IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MATTHEW MERZ, an individual, No. 87782-8-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION HARLYN JENKINS, JILLANE BAROS, MELINDA FINN-KAMERATH, individuals,
Respondents.
COBURN, J. — Matthew Merz sued Harlyn Jenkins, Jillane Baros, and Melinda
Finn-Kamerath for several tort claims and unlawful harassment. After Merz failed to
respond to the motions, a Cowlitz County Superior Court commissioner granted
respondents’ motion for summary judgment dismissal of all claims and granted
respondents’ motion for CR 11 sanctions. Merz, representing himself below and on
appeal, contends that the court was required to sua sponte order a continuance under
CR 56(f), the court’s award of CR 11 sanctions is not supported by adequate findings
and violated his procedural due process rights, and that a superior court judge erred in
denying revision of the commissioner’s order denying Merz’s motion for reconsideration.
We disagree and affirm.
FACTS
In July 2023 Merz sued Jenkins, Baros, and Finn-Kamerath, alleging claims of 87782-8-I/2
slander, libel, defamation, intentional infliction of emotional distress, negligent infliction
of emotional distress, tortious interference with business expectancy, and unlawful
harassment. Merz based his claims on various allegations, including that defendants
published a website about Merz to make him appear like a “violent, racist, sexist,
pedophile yet to be brought to justice” during his tenure as a Kalama city
councilmember. (Internal quotation marks omitted.) Merz alleged that respondents
published on the website that Merz contributed to a comic book containing drawings
that “sexualize an adolescent girl” and that Merz was associated with the head writer
who was arrested and charged with possession of child pornography. Merz asked in
part for “consequential damages in a sum according to proof.” Merz did not submit a
declaration in support of the allegations in his complaint. His complaint was not signed
under the penalty of perjury.
Respondents moved for summary judgment dismissal of the lawsuit with
prejudice under CR 56(c). Respondents asserted, among other reasons, that Merz
failed to provide any evidence to support his claims and stated, “Given the absence of
any genuine issues of material fact and [Merz’s] failure to meet his burden of proof on
each element of [his] claims for all causes of action, the [respondents] are entitled to
summary judgment in their favor on all claims.” Each of the respondents filed individual
affidavits in support of their joint summary judgment motion.
On April 25, 2024, Merz moved to compel discovery and set a discovery
conference. The following month Merz moved to dismiss respondents’ summary
judgment motion based on improper service. At a hearing on May 15, a trial court
commissioner denied Merz’s motions, but granted Merz’s request for additional time for
2 87782-8-I/3
discovery under CR 56(f). That commissioner continued the summary judgment hearing
to July 17. On July 5 Merz moved for another continuance based on respondents’
ostensible failure to produce requested interrogatories, admissions, or documents. The
respondents moved for a protective order and requested sanctions under CR 11. 1 After
a hearing on July 17, the same commissioner granted the motion for a protective order,
limited discovery, and reserved the issue of sanctions for the summary judgment
hearing. The commissioner set a discovery deadline for August 31 and granted Merz’s
continuance motion, rescheduling the summary judgment hearing for September 25.
Respondents provided answers to Merz’s interrogatories and responses to
requests for production on August 30.
At the September 25 hearing, another commissioner observed that Merz did not
appear for the hearing and did not file a response to respondents’ motion for summary
judgment. That commissioner orally granted respondents’ motion for summary judgment
and later entered a written order on October 2 granting the motion and dismissing
Merz’s lawsuit with prejudice.
At the September 25 hearing, respondents’ counsel also inquired about
respondents’ motion for CR 11 sanctions and informed the court that the motion was
before the court with the summary judgment motion after respondents renewed the CR
11 motion following the July 17 hearing. In its October 2 written order, the commissioner
granted respondents’ motion for sanctions under CR 11.
