Sawyer Lake Veterinary Hospital, Et Ano., Apps v. Pine Tree Veterinary Hospital, Et Ano., Resps

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SAWYER LAKE VETERINARY No. 76809-3-1
HOSPITAL, INC., P.S., a Washington
corporation, and DR. JAN WHITE, DIVISION ONE

Appellants,

V.
UNPUBLISHED OPINION
PINE TREE VETERINARY HOSPITAL,
a Washington limited liability company,
and BRIDGET FERGUSON,

Respondents. FILED: May 20, 2019

SCHINDLER, J. — Dr. Jan White and Sawyer Lake Veterinary Hospital Inc. PS

(collectively, Dr. White)filed a lawsuit against Dr. Bridget Ferguson and Pine Tree

Veterinary Hospital. Dr. White appeals denial of her motion to vacate the summary

judgment order dismissing the lawsuit under CR 60(b)(9) and CR 60(b)(11). Because

the court did not abuse its discretion in denying the motion to vacate, we affirm.

FACTS

Dr. Jan White owns Sawyer Lake Veterinary Hospital Inc. PS in Kent. Dr. Bridget

Ferguson specializes in the care of exotic animals and birds. Dr. Ferguson has "an

established client base, composed mostly of bird and other exotic pet clients," and is

"one of the few avian-certified veterinarians in Washington."
No. 76809-3-1/2

In 2013, Dr. Ferguson was interested in purchasing an existing practice. Dr.

Ferguson and Dr. White "engaged in some preliminary negotiations. . . regarding the

sale of[Dr. White's] practice." "[In exchange for the promise of future ownership,"

Ferguson agreed to work at Sawyer Lake. On April 16, 2013, Dr. Ferguson signed an

"Employment Agreement." Neither the Employment Agreement nor the Sawyer Lake

policies and procedures contain any restrictions on competition or opening up her "own

clinic." But the Employment Agreement states patients and records are the property of

Sawyer Lake and the Sawyer Lake policies and procedures contain a client

confidentiality and nondisclosure provision.

By January 2015, "it became apparent" to Dr. Ferguson that Dr. White was no

longer interested in selling her veterinary practice. On January 7, Dr. Ferguson told Dr.

White she planned to resign and "open my own clinic" but offered to stay through

February. At the request of Dr. White, Dr. Ferguson signed the following agreement:

I, Bridget Ferguson, plan to open Pine Tree Veterinary Hospital in the late
spring of 2015. I hereby agree to not accept direct transfers of veterinary
clients from Sawyer Lake Veterinary Hospital for 24 months following the
opening of said hospital. After that, this agreement is ended. This
agreement does not extend to my friends, family, and clients that I brought
to Sawyer Lake Veterinary Hospital. A partial list will be sent forward.

Less than two weeks later, Dr. White terminated Dr. Ferguson.

In May 2015, Dr. Ferguson opened Pine Tree Veterinary Hospital in Maple

Valley.

On October 2, 2015, Advocates Law Group PLLC and Douglas Davies filed a

complaint for damages and injunctive relief on behalf of Dr. White and Sawyer Lake

Veterinary Hospital (collectively, Dr. White) against Dr. Ferguson and Pine Tree

Veterinary Hospital (collectively, Dr. Ferguson). Dr. White alleged Dr. Ferguson

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No. 76809-3-1/3

improperly obtained and used confidential and proprietary client information to solicit

Sawyer Lake clients. The lawsuit alleged claims for violation of the Uniform Trade

Secrets Act, chapter 19.108 RCW; breach of contract; misappropriation of confidential

and proprietary information; and tortious interference with business expectancy.

On October 10, plaintiffs' counsel served Dr. Ferguson with the complaint and

"Plaintiffs' First Set of Interrogatories and Requests for Production of Documents." The

First Set of Interrogatories and Requests for Production request "a complete list of each

and every person who received veterinary goods or services" from Dr. Ferguson.

On October 22, Dr. Ferguson filed an answer. Dr. Ferguson denied the

allegations and asserted a number of affirmative defenses. On November 6, defense

counsel served Dr. White with "Defendants' First Interrogatories and Requests for

Production." The parties agreed to a short extension of the time to file responses to the

interrogatories and requests for production.

On November 20, Dr. Ferguson responded to Plaintiffs' First Set of

Interrogatories. After the parties and the attorneys entered into a stipulated protective

order on January 5, 2016, Dr. Ferguson produced a number of documents.

Following a discovery conference on January 7, Davies agreed to provide

preliminary unsigned answers to Defendants' First Interrogatories and Requests for

Production by January 12.

On January 22, Dr. Ferguson produced a confidential list that identified 650 Pine

Tree clients, the initial date of service, and whether Dr. Ferguson previously provided

service for the client at Sawyer Lake.

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No. 76809-3-1/4

On February 3, Davies told Dr. Ferguson's attorney that he "was dealing with

some health issues" and "would provide discovery responses sometime that day," but

did not do so. On February 5, Dr. Ferguson filed a "Motion To Compel Discovery

Response" and attorney fees and costs. Davies requested the court schedule a status

conference on the defense motion to compel and "a significant and unforeseen matter

that has arisen."' The court scheduled a status conference for February 26.

