v. John L. CARLSON, a single person, Respondent.

No. 18644-0-III.

Court of Appeals of Washington, Division 3, Panel Five.

October 23, 2001.

Ronald C. Landberg, Kathleen L. Landberg, Milton, for Appellants.

Michael J. McLaughlin, Newport, for Respondent.

BROWN, J.

Ronald Landberg, Sr. and his sister Kathleen L. Landberg claimed an easement across John L. Carlson's land. After refusing to consider the Landbergs' offer of oral testimony made for the first time at the hearing on Mr. Carlson's summary judgment motion, the trial court dismissed the Landbergs' suit and awarded Mr. Carlson attorney fees. Because the Landbergs failed to give notice before requesting oral testimony, the trial court did not err. Because the Landbergs failed to establish the unity of title element of an implied easement, we affirm, but vacate the attorney fee award because it is unsupported in this record.

FACTS

Mr. Landberg owns three parcels of real property in Pend Oreille County. Ms. Landberg owned an adjoining fourth parcel. Ms. Landberg's parcel was lost to Mr. Carlson following bankruptcy proceedings when Mr. Carlson foreclosed on a security instrument. The Landbergs filed a lis pendens, and then a pro se complaint against Mr. Carlson alleging various tort claims and an "existing easement" across Mr. Carlson's newly acquired real property.

The trial court denied Mr. Carlson's CR 12(b)(6) motion to dismiss the easement matter, but granted the motion with regard to the Landbergs' other claims. The trial court also advised the Landbergs to "get some kind of legal help" on their easement claim. Report of Proceedings (RP) (December 31, 1998) at 12. Mr. Carlson then filed a properly supported summary judgment motion. The Landbergs failed to respond with any pleadings, affidavits, depositions, or other documentation. At the summary judgment hearing, the Landbergs used aerial maps to explain why they needed the easement and offered a neighbor's testimony. The trial court granted summary judgment to Mr. Carlson after noting the absence of affidavits or other admissible opposing documentation and declined to consider the Landbergs' tardy offer of oral testimony. The court stated:

What I'm telling you that this motion for summary judgment is controlled and my actions are controlled by Rule 56 of the Civil Rules. If you read that rule, then I am required to decide this only on affidavits. So my hands are tied. I am not allowed to consider anything outside the affidavits and the, of course the legal memoranda and the legal arguments that are made. I am not allowed to consider factual matters that are not reduced to affidavits for the hearing.

RP (April 15, 1999) at 18-19.

The Landbergs unsuccessfully sought reconsideration. The trial court dismissed the easement claim, terminated the lis pendens, and, without explaining its reason, awarded Mr. Carlson $750 in attorney fees. The Landbergs appealed.

ANALYSIS

A. Oral Testimony at Summary Judgment Hearing

The issue is whether the trial court erred as a matter of law when refusing to consider the Landbergs offer of oral testimony made for the first time at the summary judgment hearing.

"`The function of summary judgment is to determine whether there is a genuine issue of material fact requiring a formal trial.'" Chase v. Daily Record, Inc., 83 Wash.2d 37, 42, 515 P.2d 154 (1973) (quoting Leland v. Frogge, 71 Wash.2d 197, 200, 427 P.2d 724 (1967)). "Summary judgment is a procedure for testing the existence of a party's evidence." Cofer v. County of Pierce, 8 Wash.App. 258, 261-62, 505 P.2d 476 (1973). In a summary judgment hearing, "`[t]he evidence before the judge is that contained in the pleadings, affidavits, admissions and other material properly presented.'" Chase, 83 Wash.2d at 42, 515 P.2d 154 (quoting Leland, 71 Wash.2d at 200, 427 P.2d 724).

CR 56 generally governs summary judgment procedures in Washington courts. CR 56(c) provides that a party opposing a summary judgment motion "may file and serve opposing affidavits, memoranda of law or other documentation not later than 11 calendar days before the hearing." Application of a court rule to the facts is a question of law subject to de novo review on appeal. Wiley v. Rehak, 143 Wash.2d 339, 343, 20 P.3d 404 (2001).

"The word `may' usually implies `permissive, optional, or discretional, and not mandatory action or conduct.'" State v. Pineda-Guzman, 103 Wash.App. 759, 763, 14 P.3d 190 (2000) (quoting BLACK'S LAW DICTIONARY 979 (6th ed.1990)), review denied, 143 Wash.2d 1021, 25 P.3d 1019 (2001). The Landbergs contend CR 56(c) permits oral testimony at the summary judgment hearing.

