Stevenson v. Canning, S. 64529-3-I

CourtCourt of Appeals of Washington
Decision Date21 February 2012
Docket Number64792-0-I,NOS. 64529-3-I,S. 64529-3-I


NOS. 64529-3-I


FILED: February 21, 2012


Lau, J. — Karen Stevenson filed a lawsuit after the personal representative of the Mary Louise Canning estate denied her creditor's claim. To avoid the estate's legitimate request to take her deposition, Stevenson responded with a plethora of baseless motions and abusive litigation tactics. Finding no reversible error, we affirm the trial court's order dismissing her lawsuit, impose sanctions under RAP 18.9, and award attorney fees and costs to the estate under RAP 18.1. And because the trial court made no findings to support its substantial reduction of the estate attorney fees and costs request, we vacate the fees and costs judgments and remand for

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proceedings consistent with this opinion.


In January 2005, Karen Stevenson filed a creditor's claim against the estate of Mary Canning ("the estate"). David Canning, personal representative of the estate, rejected Stevenson's claim. Stevenson filed this lawsuit in May 2005, alleging breach of contract and unjust enrichment.

The estate originally noted Stevenson's deposition for November 22, 2005. Stevenson's then-counsel, Gayle Brenchley, filed a notice of intent to withdraw on November 8, so the estate continued the deposition to November 30. Stevenson objected to her attorney's withdrawal, and the estate postponed the deposition. The trial court permitted Brenchley to withdraw on December 9. The estate renoted Stevenson's deposition for January 12, 2006. Stevenson failed to appear.

On January 25, the estate filed a motion to compel Stevenson to appear for her deposition. On February 2, James Bittner served a notice of appearance as new counsel for Stevenson (filed with the court on February 14) and requested that the motion to compel be stricken to allow him time to review the case files. Counsel for the estate agreed, consulted with Bittner, and rescheduled Stevenson's deposition for March 2, 2006.

On February 23, Bittner filed a notice of intent to withdraw as Stevenson's counsel. The notice stated the withdrawal would be effective March 6, 2006, unless Stevenson objected.1 On March 2, while still representing Stevenson, Bittner appeared

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for Stevenson's deposition. Stevenson failed to appear.

On March 16, the estate filed a second motion to compel. On March 24, the trial court ordered Stevenson to contact counsel for the estate

and immediately provide available dates for her deposition which must be taken not later than April 17, 2006. In the event that she does not appear and have her deposition taken prior to that time, then pursuant to Civil Rule 37(b)(2)(C) her Complaint may be dismissed with prejudice upon proper motion filed with this Court.

Stevenson failed to comply, and the estate moved to dismiss her lawsuit based on discovery violations. The trial court granted the motion and dismissed Stevenson's case with prejudice. Stevenson appealed, the estate conceded error, and we reversed. Stevenson v. Canning, noted at 138 Wn. App. 1053, 2007 WL 1537029. We reasoned that the trial court did not "make and affirmatively state on the record findings of a willful violation, the prejudice to the other party, and the court's consideration of lesser sanctions" as required under Rivers v. Washington State Conference of Mason Contractors, 145 Wn.2d 674, 41 P.3d 1175 (2002). Stevenson, 2007 WL 1537029, at *2. We remanded the matter for additional findings. Despite this favorable appellate decision, Stevenson moved the panel to reconsider and petitioned our Supreme Court for review, both of which were denied. On August 20, 2008, we issued the mandate terminating review and remanded to the trial court for proceedings consistent with our opinion.