On October 14 Merz moved for reconsideration of the order granting summary
judgment. He requested reconsideration based on “evidence that was not available to
1 The respondents’ motion is not designated in the record on appeal. 3 87782-8-I/4
the court at the time of … [respondents’] Motion for Summary Judgment.” Merz did not
explain why he could not provide the evidence earlier. He stated in his motion that he
“previously prepared a draft of his Opposition to Summary Judgment but has yet to
complete it due to [respondents’] failure to comply with Discovery request.” He claimed
that though he received responses to interrogatories and requests for admissions,
“Defendants have failed to comply with requests for Production of Documents relating to
the … matter.”
Merz claimed that evidence in the record, within his possession, and that was yet
to be provided by respondents in discovery was sufficient to survive summary judgment.
Merz attached several exhibits to his motion, including respondents’ previously filed
individual affidavits, and filed his own sworn declaration. In his declaration, Merz stated
that he missed the September 25 summary judgment due to “a technological error” with
his smartphone calendar. Merz also stated that after he received respondents’
“incomplete [discovery] responses” around August 30, 2024, he experienced health
issues for the next three weeks that prevented him from pursuing a second motion to
compel discovery prior to the summary judgment hearing.
The commissioner denied Merz’s motion for reconsideration. The commissioner
found that the motion was untimely. Additionally, the commissioner stated that “while
[Merz] offers an excuse for why he did not attend the September 25, 2024 hearing on
the summary judgment motion, he offers no explanation for his failure to file any sort of
response to that motion in the more than five months since that motion was filed.”
On October 28 Merz moved for revision of the commissioner’s order denying
reconsideration. Again, he asserted that “an unperceived technological error” prevented
4 87782-8-I/5
him from attending the summary judgment hearing, which would have been avoided if
his health issued did not “delay” him from filing a motion to compel and continuance
request. Merz stated that the evidence he submitted with his motion for reconsideration
“indicates that Discovery was still in progress when the Court granted [respondents’]
Motion for Summary Judgment without [Merz] being present, despite having granted
two Continuances to allow [respondents] time to comply with Discovery.”
A superior court judge denied the motion for revision. In its denial order, the
judge determined that Merz’s motion for reconsideration was timely. The judge noted
that Merz did not file a response to respondents’ summary judgment motion and did not
appear at the summary judgment hearing. Nonetheless, the judge evaluated Merz’s
claims by accepting the allegations in his complaint and motion for reconsideration as
true and considering exhibits that Merz submitted with his motion for reconsideration “to
the extent there are facts relevant to the summary judgment.” The judge stated that it
“consider[ed] facts that were available to the Commissioner on reconsideration of the
summary judgment decision.” Stating it “spent significant time” determining which of
Merz’s allegations supported theories of liability as opposed to extraneous
“commentary,” the judge found that certain alleged acts were time-barred and that Merz
otherwise failed to establish elements necessary for his claims. The judge noted that
each of Merz’s causes of action “are dependent on … findings that [respondents] made
defamatory statements about [Merz].” The judge found in part that Merz did not show
that respondents acted with malice to support that they made defamatory statements or
shared defamatory information about Merz while he was a public official. Specific to
Merz’s allegations against Finn-Kamerath, the judge found that Merz did not establish
5 87782-8-I/6
that Finn-Kamerath shared any false information about Merz and that “[o]ther than
making frequent and unsupported claims that [respondents] acted together, there are no
other specific factual allegations connecting Finn-Kamerath to actions of either [Jenkins
or Baros].”
Merz appeals.
DISCUSSION
As a preliminary matter, we observe that Merz appeals pro se. Though we
acknowledge the inherent difficulties of self-representation, we hold pro se litigants to
the same standards as licensed attorneys and expect them to follow the rules of
appellate procedure. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527
(1993). 2 “‘The law does not distinguish between one who elects to conduct [their] own
legal affairs and one who seeks assistance of counsel—both are subject to the same
procedural and substantive laws.’” Id. (quoting In re Marriage of Wherley, 34 Wn. App.
