David Cullerton, V Community Action Council Of Lewis, Mason,etal ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
November 15, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAVID J. CULLERTON, a single person, No. 47582-1-II
and CASSANDRA MAHLMEISTER, a single
woman,
Appellants,
v. UNPUBLISHED OPINION
COMMUNITY ACTION COUNCIL OF
LEWIS, MASON AND THURSTON
COUNTIES, a Washington State non-profit
organization; COMMUNITY ACTION
COUNCIL OF MASON COUNTY; JOHN
DOE CONTRACTORS 1-10, et al.,
Respondents.
MAXA, A.C.J. – David Cullerton 1 appeals the trial court’s summary judgment dismissal
of his lawsuit against the Community Action Council of Lewis, Mason and Thurston Counties
(CAC) and the trial court’s denial of his motion for reconsideration. Cullerton alleged that
CAC’s negligent installation of dryer ducting caused a fire that destroyed his mobile home.
We hold that the trial court did not err in granting summary judgment in favor of CAC.
However, we hold that the trial court erred in denying Cullerton’s motion for reconsideration
when Cullerton in support of reconsideration submitted a letter from an expert signed under
1
Cassandra Mahlmeister also was a plaintiff in the trial court. Cullerton represented himself
(and because he is not an attorney could not represent Mahlmeister) and was the primary party
involved in this case. Therefore, we will refer to Cullerton as the only plaintiff and appellant.
No. 47582-1-II
penalty of perjury that created a genuine issue of fact regarding CAC’s negligence and causation
and the trial court stated in its order that it reviewed all pleadings filed in support of the motion.2
Accordingly, we reverse the trial court’s grant of summary judgment in favor of CAC and
remand for further proceedings.
FACTS
In January 2011, CAC provided numerous weatherization and energy efficiency upgrades
to Cullerton’s mobile home, including installing a new dryer ducting system. On June 8,
Cassandra Mahlmeister saw flames coming up from behind the dryer, which was in operation.
The fire spread and destroyed the mobile home.
Cullerton filed a complaint against CAC, alleging that CAC failed to exercise reasonable
care when performing work on his mobile home and that CAC’s negligence was the proximate
cause of the fire. During the course of discovery Cullerton’s attorney withdrew, and Cullerton
subsequently represented himself.
Summary Judgment Evidence
CAC filed a summary judgment motion on liability, arguing that Cullerton failed to
produce evidence that CAC improperly installed the dryer ducting and that the ducting caused
the fire. CAC submitted a declaration from Michael Fitz, a fire cause and origin expert, who
stated that there was no evidence that dryer ducting system caused the fire.
In opposition to summary judgment, Cullerton submitted an unsigned report from fire
investigator Chris Norton of Mason County Fire District No. 5. Norton investigated the scene
after the fire was extinguished and interviewed Cullerton and Mahlmeister. The investigation
2
Cullerton also argues that the trial court erred in denying his motion for relief from judgment
under CR 60(b). Because we reverse on other grounds, we do not consider this argument.
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No. 47582-1-II
report stated that the fire originated in the laundry room, the ignition source probably was heat
from the dryer, and the fire was accidental. The report did not state that CAC improperly
installed the dryer ducting or that the ducting caused the fire.
Cullerton also submitted a letter from electrician Bill Heil that was not signed under
penalty of perjury. Heil’s letter stated that he had reviewed photos of the fire scene, the Norton
report, the Fitz opinion, and the dryer manufacturer’s installation instructions. Heil suggested
that CAC’s ducting installation was improper. But Heil did not state that the improper
installation of the ducting caused the fire.
Summary Judgment Ruling
CAC argued that the Norton report and Heil letter were inadmissible hearsay because
they were not made under penalty of perjury. Cullerton responded by asking the trial court for a
continuance if he needed to certify the documents and cure the hearsay issue. The trial court
denied Cullerton’s request for a continuance because it decided to consider the substance of both
documents even though they were not signed under oath.
The trial court ruled that even considering the Norton report and Heil letter, Cullerton
failed to provide evidence that CAC’s installation of the dryer ducting was the proximate cause
of the fire. Therefore, the trial court granted summary judgment in favor of CAC.