On August 27, the estate moved to assign the case to a new judge and establish

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a new case schedule.2 Stevenson joined in the estate's motion and "ask[ed] th[e] court to enter a new case schedule order allowing fair trial of this case." The court granted the motion on September 16 and assigned the case to Judge Chris Washington.3

On October 13, the estate served a notice on Stevenson—by e-mail and first class mail—to appear for a deposition on October 24. Stevenson failed to appear. Counsel for the estate contacted Stevenson by e-mail to schedule a CR 26(i) conference, but Stevenson failed to respond other than to indicate she would not participate in a conference until the trial court ruled on her motion to disqualify the estate's counsel.4 On October 29, the estate moved to compel Stevenson to appear for her deposition.5 The court granted the motion on November 17, filed the order on November 21, and the estate's counsel received a copy on November 25. The order required Stevenson to provide available dates for her deposition to be taken on or

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before November 26. The estate moved to amend the order due to tardy notice of the court's discovery order. The court issued an amended February 10, 2009 order:

1. Karen Stevenson is directed to contact Kevin B. Hansen, defendant's counsel, within 14 calendar days from the date of this Order (defined as the date the Order is signed) and provide at least 5 possible dates (during normal business hours on days that the Clerk's Office is open) on which her deposition could be taken, provided that the deposition must occur within 35 calendar days from the date of this Order.
2. Karen Stevenson is ordered to appear for her deposition at the office of defendant's counsel on the date that is chosen by defendant's counsel (of the 5 or more dates referenced above).
3. In the event that Karen Stevenson does not appear and have her deposition taken prior to that time, then pursuant to CR 37(b)(2)(C) her complaint may be dismissed with prejudice upon proper motion filed with this Court.

(Emphasis added.)

That same day, counsel for the estate e-mailed Stevenson to inform her about the court's amended order and asked her to provide him with available dates for her deposition. Counsel also mailed a copy of the order to Stevenson by both first class and certified mail. Stevenson neither contacted counsel nor complied with any aspect of the order. Counsel then e-mailed Stevenson on February 26, asking that she call him at 9:30 a.m. on March 4 or contact him to schedule a more convenient time for a King County Local Rule (KCLR) 37(e) telephone conference. Stevenson e-mailed back on February 27, questioning the court's authority and a reconsideration motion, but made no mention of counsel's attempt to schedule a KCLR 37(e) telephone conference. She neither called counsel on March 4 nor offered alternative dates.

On March 9, 2009, the estate moved to dismiss Stevenson's lawsuit on the

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grounds that she repeatedly refused to appear for her deposition and failed to comply with court orders. The accompanying notice of hearing noted the motion to be heard on March 19, 2009, without oral argument. Stevenson responded with (1) a March 12 motion to continue the hearing, (2) a March 16 response in opposition to the estate's motion to dismiss, and (3) a March 18 declaration in opposition to the motion to dismiss. Stevenson also unsuccessfully moved for a change of judge, even though Judge Washington had earlier made discretionary rulings in the case.

To resolve the discovery dispute, the court attempted to schedule a status conference hearing in a series of e-mails to the parties. On March 24, the court proposed several possible hearing dates and times. Counsel for the estate replied on March 25 with his availability. Stevenson asked about some documents but failed to address her availability for the hearing. The court replied that those documents would be discussed at the hearing, again attempted to obtain available dates from Stevenson, and warned her that "[i]f a mutually agreeable time cannot be found judge Washington will set a date." Stevenson did not respond. The afternoon of March 25, the court scheduled the hearing for April 6, 2009, at 8:30 a.m. On April 3, Stevenson notified the court that she was unavailable but proposed no alternate dates.6 Counsel for the estate appeared at the April 6 hearing. Stevenson did not. The trial court granted the estate's motion to dismiss the case with prejudice due to Stevenson's failure to appear

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or comply with discovery.7 The court also granted the estate's request to file a separate motion for an award of fees and costs. Stevenson moved for reconsideration and "other relief," which the trial court denied on October 29, 2009.

The trial court awarded fees and costs to the estate in two separate orders. On October 29, 2009, the trial court found $28,013.50 in attorney fees and $1,013 in costs reasonable. Yet it inexplicably reduced the total fees and costs award to $9,013. Similarly, on February 11, 2010, the trial court found the estate's request for $10,699 in fees and $230.07 in costs reasonable but reduced the total fees and costs award to $5,230.07.

Stevenson appeals, alleging 54 assignments of error. The estate cross appeals the court's October 29 and February 11 orders awarding attorney fees and costs.8


Standard of Review

Our Supreme Court recently discussed the standard of review for discovery sanctions:


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