344, 349, 661 P.2d 155 (1983)). “The scope of a given appeal is determined by the
notice of appeal, the assignments of error, and the substantive argumentation of the
parties.” Clark County v. W. Wash. Growth Mgmt. Hearings Rev. Bd., 177 Wn.2d 136,
144, 298 P.3d 704 (2013) (citing RAP 5.3(a); RAP 10.3(a), (g); RAP 12.1)).
An appellant has the burden of perfecting the record so that the court has before
it all the evidence relevant to the issue raised on appeal. RAP 9.2, 9.6; In re Marriage of
Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266 (1990). An appellant must provide “argument
2 Merz incorrectly cites and quotes Olson, 69 Wn. App. at 626, for the proposition that Washington courts leniently apply rules of appellate procedure to ensure pro se litigant’s claims are decided on the merits. In Olson, we observed that neither the trial court nor this court was obligated to grant special favors to the pro se litigant Olson, regardless of whether his representation of himself was unskilled. 69 Wn. App. at 626. 6 87782-8-I/7
in support of the issues presented for review, together with citations to legal authority
and references to relevant parts of the record.” RAP 10.3(a)(6). “[W]e will not comb the
record to find support for an appellant’s argument.” Fishburn v. Pierce County Planning
& Land Servs. Dep’t, 161 Wn. App. 452, 468, 250 P.3d 146 (2011). We need not
consider arguments not supported by relevant references to the record, meaningful
analysis, or citation to pertinent authority. Norcon Builders, LLC v. GMP Homes VG,
LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011); Cowiche Canyon Conservancy v.
Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
CR 56(f)
Merz contends that the trial court erred in granting summary judgment “while
material discovery was outstanding” without providing a continuance under CR 56(f).
Though he concedes he did not submit a motion for continuance under CR 56(f), Merz
asserts that the court should have recognized that respondent’s summary motion was
“premature” or “allowed supplemental submissions.” Merz claims that the trial court’s
failure to sua sponte order a continuance under CR 56(f) was an abuse of its discretion.
A trial court’s decision on a party’s request to continue a summary judgment
hearing is reviewed for an abuse of discretion. Bldg. Indus. Ass’n of Wash. v. McCarthy,
152 Wn. App. 720, 743, 218 P.3d 196 (2009). A trial court abuses its discretion if it
bases its decision on untenable or unreasonable grounds. Id.
Under CR 56(f), a trial court may continue a summary judgment hearing if the
nonmoving party demonstrates a need for additional time to obtain additional affidavits,
take depositions, or conduct discovery. Winston v. Dep’t of Corr., 130 Wn. App. 61, 64-
65, 121 P.3d 1201 (2005).
7 87782-8-I/8
The trial court may deny a motion for a continuance when (1) the requesting party does not have a good reason for the delay in obtaining the evidence; (2) the requesting party does not indicate what evidence would be established by further discovery; or (3) the new evidence would not raise a genuine issue of fact.
Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003) (citing Tellevik v. 31641 W.
Rutherford St., 120 Wn.2d 68, 90, 838 P.2d 111, 845 P.2d 1325 (1992)). The opinions
that Merz relies upon do not stray from, and indeed apply, this rule. See Turner v.
Kohler, 54 Wn. App. 688, 692-93, 695, 775 P.2d 474 (1989) (holding that trial court did
not abuse its discretion in hearing summary judgment motion based on evidence when
party’s summary judgment affidavits did not mention CR 56(f), request a continuance,
state what evidence was contemplated, or state reason for delay); Coggle v. Snow, 56
Wn. App. 499, 507-08, 784 P.2d 554 (1990) (holding that trial court abused its discretion
in denying motion to continuance where party was unable to produce declarations in
time for summary judgment hearing due to recent change in counsel and identified what
evidence he sought and explained how such evidence would preclude summary
judgment).
