Keck v. Collins

Korsmo, J.

¶52 (concurring) — Although the majority correctly reverses and remands this case because plaintiff’s counsel was entitled to more time to prepare his response to the summary judgment motions, I do not concur in the extension of the language from Folsom v. Burger King, 135 Wn.2d 658, 663 , 958 P.2d 301 (1998), into appellate court de novo oversight of the trial court’s calendar management authority. That subject has traditionally been left to the discretion of the trial court, 11 and we should not overturn those types of decisions absent abuse of that discretion. The Folsom language only applies to a trial court’s summary judgment evidentiary rulings rather than to related mat *95 ters such as continuances and the consideration of untimely filings.

¶53 In addition to being an imprudent policy choice, the elevation of the Folsom language fails for several additional reasons. First, as applied to this context, the language is dicta. At issue in Folsom was the standard of review of a trial court decision to strike portions of an expert’s affidavits due to varied deficiencies. Id. at 662-63. The court concluded, unsurprisingly, that the appropriate standard was de novo review of the reasons for striking the excised portions of the affidavits. Id. at 663. Not only were the trial judge’s rulings based on legal grounds, but to leave such rulings to the discretion of the trial court would not ensure that the summary judgment was based on the evidence most favorable to the defending party. Id. The trial judge, after all, does not find facts or resolve disputes concerning material facts at summary judgment. Those matters are left for the trial process. The record must be reviewed most favorably to the responding party, and that can only be done if all of the admissible evidence can be considered. As that presents a nondiscretionary legal question, the appellate court necessarily applies de novo review.

¶54 Unfortunately, Folsom stated its resolution of the argument about striking the evidence universally, indicating that de novo review extended to “all trial court rulings made in conjunction with a summary judgment motion.” Id. The Folsom court, of course, was not reviewing all potential rulings made in conjunction with a summary judgment motion. It was dealing with a ruling striking evidence. There was no discretionary aspect to that ruling — the trial judge was either right on the law or he was not. Either way, it presented a legal question rather than a discretionary ruling. Folsom did not speak to, and should not be read to address, additional types of rulings arising from a summary judgment motion.

¶55 A second problem with reading Folsom as the majority does is that it necessarily overrules, sub silentio, a *96 large number of cases without applying the standards for doing so articulated in In re Rights to Waters of Stranger Creek, 77 Wn.2d 649 , 466 P.2d 508 (1970). 12 E.g., King County Fire Prot. Dist. No. 16 v. Hous. Auth., 123 Wn.2d 819, 826 , 872 P.2d 516 (1994); McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706 , 782 P.2d 1045 (1989); Bernal v. Am. Honda Motor Co., 87 Wn.2d 406, 413 , 553 P.2d 107 (1976). 13 Both before and after Folsom, the court has continued to treat a trial court’s decision on scheduling summary judgment hearings as a matter left to the trial court’s discretion. 14 See, e.g., Pitzer v. Union Bank of Cal., 141 Wn.2d 539, 556 , 9 P.3d 805 (2000); Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 90 , 838 P.2d 111 (1992). The fact that the Supreme Court forgot this statement just two years later when it decided Pitzer suggests that it did not intend Folsom to have such a sweeping impact.

¶56 The two cases cited by the majority as following Folsom do not support that reading. In Davies v. Holy Family Hospital, 144 Wn. App. 483 , 183 P.3d 283 (2008), this court faced issues concerning an expert’s qualifications and whether his declarations of negligence were sufficient to defeat summary judgment. Id. at 494 . This court cited the Folsom language and conducted an appropriate legal analysis of the issues. Id. at 494-96. However, the court then turned to plaintiff’s argument that the court had erred in denying reconsideration because he was unrepresented, needed more time to file an affidavit from his expert, and deserved the opportunity to file an untimely response. This court ultimately concluded that the trial court had not abused its discretion in these rulings. Id. at 498-501. Davies *97 strongly suggests that the Folsom rule is limited solely to summary judgment evidentiary rulings rather than issues of timeliness, scheduling, and reconsideration.

