Rivers v. STATE CONF. OF MASON CONTRACTORS

• Decision Date: 07 March 2002
• Docket Number: No. 70893-2.,70893-2.
• Citation: 41 P.3d 1175,145 Wash.2d 674,145 Wn.2d 674
• Court: Washington Supreme Court
• Parties: Kathy RIVERS, Petitioner, v. WASHINGTON STATE CONFERENCE OF MASON CONTRACTORS; Keystone Masonry, Inc.; Fairweather Masonry Company; Barkshire Panel Systems, Inc.; East Hill Masonry, Inc.; and J & S Masonry, Inc., Respondents.

41 P.3d 1175

145 Wn.2d 674

145 Wash.2d 674

Kathy RIVERS, Petitioner, v. WASHINGTON STATE CONFERENCE OF MASON CONTRACTORS; Keystone Masonry, Inc.; Fairweather Masonry Company; Barkshire Panel Systems, Inc.; East Hill Masonry, Inc.; and J & S Masonry, Inc., Respondents.

No. 70893-2.

Supreme Court of Washington, En Banc.

Argued November 27, 2001.

Decided March 7, 2002.

Mann & Peck, Mary Ruth Mann, Seattle, for Petitioner.

Stanislaw & Ashbaugh, Richard Harrison Skalbania, John Stephen Riner, Michael R. Fields, Seattle, for Respondents.

SMITH, J.

Petitioner Kathy Rivers seeks review of an unpublished decision of the Court of Appeals, Division One, which affirmed an order of the King County Superior Court dismissing with prejudice her gender discrimination complaint against Fairweather Masonry Company because she did not comply with a court order directing her to follow a discovery order and case event schedule deadlines. We granted review. We reverse and remand for further proceedings in the trial court.

QUESTIONS PRESENTED

The questions presented in this case are (1) whether the Court of Appeals correctly determined that the trial court properly exercised its discretion under Civil Rule (CR) 37 and King County Local Rule (KCLR) 4 in dismissing Petitioner Kathy Rivers' complaint because of her failure to comply with a discovery order and case event schedule deadlines; and (2) whether the trial court's granting of a dispositive motion for dismissal without oral argument constituted an "irregularity" justifying relief from the order to dismiss under CR 60(b)(1).

STATEMENT OF FACTS

Petitioner Kathy Rivers is a journeyman bricklayer.¹ In October 1995, after completing an apprenticeship and working several years in Cincinnati, Ohio, she moved to Seattle, Washington and applied to members of the Washington State Conference of Mason Contractors for bricklaying work.² The Washington State Conference of Mason Contractors is an association of employers of bricklayers.³ Respondent Fairweather Masonry Company is a member of the Association.⁴ From 1995 to 1998 Petitioner was hired by and worked for various employers who are members of the Association. They include Keystone Masonry, Inc., Fairweather Masonry Company, Barkshire Panel Systems, Inc., East Hill Masonry, Inc., and J & S Masonry, Inc. Petitioner claims that during that period the named defendants, including Respondent Fairweather Masonry Company, discriminated against her in hiring practices and treatment because of her gender.⁵ On March 31, 1998 Petitioner Rivers initiated a lawsuit against association members, including Respondent Fairweather Masonry Company, in the King County Superior Court.⁶ Presiding Judge Bobbe J. Bridge entered an order setting case scheduling.⁷

On February 9, 1999 Respondent Fairweather Masonry Company served its first discovery request, interrogatories and request for production of documents upon Petitioner.⁸ The interrogatories asked for calculation of specific damages, the identity of expert witnesses expected to be called at trial and the substance of facts and opinions to which each expert was expected to testify.⁹ Petitioner's responses were due on March 11, 1999, thirty days after the date of service.¹⁰ The conduct related in this case is principally that of counsel for the parties, but Petitioner and Respondent are nevertheless referred to throughout this opinion without necessary distinction between them and their counsel. Absent fraud, the actions of an attorney authorized to appear for a client are binding on the client at law and in equity.¹¹ The "sins of the lawyer" are visited upon the client.¹²

Counsel for Respondent in a letter to Petitioner's counsel on March 8, 1999 reminded her of the deadlines and the requirement for scheduling a KCLR 37(e) conference in the event the discovery responses were not served by March 11, 1999.¹³ In response, counsel for Petitioner requested two additional weeks to serve the discovery answers.¹⁴ Respondent agreed and gave Petitioner until March 25, 1999 to serve the discovery responses on the condition that Petitioner agree to extend the deadline for disclosing possible primary witnesses from March 15, 1999 to April 5, 1999.¹⁵ On March 11, 1999 Judge Donald D. Haley signed the order extending the deadline for disclosure of the primary witness list.¹⁶