In the instant case, Merz was granted two continuances under CR 56(f), which
deferred the trial court’s consideration of the summary judgment motion to September
25. Merz did not move to continue the September 25 date. We have previously held that
“[w]here a continuance is not clearly requested, the trial court does not err in deciding a
summary judgment motion based on the evidence before it.” Bldg. Indus. Ass’n of
Wash., 152 Wn. App. at 743; see also Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18,
24-25, 851 P.2d 689 (1993) (stating that plaintiff cannot claim that the trial court
prematurely granted summary judgment “[b]ecause she did not move for another
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continuance or otherwise indicate to the trial court that she needed more time” and “[t]o
hold otherwise would constitute an unwarranted encroachment on the trial court’s
discretion to dismiss cases which fail to raise genuine issues for trial”). 3 Moreover, to
request a continuance under CR 56(f), a party must submit an affidavit or affidavits
setting forth the evidence the party seeks and how such evidence will defeat summary
judgment. Durand v. HIMC Corp., 151 Wn. App. 818, 828, 214 P.3d 189 (2009). The
affidavit must also explain why additional time is necessary. Briggs v. Nova Servs., 135
Wn. App. 955, 961, 147 P.3d 616 (2006). Merz did not submit any affidavit to the trial
court to support the need for a third continuance prior to its summary judgment ruling. In
his briefing, Merz provides a list of “evidence” that would have been revealed with
additional discovery and claims that such evidence was necessary for him to prove his
defamation claims. He provides no cites to the record to establish if or when he
provided this information to the trial court. See RAP 10.3(a)(6). The trial court did not
abuse its discretion in deciding the summary judgment motion without ordering a third
continuance that Merz did not request and for which he provided no factual or legal
support.
CR 11 Sanctions
Merz challenges the trial court’s award of sanctions under CR 11. We review a
trial court’s issuance of CR 11 sanctions for abuse of discretion. Nguyen v. Quality Loan
Serv. Corp., 33 Wn. App. 2d 602, 605, 562 P.3d 384 (2025). A trial court abused its
discretion if its conclusion was “manifestly unreasonable or based on untenable grounds
3 We further note that “the discovery schedule does not restrict the trial court’s ability … to grant summary judgment when a motion is properly brought.” Guile, 70 Wn. App. at 25 n.4. A discovery schedule is only meant to help the trial court manage the progress of an individual case. Id. 9 87782-8-I/10
or reasons.” Gordon v. Robinhood Fin., LLC, 31 Wn. App. 2d 185, 207, 547 P.3d 945
(2024) (internal quotation marks omitted). CR 11 is intended to discourage “baseless
filings” and curtail “abuses of the judicial system.” Bryant v. Joseph Tree, Inc., 119
Wn.2d 210, 219, 829 P.2d 1099 (1992).
Merz contends that the sanctions order should be reversed for lack of adequate
findings. In so arguing, Merz’s briefing seems to conflate the commissioner’s order
granting CR 11 sanctions with the commissioner’s order denying reconsideration.
Regardless, because the sanctions order is supported by adequate findings, Merz’s
argument fails.
When imposing sanctions under CR 11, a court “‘must make a finding that either
the claim is not grounded in fact or law and the attorney or party failed to make a
reasonable inquiry into the law or facts, or [that] the paper was filed for an improper
purpose.’” State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 904, 969 P.2d 64
(1998) (emphasis added) (quoting Biggs v. Vail, 124 Wn.2d 193, 201, 876 P.2d 448
(1994)). The court applies an objective standard to determine whether a reasonable
attorney in like circumstances could believe their actions to be factually and legally
justified. Bryant, 119 Wn.2d at 220. A trial court must “make explicit findings as to which
filings violated CR 11, if any, as well as how such pleadings constituted a violation.”
Biggs, 124 Wn.2d at 202. 4 CR 11 applies equally to pro se litigants. In re Recall of
Lindquist, 172 Wn.2d 120, 136, 258 P.3d 9 (2011); see Patterson v. Superintendent of
Pub. Instruction, 76 Wn. App. 666, 671, 887 P.2d 411 (1994).