In Washington, a trial court may allow oral testimony at a summary judgment proceeding. See Leland, 71 Wash.2d at 202, 427 P.2d 724 (noting prevailing appellant relied not upon affidavits but upon other evidence including testimony); Lampson Universal Rigging, Inc. v. WPPSS, 44 Wash. App. 237, 241, 721 P.2d 996 (1986) (upholding use of evidentiary hearing to resolve summary judgment motion).

In this connection, CR 43(e)(1) states: "When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions." Some federal courts interpreting the federal counterpart to Rule 43(e) have held that it is applicable to summary judgments notwithstanding the lack of similar language in Rule 56(c). See, e.g., Hayden v. First Nat'l Bank of Mt. Pleasant, Texas, 595 F.2d 994, 997 (5th Cir.1979). State courts in several jurisdictions have applied similar reasoning in allowing oral testimony in summary judgment hearings. See, e.g., Deckard v. Mathers, 152 Ind.App. 440, 284 N.E.2d 92, 96 (1972); Daniels v. Paddock, 145 Mont. 207, 399 P.2d 740, 743 (1965); Summers v. Am. Reliable Ins. Co., 85 N.M. 224, 511 P.2d 550, 552 (1973); Dudley v. East Ridge Dev. Co., 694 P.2d 113, 114-15 (Wyo. 1985).

Moreover, a number of these courts have reasoned that a trial court's decision whether to allow oral testimony at a summary judgment hearing is discretionary. See, e.g., Deckard, 284 N.E.2d at 96; Summers, 511 P.2d at 552; Dudley, 694 P.2d at 114-15. The language of CR 43(e)(1) further supports this proposition when it states that the trial court "may" allow oral testimony at a hearing on a motion. See also Summers, 511 P.2d at 552 (noting that a motion for summary judgment "is, after all, a motion," and New Mexico version of CR 43(e) "permits the court to hear oral testimony at a hearing on a motion"). But see Golay v. Loomis, 118 Idaho 387, 797 P.2d 95, 99 n. 3 (1990) (reasoning Idaho Rule 56 does not permit oral testimony at summary judgment hearing notwithstanding permissive language of Rule 43(e)). Given the foregoing, we consider the better practice is to allow trial court discretion to permit oral testimony at a summary judgment hearing.

Here, the record affords the Landbergs the latitude to argue that the trial court mistakenly believed it lacked discretion to allow oral testimony as a matter of law under Rule 56(c). Nevertheless, the trial court's decision to reject such testimony was correct because the record supports other proper grounds for rejecting the tardy request for oral testimony. LaMon v. Butler, 112 Wash.2d 193, 200-01, 770 P.2d 1027 (1989).

No notice was given beforehand that the Landbergs intended to rely on oral testimony. CR 56(c) requires the party opposing summary judgment to file and serve responsive pleadings and other documentation "not later than 11 calendar days before the hearing." See also McBride v. Walla Walla County, 95 Wash.App. 33, 37, 975 P.2d 1029, 990 P.2d 967 ("The trial court was not required to consider the declaration because it was untimely."), review denied, 138 Wash.2d 1015, 989 P.2d 1137 (1999).

Under CR 56(f) the trial court may deny summary judgment or order a continuance if the party opposing summary judgment can show, by way of affidavit, that he is unable, "for reasons stated, present by affidavit facts essential to justify his opposition[.]" Illustratively, courts in other jurisdictions have noted an element of unfair surprise that oral testimony could inject into a summary judgment proceeding. See Hayden, 595 F.2d at 997; Deckard, 284 N.E.2d at 96; Summers, 511 P.2d at 552; Dudley, 694 P.2d at 115 (citing Summers with approval). Prior notice that a party intends to rely on oral testimony would give the opposing side a fair opportunity to prepare a response. Hayden, 595 F.2d at 997. And the proponent of such testimony should make a sufficient offer of proof. Dudley, 694 P.2d at 115.

CR 43(e) provides guidance for trial courts confronted with the problem of whether to allow oral testimony at a summary judgment hearing. First, CR 43(e)(1) lends support for our conclusion that a trial court has the discretion to allow oral testimony at a hearing on a summary judgment motion. Next, CR 43(e)(2), referring to injunctions, etc., provides that "[o]ral testimony shall not be taken on such hearing unless permission of the court is first obtained and notice of such permission served upon the adverse party at least 3 days before the hearing."

Logic and common sense require a ruling in advance of a summary judgment hearing to permit oral testimony. At such time, the court may consider why affidavit, deposition, interrogatory, or other similar evidence is unavailable and whether a continuance may be necessary as provided by CR 56(f). And, CR 56(f) requires a proper motion supported by affidavit.

Here, Pend Oreille County follows the Douglas County local rules. Douglas County LR 56(j) requires "[a]ny material offered at a time later than required by this rule over objection of counsel shall not be accepted and considered by the court except...