¶57 The other case relied on by the majority is Southwick v. Seattle Police Officer John Doe No. 1, 145 Wn. App. 292 , 186 P.3d 1089 (2008). Southwick also does not aid the majority’s reading of Folsom. There the court, in its standard of review section, cited Folsom for the proposition that an otherwise discretionary motion to strike is reviewed de novo when “made in conjunction with a motion for summary judgment.” Id. at 297. However, in its analysis of the trial court’s ruling striking an untimely declaration in opposition to summary judgment, the Southwick court applied the abuse of discretion standard rather than the Folsom de novo legal standard. 15 Id. at 301-02.

¶58 Since these cases do not support the broad reading of Folsom, the majority is left with nothing but the language of that opinion itself. As noted previously, the statement arose in the context of reviewing the legal grounds for the trial court’s ruling striking some of the proffered evidence and the court justified its decision on the basis of the need to ensure that all admissible evidence was considered. That rationale has little relation to a court’s scheduling authority or local motion practice deadlines.

¶59 The Washington Supreme Court recently provided some guidance on what to consider when fashioning an appropriate standard of review:

An abuse of discretion standard often is appropriate when (1) the trial court is generally in a better position than the *98 appellate court to make a given determination; (2) a determination is fact intensive and involves numerous factors to be weighed on a case-by-case basis; (3) the trial court has more experience making a given type of determination and a greater understanding of the issues involved; (4) the determination is one for which no rule of general applicability could be effectively constructed; and/or (5) there is a strong interest in finality and avoiding appeals.

State v. Sisouvanh, 175 Wn.2d 607, 621 , 290 P.3d 942 (2012) (citations and quotations omitted).

¶60 These factors support reading the Folsom language narrowly. Enforceability of local rules and decisions on whether to grant continuances should be left to the discretion of the trial judge who has the most experience with those matters as well as with the counsel involved. An appellate court is seldom in the position where it can legitimately tell a trial court that it erred in enforcing its own local rules. We should review any such challenges for abuse of discretion.

¶61 The Folsom language will have to be explained and applied by the Washington Supreme Court at some point. However, this court does not have the authority to overturn a Supreme Court and neither should we unnecessarily interpret a case in a manner that puts it in conflict with other cases. The majority’s reading of Folsom puts that case at odds with even more decisions than Folsom itself implicitly did. Since I don’t think the Folsom language should be applied outside of summary judgment evidentiary rulings, I respectfully concur only in the result of the majority opinion.

Petitions for review granted at 181 Wn.2d 1007 (2014).

E.g., State ex rel. Sperry v. Superior Court, 41 Wn.2d 670, 671 , 251 P.2d 164 (1952).

Stare decisis “requires a clear showing that an established rule is incorrect and harmful before it is abandoned.” Stranger Creek, 77 Wn.2d at 653 .

The noted cases do conflict with the Folsom statement in that all of them reviewed summary judgment motions to strike under the abuse of discretion standard.

Similarly, the decision to continue a civil or a criminal trial is left to the discretion of the trial court. State v. Downing, 151 Wn.2d 265, 272 , 87 P.3d 1169 (2004).

Before and after Folsom, this court consistently has applied the abuse of discretion standard to trial court timeliness rulings in summary judgment proceedings. E.g., Colo. Structures, Inc. v. Blue Mountain Plaza, LLC, 159 Wn. App. 654, 660 , 246 P.3d 835 (2011); Davies, 144 Wn. App. at 500 ; Garza v. McCain Foods, Inc., 124 Wn. App. 908, 917 , 103 P.3d 848 (2004); O’Neill v. Farmers Ins. Co. of Wash., 124 Wn. App. 516, 521-22 , 125 P.3d 134 (2004); Idahosa v. King County, 113 Wn. App. 930, 936-37 , 55 P.3d 657 (2002); Sec. State Bank v. Burk, 100 Wn. App. 94, 102-03 , 995 P.2d 1272 (2000); McBride v. Walla Walla County, 95 Wn. App. 33, 37 , 975 P.2d 1029 (1999);Broum v. Peoples Mortg. Co., 48 Wn. App. 554, 559-60 , 739 P.2d 1188 (1987).