Motion for Reconsideration
Cullerton filed a motion for reconsideration, arguing under CR 59(a)(1) that the trial
court had abused its discretion in granting summary judgment and under CR 59(a)(9) that
substantial justice had not been done. He argued that the evidence submitted created a genuine
issue of material fact on CAC’s liability. He also argued that the trial court should have
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No. 47582-1-II
continued the summary judgment motion to allow him time to locate Norton. Cullerton did not
submit any new evidence with that motion.
A few days later Cullerton filed a motion for relief from judgment under CR 60(b)(3)
based on newly discovered evidence. Cullerton argued that he had obtained new information
about where he could find Norton, who Cullerton was unable to locate before summary
judgment. Attached to Cullerton’s CR 60(b)(3) motion was a second letter from Heil, signed
under penalty of perjury. Heil’s second letter provided a more detailed explanation of how CAC
improperly installed the dryer ducting. The letter concluded, “After reviewing the facts given to
me, I am of the opinion that the fire was caused by excessive amounts of lint build-up caused by
the contractor’s failure [to] follow the manufacturer’s installation recommendations.” Clerk’s
Papers (CP) at 78. Cullerton asked for leniency in considering the new letter because he was a
pro se litigant.
At the hearing on his motions, Cullerton requested a continuance in order to have more
time to try to locate and contact Norton and obtain new evidence from him. The trial court
granted Cullerton’s request and gave him an additional month to find Norton.
Cullerton later filed a supplemental motion that addressed his motion for reconsideration.
In that motion, Cullerton stated that he was unable to contact Norton or obtain any new evidence.
But he noted that he had filed the second letter from Heil in which Heil concluded that CAC’s
failure to follow the manufacturer’s installation recommendations was the cause of the fire. He
also argued, among other things, that the trial court should reconsider its ruling on summary
judgment because CAC had insufficient evidence to support summary judgment.
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No. 47582-1-II
At the hearing following the continuance, the trial court denied Cullerton’s motions. The
trial court entered an order stating that it was denying the supplemental motion after reviewing
all pleadings filed in support of the motion.
Cullerton appeals the trial court’s grant of summary judgment in favor of CAC and denial
of his motions for reconsideration and relief from judgment.
ANALYSIS
A. SUMMARY JUDGMENT ORDER
Cullerton argues that the trial court erred in granting summary judgment because the
Norton report and Heil letter plus his and Mahlmeister’s deposition testimony presented evidence
on proximate cause that created a genuine issue of material fact. We disagree.
We review a trial court’s order granting summary judgment de novo. Keck v. Collins,
184 Wash. 2d 358, 370, 357 P.3d 1080 (2015). Summary judgment is appropriate when, reviewing
the evidence and all reasonable inferences from the evidence in the light most favorable to the
nonmoving party, there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c); Keck, 184 Wash. 2d at 370. “An issue of material fact is
genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
party.” Keck, 184 Wash. 2d at 370.
CAC argues that we cannot consider the unsworn Norton report and Heil letter in our de
novo review. We agree. CR 56(e) requires that evidence offered in opposition to summary
judgment be in the form of sworn affidavits or declarations made under penalty of perjury.
Young Soo Kim v. Choong-Hyun Lee, 174 Wash. App. 319, 326-27, 300 P.3d 431 (2013). The
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No. 47582-1-II
Norton report and first Heil letter were not made under penalty of perjury. Therefore, they could
not create an issue of fact on summary judgment.3
Even if we could consider the unsworn Norton report and first Heil letter, they clearly did
not create a genuine issue of fact regarding proximate cause. Neither document stated or even
suggested that the dryer ducting contributed to the start of the fire.
We hold that the trial court did not err in initially granting summary judgment in favor of
CAC.
B. MOTION FOR RECONSIDERATION
Cullerton argues that the trial court erred in denying his motion for reconsideration. He
claims that the trial court should have granted reconsideration because Heil’s second letter
signed under penalty of perjury stated that CAC’s improper installation of the ducting caused the
fire. We agree.
