State Of Washington v. Henry W. & Catherine A. Dailey ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 72423-1-1
Respondent, DIVISION ONE
v.
WILLIAM DAILEY, individually and his UNPUBLISHED OPINION
marital community; CATHERINE A.
DAILEY, individually and her marital
community; JANET SPARKS,
individually and her marital community;
JOHN DOE SPARKS, individually and
his marital community,
Appellants,
DEBORAH A. HIGGINS, individually
and her marital community; MICHAEL
P. HIGGINS, individually and his
marital community; T.E.A.M.
SERVICES LLC,
Defendants. FILED: January 11,2016
Leach, J. — William and Catherine A. Dailey and Janet Sparks appeal from
orders granting summary judgment against them and denying their motion for
reconsideration. They challenge only the trial court's denial of their request for a
continuance of the summary judgment hearing and its award of attorney fees. Because
the trial court did not abuse its discretion in denying the continuance or determining the
amount of fees, we affirm.
No. 72423-1-1/2
FACTS
On July 29, 2013, the Washington State Attorney General's Office filed suit
against Dailey and Sparks for violations of the Consumer Protection Act (CPA), chapter
19.86 RCW, and the estate distribution document act, chapter 19.295 RCW. Appearing
pro se, Dailey and Sparks each filed answers denying the State's allegations.
On February 27, 2014, the State served Dailey with a notice of deposition
scheduled for March 21, 2014. On March 1, 2014, the State served Sparks with a
notice of deposition scheduled for March 28, 2014. On March 19, 2014, both Dailey
and Sparks asked the court to continue the depositions for 60 days so that they could
retain an attorney. Dailey and Sparks submitted nearly identical declarations, stating
that they had been represented by counsel before the filing of the complaint but that
they were currently appearing pro se due to "insufficient funds." Dailey and Sparks
stated that they had contacted a variety of civil legal aid organizations but were not
eligible for assistance, due to the nature of the complaint, and planned to continue
searching for a private attorney they could afford. The trial court denied their request,
finding that "[tjhere is nothing in the declarations of either [Djailey or Sparks that
suggests any change in circumstances, such as promising leads or improving finances,
will occur to enable them to retain an attorney in the next sixty days." The trial court
concluded that "because more than six months have passed without [Djailey or Sparks
being able to find an attorney—despite actively looking—and because there is no
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indication that their situation will improve, continuing their depositions for sixty days will
not change anything."
On April 22, 2014, the State filed a notice for a summary judgment hearing
scheduled for July 25, 2014. On June 3, 2014, attorney Kenneth Kato contacted Jason
Bernstein, one of the two assistant attorneys general prosecuting the case. Mr. Kato
stated that he was "considering" representing Dailey and Sparks but "had not yet
agreed" to do so.
The State filed its summary judgment motion on June 27, 2014. On July 14,
2014, after the deadline for filing responsive pleadings had passed, Dailey and Sparks
moved to continue the summary judgment hearing for two months "to permit [them] to
complete retaining counsel" and "for counsel to file with the court confirming
representation as well as prepare for the motion hearing." In a supporting declaration,
Dailey stated, "I am in the process of retaining counsel" and "I'm very close to
accomplishing this goal after several years with no ability to do so." On July 23, 2014,
both Dailey and Sparks filed supplemental declarations, stating they were retaining Kato
to represent them and that Kato would file a notice of appearance "next week." Neither
Dailey nor Sparks filed a written response to the State's summary judgment motion.
Dailey and Sparks appeared at the summary judgment hearing without counsel.
When the trial court asked if counsel represented them, Sparks responded, "We are
represented, he just has not made a notice of appearance yet." Sparks stated that Kato
had called Bernstein that morning "to assure him that he was representing us and that
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he would be filing a notice of appearance next week." However, Bernstein responded
that Kato told him that "there has been no fee agreement signed" and Dailey and
Sparks were still "trying to get. . . money together." Kato said that Bernstein "could
represent to the court that they were talking to him about representing them," but "[h]e is
not representing them yet."
The trial court denied the continuance, stating,
I recall back in March when I had a motion from you folks, well, written
motion, asking me to continue the deposition. . . . And I denied that motion
as you recall, because I took note of how long it had been since the case
was active. How long it had been that the other side had been trying to
schedule your deposition and yet still no attorney.