4 To support his argument, Merz cites “Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494 (1997).” Burnet discussed the imposition of sanctions under CR 37(b) for violation of a discovery order, and is thus not applicable to this appeal. See Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). 10 87782-8-I/11
The trial court’s order provides sufficiently explicit findings. In its order, the court
found that Merz’s “claims lack legal and factual merit” and, in addition to granting
summary judgment for the respondents, the court found “it appropriate to grant
[respondents’] Motion for CR 11 Sanctions against [Merz] for filing frivolous claims and
for improper purposes.” “As a result of [Merz’s] egregious conduct, including threats of
physical harm,” the court ordered sanctions under CR 11 and RCW 4.84.185. 5 Merz
does not challenge the court’s findings relating to the sanctions order as erroneous. 6
Such findings are thus verities on appeal. See Jensen v. Lake Jane Estates, 165 Wn.
App. 100, 105, 267 P.3d 435 (2011).
Citing our Supreme Court’s decision in Bryant, 119 Wn.2d 210, Merz argues that
“[t]o the extent the sanctions were imposed without meaningful opportunity for [Merz] to
participate due to the technical failure that prevented [his] attendance at the hearing, the
order may have lacked the procedural safeguards required under due process.”
In the CR 11 context, due process “requires notice and an opportunity to be
heard.” Bryant, 119 Wn.2d at 224. Merz does not contend that he was not provided
notice of the sanctions motion or the September 25 motion hearing, which was
continued from the July 17 hearing at which he was present. Merz also does not show
how, despite having notice and the opportunity to be heard, the trial court erred under
Bryant by deciding the motion after Merz did not appear at the September 25 hearing.
Accordingly, his due process claim fails. See Seven Gables Corp. v. MGM/UA Ent. Co.,
5 Merz does not challenge the adequacy of the trial court’s findings under RCW 4.84.185. 6 Even if Merz did challenge the trial court’s findings underlying its CR 11 order, his failure to designate the respondents’ motion for sanctions deprives this court of a record sufficient for review. See Haugh, 58 Wn. App. at 6; Olmsted v. Mulder, 72 Wn. App. 169, 183, 863 P.2d 1355 (1993); RAP 9.6, 9.2(b). 11 87782-8-I/12
106 Wn.2d 1, 14, 721 P.2d 1 (1986) (quoting United States v. Phillips, 433 F.2d 1364,
1366 (8th Cir. 1970)) (“[N]aked castings into the constitutional sea are not sufficient to
command judicial consideration and discussion.”).
We conclude that the trial court did not abuse its discretion in granting CR 11
sanctions against Merz.
Revision Order
Merz challenges the commissioner’s order denying his motion for reconsideration
under CR 59 and the trial court judge’s order denying his motion for revision of the
commissioner’s order under RCW 2.24.050.
Court commissioners have broad authority under our state constitution. State v.
Karas, 108 Wn. App. 692, 701, 32 P.3d 1016 (2001). Article IV, section 23 provides:
There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.
WASH. CONST. art. IV, § 23 (emphasis added). “The duties of judges ‘at chambers’
include the power to ‘entertain, try, hear and determine, all actions, causes, motions,
demurrers and other matters not requiring a trial by jury[.]’” Karas, 108 Wn. App. at 701
(quoting State ex rel. Lockhart v. Claypool, 132 Wash. 374, 375, 232 P. 351 (1925)).
The legislature cannot remove any of the constitutionally based powers of the courts. 7
7 Merz repeatedly asserts in his brief that RCW 2.24.040 requires court commissioners to submit for judicial approval any orders affecting substantive rights. RCW 2.24.040 does not contain this language, and the legal cites that Merz provides do not support this proposition. We further note that as part of his argument Merz improperly attributes a nonexistent quotation from “the Supreme Court” that “[a]n order that finally determines a claim or defense exceeds the delegated authority of a commissioner” to this court’s decision in State ex rel. McCool v. Small Claims Court of Jefferson County Dist. Court of Port Townsend, 12 Wn. App. 799, 803, 532 12 87782-8-I/13
State ex rel. Henderson v. Woods, 72 Wn. App. 544, 549, 865 P.2d 33 (1994) (citing
Lockhart, 132 Wash. at 377); see Karas, 108 Wn. App. at 701-02 (holding that lack of
express reference in RCW 2.24.040 to permanent domestic violence protection orders
does not limit a commissioner’s authority to issue such orders).