1. Legal Principles
CR 59(a) provides nine grounds under which a party can move for reconsideration of a
trial court’s decision. E.g., Christian v. Tohmeh, 191 Wash. App. 709, 728, 366 P.3d 16 (2015),
rev. denied, 185 Wash. 2d 1035 (2016). One of the grounds is when there is no evidence to justify
the decision. CR 59(a)(7). We review a trial court’s denial of a motion for reconsideration for
an abuse of discretion. Christian, 191 Wash. App. at 728.
3
We cannot consider the unsworn Norton report and Heil letter on appeal even though the trial
court did consider them. We review de novo the admission of evidence on summary judgment.
See Folsom v. Burger King, 135 Wash. 2d 658, 663, 958 P.2d 301 (1998). Cullerton argues that the
trial court erred by denying his motion for a continuance to allow him to have the Norton report
and Heil letter certified under oath. Because we reverse on other grounds, we do not address this
issue.
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No. 47582-1-II
In general, CR 59 does not prohibit the submission of new or additional evidence on
reconsideration. Martini v. Post, 178 Wash. App. 153, 162, 313 P.3d 473 (2013). However, a trial
court is not required to consider additional evidence on reconsideration. See Chen v. State, 86
Wash. App. 183, 191-92, 937 P.2d 612 (1997). The trial court has discretion whether to consider
new or additional evidence. Martini, 178 Wash. App. at 162.
2. Analysis
Here, Cullerton submitted new evidence on reconsideration – a second letter from Heil,
his expert, signed under penalty of perjury. Cullerton argued in his supplemental motion that
Heil’s second letter supported reconsideration under CR 59(a)(7).4 Heil’s second letter did
provide clear evidence that CAC was negligent in installing the dryer ducting and that this
alleged negligence caused the fire. Therefore, if Cullerton originally had presented that letter in
opposition to CAC’s summary judgment motion, there is no question that the letter would have
created genuine issues of fact that would have precluded the trial court from granting summary
judgment in CAC’s favor.
Similarly, if the trial court exercised its discretion to consider Heil’s second letter on
reconsideration, denying reconsideration in light of those genuine issues of fact would be an
abuse of discretion. The question here is whether the trial court considered this letter in
addressing the motion for reconsideration.
The only basis for considering Heil’s second letter on reconsideration would have been
CR 59(a)(4), “[n]ewly discovered evidence . . . which the party could not with reasonable
diligence have discovered or produced at the trial.” Cullerton did not argue in the trial court and
4
Cullerton also moved for reconsideration based on CR 59(a)(1), irregularity in the court
proceedings, and CR 59(a)(9), that substantial justice has not been done. Because we reverse on
other grounds, we do not address these arguments.
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No. 47582-1-II
does not argue on appeal that Heil’s second letter could not have been produced at the time of the
summary judgment motion. The letter was based on the same materials as the first Heil letter
and Cullerton described the second Heil letter as a more detailed affidavit rather than newly
discovered evidence. Therefore, the trial court in its discretion could have refused to consider
this evidence. See Martini, 178 Wash. App. at 162.
The trial court also had discretion to consider Heil’s second letter. Id. The trial court did
not address or even reference Heil’s second letter in its oral ruling denying Cullerton’s motion
for reconsideration. But in its order denying Cullerton’s supplemental motion the trial court
expressly stated that it “reviewed the motion as well as all pleadings filed in support of the
motion.” CP at 3 (emphasis added). Because Heil’s second letter was referenced in and
supported the supplemental motion (although it was filed earlier), this order indicates that the
trial court exercised its discretion to consider that letter. Further, the trial court never stated
orally or in any order that it was refusing to consider the second Heil letter.
After deciding to consider Heil’s second letter, the trial court was obligated to view all
facts and reasonable inferences from the facts in Cullerton’s favor in determining whether a
genuine issue of fact existed. See Martini, 178 Wash. App. at 166. As noted above, Heil’s second
letter clearly created genuine issues of material fact regarding CAC’s negligence and causation.
Accordingly, because it considered Heil’s second letter, the trial court abused its discretion in
denying Cullerton’s motion for reconsideration.
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No. 47582-1-II
CONCLUSION
The trial court erred in denying Cullerton’s motion for reconsideration. Therefore, we
reverse the trial court’s grant of summary judgment in favor of CAC and remand for further
proceedings.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
WORSWICK, J.
MELNICK, J.
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