Just Dirt, Inc. v. Knight Excavating, Inc.

157 P.3d 431
CourtCourt of Appeals of Washington
DecidedMay 1, 2007
Docket34815-2-II
StatusPublished
Cited by26 cases

This text of 157 P.3d 431 (Just Dirt, Inc. v. Knight Excavating, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Just Dirt, Inc. v. Knight Excavating, Inc., 157 P.3d 431 (Wash. Ct. App. 2007).

Opinion

157 P.3d 431 (2007)

JUST DIRT, INC., a Washington Corporation, Respondent,
v.
KNIGHT EXCAVATING, INC., a Washington Corporation and Developers Surety and Indemnity Company as Surety for Knight Excavating, Appellants.

No. 34815-2-II.

Court of Appeals of Washington, Division 2.

May 1, 2007.

*433 Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, WA, Anne Elizabeth Melley, Attorney at Law, Normandy Park, WA, for Appellants.

Jacqueline A. Mcmahon, Attorney at Law, Orting, WA, for Respondent.

HOUGHTON, C.J.

¶ 1 Knight Excavating, Inc. appeals a trial court's award of attorney fees to Just Dirt, Inc., claiming that the trial court abused its discretion in awarding fees and erred in failing to enter findings of fact and conclusions of law. We agree and reverse and remand for further proceedings.

FACTS

¶ 2 On November 1, 2004, Just Dirt sued Knight for breach of an oral rental equipment contract. Michael Siefkes, Knight's attorney, answered and counterclaimed. Just Dirt moved for summary judgment.

¶ 3 Knight responded to Just Dirt's motion with a declaration of its president, Malcolm Knight. The declaration contained an allegation that the business partner of Just Dirt's president was in jail.

¶ 4 In response, Just Dirt moved for sanctions against Knight and/or Siefkes, claiming the allegation was an "abuse of process" and irrelevant. Clerk's Papers (CP) at 90. The trial court denied the motion for summary judgment but gave Just Dirt the option to renew its motion after the discovery cut-off date. The trial court did not address Just Dirt's sanction request.

¶ 5 On September 13, 2005, Just Dirt filed its list of trial witnesses and exhibits. Knight objected, claiming Just Dirt filed tardy pleadings under Pierce County Local Rule (PCLR) 3(b)(2).

¶ 6 On September 16, Knight moved to quash various subpoenas and notices of depositions served by Just Dirt. Knight argued that the date set for the depositions was after the discovery cut-off date and violated CR 30(b)(1).

¶ 7 Just Dirt countered that Siefkes failed to provide timely answers to discovery requests, orally agreed to schedule a deposition after the discovery cut-off date, and noted a deposition for a date after the discovery cut-off date. Just Dirt claimed Knight's motion was "frivolous and baseless" and sought $400 in sanctions. CP at 237. The trial court quashed subpoenas that both sides issued; set specific dates for depositions; established a new discovery cut-off date of January 31, 2006; and reserved ruling on the sanctions issue.

¶ 8 On October 27, Just Dirt moved to amend its complaint to add Knight's surety, Developers Surety and Indemnity Company, as a defendant.[1] Knight responded to the *434 motion, arguing that it lacked a legal basis. Just Dirt replied, and Siefkes filed a response on Knight's behalf, accusing Just Dirt's counsel of intentionally misleading the trial court and filing a reply "rife with inaccuracies." CP at 272.

¶ 9 Just Dirt moved to strike Knight's response to its reply, claiming it contained statements that were "defamatory, untruthful and sanctionable" under CR 11 and PCLR 7. CP at 340. The trial court granted the motion to amend, denied Just Dirt's motion to strike, and did not impose any sanctions.

¶ 10 On November 4, Just Dirt filed an amended complaint, adding Developers Surety as a defendant. On December 6, Alexander Friedrich appeared as counsel on behalf of Developers Surety. Later in January, Siefkes, claiming to be Developers Surety's attorney, filed an answer and a motion for summary judgment on its behalf.

¶ 11 Just Dirt moved to strike this summary judgment motion and filed a supporting declaration, claiming Siefkes never filed a notice of appearance on behalf of Developers Surety. It also sought sanctions based on alleged violations of CR 11 and PCLR 7. The trial court neither granted nor denied the summary judgment motion but noted the apparent conflict of interest in Siefkes representing both Knight and Developers Surety and ordered Siefkes to obtain a waiver from Developers Surety before it heard the matter. The trial court reserved ruling on the issue of terms and sanctions.

¶ 12 On January 20, 2006, Just Dirt again moved for summary judgment, requesting $1,500 in attorney fees if the court granted its motion. In its motion and supporting declaration, Just Dirt did not identify a ground for the trial court to grant an attorney fee award.

¶ 13 On January 31, the discovery cut-off date as established by the trial court's September 16, 2005 order, Siefkes submitted an amended primary witness disclosure. The amended list included 26 witnesses, 14 of which were unknown to Just Dirt.

¶ 14 On February 6, Knight responded to Just Dirt's motion for summary judgment. Just Dirt replied to Knight's response, accusing Siefkes of prejudicing Just Dirt by adding an excessive amount of witnesses on January 31, "blathering" about Just Dirt's president, obfuscating issues, and failing to adhere to the rules of evidence. CP at 723. Just Dirt also requested sanctions for Knight's "failure to adhere to the rules of evidence." CP at 723.

¶ 15 On February 15, Siefkes moved to strike Just Dirt's multiple filings that he had received only via facsimile and requested $1,500 in costs. Siefkes claimed that he and Just Dirt's counsel had never agreed to accept service by facsimile. Just Dirt's counsel responded, claiming that she and Siefkes had agreed to exchange faxed copies of pleadings and noting that Siefkes faxed her the motion to strike her faxed filings. Just Dirt's counsel also accused Siefkes of "perpetrating a fraud" with the trial court. CP at 836.

¶ 16 On March 2, Just Dirt moved for an award of $4,500 in attorney fees against Knight, Siefkes, and Developers Surety.[2] Just Dirt claimed it was entitled to attorney fees based on Knight and Siefkes' violations of CR 11, CR 26(b)(5)(A)(i),[3] CR 56(g), and various Rules of Professional Conduct (RPC). Just Dirt also claimed that Siefkes' refusal to accept faxed pleadings was grounds for fees and/or sanctions.

¶ 17 On March 15, Siefkes and Friedrich filed a notice of withdrawal and substitution of counsel, in which Friedrich withdrew and Siefkes appeared as Developers Surety's counsel.

¶ 18 On March 17, the trial court granted Just Dirt's motion for summary judgment, ordering a judgment against Knight for $24,875.80. The trial court reserved the issue *435 of attorney fees against Knight and its counsel. It also granted Developers Surety's summary judgment motion.

¶ 19 On April 13, Just Dirt's counsel filed a declaration in support of fees, requesting $20,240.79 in fees and $476.24 in costs. This included fees for 26 hours of "responding to motions filed by [Knight] and [its] attorney that were completely baseless"; 69 hours of "propounding discovery, preparing and taking depositions in addition to responding to multiple discovery violations"; 19 hours of "general trial preparation" and an anticipated 4 hours preparing and arguing a reply on its motion for attorney fees. CP at 1056.

¶ 20 Siefkes challenged the request for fees but did not address whether the trial court could award fees based on CR 11, discovery violations, or violations of the RPCs. Siefkes later filed an additional response to the attorney fee request, claiming the "amount of the requested fees is unreasonable under the law." CP at 1091.

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Bluebook (online)
157 P.3d 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/just-dirt-inc-v-knight-excavating-inc-washctapp-2007.