And now here we are four months down the road from that and still
no attorney. I know that you are talking to one, but that's—that's—there is
a significant difference to me between talking to an attorney, trying to
retain an attorney, and actually retaining an attorney. And if you had
found one, and if your attorney had filed a Notice of Appearance and said,
Hey, Your Honor, I have agreed to represent them, I see there is ten
binders that have been filed of materials for the summary judgment
motion. I hope you understand that it's going to take me a little bit to come
up to speed. I'd be very sympathetic, but that's not the situation that I
have in front of me.
So I'm certainly sympathetic to the lack of an attorney that you have
found themselves with. I am sympathetic to the reasons for that. But our
constitution both state and federal does not provide someone with the
right to an attorney in a civil proceeding such as this. And so we need to
proceed. We are where we are. So I'll issue, you know, just a very short
simple written order that you folks are here and I wanted you to have the
benefit of understanding where I am coming from in terms of denying your
motion for a continuance, okay?[1'
The trial court noted that Dailey and Sparks had filed no response to the summary
judgment motion but permitted them to present argument at the hearing. Dailey
1 The trial court did not enter a written order denying the motion for a
continuance.
No. 72423-1-1/5
responded, "I am not allowed to talk," and Sparks stated, "We'll just have to let this be
granted and deal with it after the citation [sic]." The trial court granted summary
judgment. It found that Dailey and Sparks' actions violated the CPA and ordered Dailey
and Sparks to pay restitution in the amount of $29,125. The trial court also awarded the
State reasonable attorney fees and costs under RCW 19.86.090.
On August 1, 2014, Kato filed a notice of appearance on behalf of Dailey and
Sparks. On the same day, Kato filed a motion for reconsideration of the summary
judgment order. As authority, he cited CR 59(a)(1) ("[irregularity in the proceedings of
the court, jury, or adverse party, or any order of the court, or abuse of discretion, by
which such party was prevented from having a fair trial") and CR 59(a)(9) ("substantial
justice has not been done"). Kato admitted that "he was not formally retained until after
the hearing and entry of the summary judgment order" but that the trial court erred in
denying a continuance because Dailey and Sparks had "made a good faith effort to
retain an attorney before a response was due and were successful in doing so, albeit
after summary judgment was entered."
The order denying the motion for reconsideration states,
Defendants had a year to retain an attorney, but failed to do so until after
the hearing. That attorney could have easily provided notice of his
appearance before the hearing, but failed to do so. Regardless, neither
Defendants nor their new attorney has satisfied CR 56(f), the rule that
governs continuances of a summary judgment hearing."
Later, the State submitted a declaration stating the billing rate per hour and the
total number of hours billed by Bernstein, Elizabeth Erwin, a senior assistant attorney
No. 72423-1-1/6
general supervising the case, three paralegals, and an investigator. Dailey and Sparks
objected to the 13.9 hours that Erwin billed to attend their depositions, asserting that
Bernstein handled the depositions and Erwin's presence was duplicative and
unnecessary. The trial court disagreed, concluding that "[g]iven the complexity of legal
matters in a Consumer Protection action, the collaboration and work of two attorneys for
Plaintiff was reasonable" and "[a]s the lead attorney in the case, Ms. Erwin's presence
at depositions does not constitute wasted or duplicative efforts." Dailey and Sparks
appeal.
ANALYSIS
Dailey and Sparks challenge the trial court's denial of their motion for
reconsideration, claiming they were entitled to a continuance in order to retain counsel.
We review a trial court's rulings on motions for continuance and for reconsideration for
abuse of discretion.2 When exercising its discretion, the trial court should consider the
need for a reasonably prompt disposition of the litigation; the possible prejudice to the
adverse party; and the prior history of the litigation, including continuances already
granted to the moving party.3 A court abuses its discretion when it makes a manifestly
unreasonable decision or bases its decision on untenable grounds or reasons.4
Here, Dailey and Sparks do not show that the court abused its discretion. Dailey
and Sparks had attempted to get an attorney since the filing of the complaint on July 29,
2 Coaale v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990).
3 Willapa Trading Co. v. Muscanto, Inc., 45 Wn. App. 779, 785-86, 727 P.2d 687(1986).
4 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
No. 72423-1-1/7
2013, but could not due to their financial circumstances. On March 19, 2014, Dailey
and Sparks asked to postpone their depositions for 60 days in order to hire counsel. At
the end of the 60-day period, Dailey and Sparks were still unrepresented. Even by the
time of the summary judgment hearing on July 25, 2014, Dailey and Sparks still did not
have sufficient funds to reach a fee agreement with Kato. The trial court noted the
length of time Dailey and Sparks spent unsuccessfully trying to hire counsel. Moreover,
the State needed a prompt resolution of the litigation because of the serious allegations
against Dailey and Sparks and the advanced age of its relevant witnesses/victims.