RCW 2.24.050 provides that interested parties may seek revision of a court
commissioner’s acts and proceedings by the superior court. “Such revision shall be
upon the records of the case, and the findings of fact and conclusions of law entered by
the court commissioner.” Under RCW 2.24.050, a court commissioner’s findings and
orders that are not successfully revised become the orders and findings of the superior
court. “A revision denial constitutes an adoption of the commissioner’s decision, and the
court is not required to enter separate findings and conclusions.” Maldonado v.
Maldonado, 197 Wn. App. 779, 789, 391 P.3d 546 (2017).
“Once a judge rules on a motion for revision, any appeal is from the judge’s
decision, not the commissioner’s.” In re Marriage of Tupper, 15 Wn. App. 2d 796, 801,
478 P.3d 1132 (2020) (citing State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004)).
Accordingly, Merz’s arguments regarding the commissioner’s order are outside the
scope of this review and we focus our review on whether the trial court judge abused
the judge’s discretion in denying revision of the commissioner’s order. See In re
Receivership of Applied Restoration, Inc., 28 Wn. App. 2d 881, 889-90, 539 P.3d 837
(2023), review denied, 3 Wn.3d 1012 (2024).
In considering a motion for revision, a trial court reviews a commissioner’s ruling
P.2d 1191 (1975). A party’s citation to nonexistent or misleading authorities violates RAP 10.3(a)(6). Everyone, including pro se litigants, are responsible to confirm their pleadings, motions, briefs, and other filings are accurate and supported by properly represented authority. 13 87782-8-I/14
de novo based on the evidence and issues presented to the commissioner. In re
Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010) (citing RCW
26.12.215; RCW 2.24.050; In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d
1240 (1999)). We review a trial court’s denial of a motion for reconsideration under CR
59 and its decision to consider new or additional evidence presented with the motion for
an abuse of discretion. Martini v. Post, 178 Wn. App. 153, 161, 313 P.3d 473 (2013).
That is, if the trial court exercises its discretion in a manifestly unreasonable manner or
exercises it on untenable grounds or for untenable reasons. Wash. Election Integrity
Coal. United v. Schumacher, 28 Wn. App. 2d 176, 204, 537 P.3d 1058 (2023). We may
generally affirm a trial court’s decision on any basis supported by the record. State v.
Bunner, 86 Wn. App. 158, 161, 936 P.2d 419 (1997); Backlund v. Univ. of Wash., 137
Wn.2d 651, 670, 975 P.2d 950 (1999) (citing LaMon v. Butler, 112 Wn.2d 193, 200-01,
770 P.2d 1027 (1989)).
Merz asserts that the trial court failed to conduct a de novo review of the record
before the commissioner as required under RCW 2.24.050 and merely deferred to the
commissioner’s decision. The record does not support Merz’s assertion. The court’s
revision order stated that the court “reviewed the court file, the hearing, the evidence
admitted at the hearing and the pleadings considered by the commissioner.” The court
further disagreed with the commissioner’s determination that Merz’s motion for
reconsideration was untimely. The court ultimately issued its decision denying revision
of the commissioner’s order based on its own assessment of Merz’s allegations and
evidence that Merz submitted with his motion for reconsideration “to the extent there are
facts relevant to the summary judgment.” Merz does not point to any specific part of the
14 87782-8-I/15
trial court’s order denying revision to support his claim that the court failed to perform a
de novo analysis of the commissioner’s decision denying reconsideration under RCW
2.24.050. See RAP 10.3(a)(6); Port Susan Chapel of the Woods v. Camping Club, 50
Wn. App. 176, 188, 746 P.2d 816 (1987) (“It is not the responsibility of this court to
attempt to discern what it is appellant may have intended to assert that might somehow
have merit.”).