On March 25, 1999, the extended date on which discovery responses were due, the parties engaged in a KCLR 37 conference¹⁷ at which time Petitioner requested even more additional time to serve discovery responses.¹⁸ Respondent Fairweather Masonry rejected the request and on March 31, 1999 filed a motion to compel Petitioner to answer the interrogatories and requests for production of documents.¹⁹

In response to Respondent's motion to compel compliance, Petitioner's counsel on April 5, 1999 submitted to the court a signed declaration explaining why she was unable to provide discovery responses.²⁰ She stated that her "bad cold," coupled with her client's unavailability, prevented her from completing the interrogatories.²¹ Counsel indicated she was completing the interrogatories that day, but would need at least three additional days to obtain her client's approval and signature.²² She asked the court "to allow until April 12, 1999 to provide signed answers to Respondent's counsel, Mr. Campos, and to extend the witness disclosure date [from April 5, 1999] to April 19, 1999...."²³

Respondent then submitted to the court a proposed order granting its motion to compel Petitioner to answer discovery requests.²⁴ The proposed order referred to the first extended date of April 12, 1999 as the deadline agreed to by counsel for Petitioner for answering Respondent's first set of interrogatories.

On April 16, 1999 Judge Haley signed Respondent Fairweather's order approving its motion to compel discovery, and made findings that:²⁵

(1) Plaintiff [Petitioner Rivers] failed to answer Defendant's [Respondent Fairweather Masonry Company's] First Interrogatories and Requests for Production of Documents within 30 days of service as required by Civil Rule 33[.]

(2) Plaintiff did not object to Defendant's First Interrogatories and Requests for Production of Documents, and any objections are therefore waived.

(3) Plaintiff failed without excuse to answer Defendant's First Interrogatories and Requests for Production of Documents by March 25, 1999, the deadline established by agreement with Defendant.

(4) Plaintiff has demonstrated an inability to respect the deadlines established by the Civil Rules and the Case Schedule, as well as a willingness to ignore deadlines established by agreement with defense counsel, and the Court, therefore, deems it necessary to take action to encourage future compliance.

The court ordered Petitioner to fully answer Respondent's interrogatories and requests for production of documents by April 12, 1999, and warned that any failure to comply with another discovery deadline or case event deadline in the future would result in dismissal of her case with prejudice.²⁶

On April 13, 1999 Petitioner sent to Respondent's counsel by telefacsimile a confirmation of joinder form.²⁷ Replying by letter by telefacsimile on April 14, 1999, Respondent's counsel advised he would not sign the form because Petitioner had not complied with discovery requests and deadlines for disclosing possible witnesses²⁸ and that he would not sign the confirmation of joinder form until a date certain had been established for the status conference with approval by the court.²⁹

On April 20, 1999 Petitioner received by regular mail the court's April 16, 1999 order to compel discovery requiring compliance by April 12, 1999, which antedated both the date of the order and the date it was received by Petitioner, although this was the extended deadline date previously requested by Petitioner.³⁰ Petitioner served answers to Respondent's interrogatories on April 21, 1999, one day after she received the court's order in the mail.³¹ The following day, on April 22, 1999, Petitioner served Respondent with amended answers and submitted a proposed joint status report.³² On April 26, 1999 Respondent wrote to Petitioner stating that section IV of the proposed joint status report, which stated that Petitioner had fully complied with discovery, was not correct and that Petitioner still had not fully answered interrogatories and requests for documents.³³ Respondent also noted that objections made by Petitioner were contrary to the court's ruling that Petitioner had waived all objections by not objecting to Respondent's first discovery requests.³⁴

On April 27, 1999 Respondent moved to dismiss Petitioner's complaint with prejudice because Petitioner had not complied with the court's order compelling discovery and had not complied with the case event schedule deadlines.³⁵ Petitioner opposed the motion by memorandum dated May 4, 1999. On May 6, 1999 the trial court, Judge Haley, agreed with Respondent and by letter ruling granted Respondent's motion, making the following findings:³⁶ 1. Plaintiff violated this Court's April 16, 1999, order by failing to fully answer Defendant's first interrogatories and requests for production of documents no later than April 12, 1999; Plaintiff did not provide complete answers; Plaintiff asserted objections when the Court had already ruled all objections were waived; and Plaintiff has, to date, still not fully answered Defendant's interrogatories;

2. Plaintiff has failed to meet Civil Case Scheduling deadlines by failing to disclose possible primary witnesses, which were due April 5, 1999; by failing to timely file a Confirmation of Joinder which was due September 8, 1998; and by failing to file a Joint Status Report by April 19, 1999, deadline.

3. The court has considered lesser sanctions of terms and exclusion of testimony, but has determined that dismissal of Plaintiff's complaint with prejudice is the only appropriate remedy given the...