Finally, Dailey and Sparks have not shown how a continuance would have changed the
outcome. Taking all of the circumstances into consideration, we conclude the trial court
did not abuse its discretion.
Dailey and Sparks contend the trial court abused its discretion because it implied
"that counsel should have unethically filed a notice of appearance before being retained
so a continuance could be secured." In doing so, Dailey and Sparks point to the
language in the order denying reconsideration stating Kato "could have easily provided
notice of his appearance before the hearing." Dailey and Sparks misread the trial
court's order. The trial court did not instruct their attorney to file a notice of appearance
before being retained. Instead, the trial court explained that it would have considered
granting a continuance if Dailey and Sparks had retained counsel before the hearing
and counsel had requested a continuance for time to prepare a response but would not
No. 72423-1-1/8
continue the hearing just to give Dailey and Sparks more time to retain counsel. It
decided that they had already had ample time to do so.
Dailey and Sparks challenge the trial court's order granting summary judgment,
contending that because the trial court abused its discretion in denying the motion for
reconsideration, they are entitled to reversal of the summary judgment order. Because
the trial court did not abuse its discretion, we need not further address this claim.
Dailey and Sparks contest the trial court's award of attorney fees. As they did
below, Dailey and Sparks challenge the 13.9 hours that Erwin billed to attend their
depositions when Erwin "asked no questions and contributed nothing to the process."
When calculating an award of attorney fees, a trial court multiplies the number of
hours reasonably expended by the reasonable hourly rate.5 To determine the number
of hours reasonably expended, a trial court "should discount hours spent on
unsuccessful claims, duplicated or wasted effort, or otherwise unproductive time."6 We
review the reasonableness of fees awarded for abuse of discretion.7 The party
challenging the trial court's award must show that the award was unreasonable and
provide a record sufficient to allow this court to review any claimed error.8 We treat
unchallenged findings of fact as verities on appeal.9
5 Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193(1983).
6 Chuonq Van Pham v. Seattle City Light, 159 Wn.2d 527, 538, 151 P.3d 976(2007).
7 Mahler v. Szucs, 135 Wn.2d 398, 434-35, 957 P.2d 632 (1998).
8 Wash. State Commc'n Access Project v. Regal Cinemas, Inc., 173 Wn. App.
174, 219, 293 P.3d 413, review denied. 178 Wn.2d 1010 (2013); RAP 9.2(b).
9 Moreman v. Butcher, 126 Wn.2d 36, 39, 891 P.2d 725 (1995).
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No. 72423-1-1/9
Here, the trial court record contains only 10 pages of Dailey's two-day deposition
and 13 pages of Sparks's two-day deposition. This small fraction of deposition
testimony taken is insufficient to support Dailey and Sparks' claim that Erwin's presence
was unnecessary. Moreover, Dailey and Sparks do not challenge the trial court's
finding that Erwin had 25 years of experience with the Attorney General's Office,
handled the majority of the investigation, and drafted and filed the complaint. Nor do
Dailey and Sparks challenge the trial court's conclusion that this was a complex case
requiring the participation of two attorneys. Given the length of the State's investigation,
the number of victims involved, and the amount of discovery in this case, the trial court
did not abuse its discretion in determining that the requested attorney fees were
reasonable.
The State requests attorney fees and costs incurred in defending this appeal. As
the pf^vailing party, the State is entitled to attorney fees on appeal under RCW
19.863380(1), upon compliance with RAP 18.1.10
~3\ffi rimed.
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WE CONCUR:
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10 RCW 19.86.090; Svendsen v. Stock, 143 Wn.2d 546, 560, 23 P.3d 455 (2001).
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