State Of Washington v. Henry W. & Catherine A. Dailey

• Court: Court of Appeals of Washington
• Decided: January 11, 2016
• Docket: 72423-1
• Status: Unpublished

Opinion

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WILLIAM DAILEY, individually and his UNPUBLISHED OPINION marital community; CATHERINE A. DAILEY, individually and her marital community; JANET SPARKS, individually and her marital community; JOHN DOE SPARKS,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 No. 72423-1-1/3

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 No. 72423-1-1/4

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). -8- 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.

^Z3

WE CONCUR:

*f£Jb*4^_ Cvj% * J

10 RCW 19.86.090; Svendsen v. Stock, 143 Wn.2d 546, 560, 23 P.3d 455 (2001). -9-