Merz also claims that the trial court improperly refused to consider the
commissioner’s CR 11 sanctions order for revision. But Merz’s motion for
reconsideration makes no mention of the CR 11 sanctions order. “Generally, a superior
court judge’s review of a court commissioner’s ruling, pursuant to a motion for revision,
is limited to the evidence and issues presented to the commissioner.” Moody, 137
Wn.2d at 992-93.
Lastly, Merz fails to establish that the trial court abused its discretion in denying
revision of the commissioner’s decision to deny his motion for reconsideration. Merz
argues that the trial court failed to properly consider evidence that he submitted with his
motion for reconsideration, which he asserts would warrant reconsideration of the
summary judgment dismissal under various provisions of CR 59. However, even without
considering the trial court’s substantive evaluation of evidence that Merz submitted with
his motion for reconsideration, the record supports the court’s order denying revision of
the commissioner’s decision.
Merz submitted several exhibits with his motion for reconsideration. He
requested reconsideration based on such “evidence” that was purportedly unavailable
to the court at the time of respondents’ summary judgment motion. Though there is no
15 87782-8-I/16
prejudice if a trial court considers additional facts on reconsideration in the context of
summary judgment, motions for reconsideration and a court’s taking of additional
evidence remains within the discretion of the court under CR 59. Chen v. State, 86 Wn.
App. 183, 192, 937 P.2d 612 (1997). CR 59(a)(4) authorizes a court to vacate a verdict
or other decision based on “[n]ewly discovered evidence, material for the party making
the application, which the party could not with reasonable diligence have discovered
and produced at the trial.” This rule requires the party requesting reconsideration to
establish that the evidence (1) will probably change the result, (2) was discovered since
the court ruled in the opposing party’s favor, (3) could not have been discovered earlier
with due diligence, (4) is material, and (5) is not merely cumulative or impeaching.
Go2Net, Inc. v. C I Host, Inc., 115 Wn. App. 73, 88, 60 P.3d 1245 (2003).
Here, Merz did not identify what, if any, evidence he was unaware of at the time
of the summary judgment ruling or provide any explanation as to why he could not
discover the evidence earlier. Neither Merz’s motion for reconsideration nor his motion
for revision refers to CR 59(a)(4) or its standard for untimely, “newly discovered”
evidence. Many of the exhibits that Merz submitted consist of respondents’ individual
answers to interrogatories and responses to requests for production served upon Merz
on August 30, 2024, or respondents’ individual affidavits served in April or August 2024.
Merz submitted a sworn declaration with his motion for reconsideration addressing his
failure to submit a motion to compel further discovery and his absence at the summary
judgment hearing in September 2024, but the declaration does not address why he
could not apprise the court of evidence before its summary judgment ruling. Because
Merz did not meet his burden to show why the evidence was not reasonably
16 87782-8-I/17
discoverable until after the summary judgment decision, we conclude that the trial court
did not abuse its discretion in denying Merz’s motion for revision of the commissioner’s
order denying reconsideration under CR 59. We may affirm the trial court’s order
denying revision on any basis supported in the record. See West v. Dep’t of Licensing,
182 Wn. App. 500, 516-18, 331 P.3d 72 (2014) (citing LaMon, 112 Wn.2d at 200-01).
Accordingly, we need not consider Merz’s arguments that rely on evidence he submitted
on reconsideration. 8
CONCLUSION
For the foregoing reasons, 9 we affirm the commissioner’s order granting
summary judgment to respondents and awarding CR 11 sanctions against Merz as well
as the superior court judge’s order denying revision of the commissioner’s order
denying Merz’s motion for reconsideration.
WE CONCUR:
8 We also do not consider Merz’s related assertion that the trial court violated his due process rights in denying his motion for revision, which he does not support with legal authority. “Such ‘[p]assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.’” West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012) (alteration in original) (quoting Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998)). 9 Merz’s failure to establish error dooms his argument under RAP 12.2 based on “cumulative error.” 17