On February 19, Davies served responses to Defendants' First Set of

Interrogatories and Requests for Production signed and verified by Dr. White. In

response to the interrogatory to identify "specific clients Plaintiffs alleged were lost,

including the name of the clients" and the "facts regarding" the "specific 'substantial

harm, lost profits[,] and continuing loss of profits,'" Dr. White states that absent a "full

and complete" response from Dr. Ferguson, she cannot provide an answer to the

interrogatory.

[T]he information sought in this interrogatory is within the possession of
defendants in that only defendants know which Sawyer Lake clients they
have improperly solicited and serviced. Defendants have produced a
partial and incomplete list of Sawyer Lake clients that are now or have been
clients of defendants. . . . The loss, damage and harm suffered by Sawyer
Lake is on-going and includes, among other things, the loss in business
from clients illegally solicited and serviced by defendants, funds and income
improperly diverted or converted by defendants, and other harm
precipitated by defendants and by others on defendants' behalf. Such loss,
damage and harm has not been quantified and cannot be quantified until
defendants produce full and complete responses to plaintiffs' discovery
requests identifying each and every Sawyer Lake client improperly solicited
and serviced by defendants and all services, including lab services which
were illegally diverted or converted by defendant Ferguson or others on her
behalf. Upon receipt of such information, expert reports will be prepared
and produced precisely quantifying the loss, damage, and harm suffered by
plaintiffs due to defendants' improper and illegal acts.

1 Emphasis omitted.

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No. 76809-3-1/5

On February 23, Davies filed a declaration in support of a 45-day stay and in

opposition to the defense request for an award of attorney fees for the motion to

compel. Davies states he had recently been diagnosed with "a rare, genetic blood

cancer" and "had been undergoing infusion therapy and taking medications that have

had significant side effects and are difficult for me to tolerate." Davies states:

My deteriorating health has made it exceedingly difficult to coordinate with
my clients and respond in a timely manner to defendants' discovery
requests in this case. The medications and infusions I have been taking
have caused me to experience severe side effects, some of which have
caused me to miss phone calls and conferences in this case.

Davies said he discussed his condition with Dr. White:

I have discussed my condition with all of my clients, including the plaintiffs
in this action. None have asked me to withdraw, but all have expressed
concern over my prognosis and sought assurances that I had coverage for
their files.
. . . The treatment regimen I am on ends March 8, 2016. At that
point my physicians are confident they will be able to determine the
effectiveness of my treatment and my long term prognosis, including my
ability to resume working.

Before the February 26 status conference, Davies filed "Plaintiffs' Opposition" to

the motion to compel and award attorney fees. The Opposition asserts the defendants

have not been prejudiced because plaintiffs served answers to Defendants' First Set of

Interrogatories and Requests for Production on February 19. Dr. White also notes the

defendants "have yet to fully provide" complete answers to discovery requests.

Although plaintiffs served discovery requests on [defendants] on October
2, 2015, defendants have yet to fully provide the single document which is
at the center of this litigation; Pine Tree's client list. Despite numerous
requests to fully identify their clients, including providing contact
information, defendants have failed to do so. Moreover, they have even
failed to provide a complete list of clients.

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No. 76809-3-1/6

Dr. White argues "circumstances exist" that "make an award of fees here unjust":

Although plaintiffs' counsel admittedly made numerous
representations that discovery responses were forthcoming and failed to
follow through on those commitments, at the time, he was struggling with
symptoms of a significant and life threatening illness, undergoing repeated
and intrusive tests and examinations at various hospitals and medical
facilities in Puget Sound, while suffering significant and adverse reactions
to high doses of potent and debilitating medications and infusions.

At the status conference on February 26, Davies told the court he was diagnosed

with a rare blood cancer and "should not be practicing law in any capacity right now."

[T]hat's one reason why I contacted [defense counsel] about — and
requested the status conference about staying the case about 45 days to
allow someone else to get into this and — because it's very fact-intensive
case, it's a very contentious case, as Your Honor probably recognizes.
And my biggest concern is that my own personal issues don't impact my
client.

Davies said that "more information should be available regarding his health

situation and his ability to have ongoing involvement with this case" by the end of

March. Davies told the court he "had extensive discussions" with Dr. White about his

medical condition and "the kind of errors I was making and the situation that I've, you

know, gotten myself into, through no fault of hers whatsoever." Davies told the court Dr.

White said she "doesn't want. . . me to withdraw, I've represented her for years."

The court granted a stay and scheduled a status conference for April 1. The

court entered an "Order on Motion To Compel, To Stay, and on CR 16 Conference."

The court granted the motion to compel plaintiffs to "provide complete responses to the

discovery propounded by the defendants." The court found Dr. White had provided

inadequate responses and "interposed improper objections" to the defense discovery

requests. The order states, "This stay does not, and should not, delay Mr. Davies'

efforts to identify co-counsel or substitute counsel or the expectation that, as soon as

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No. 76809-3-1/7

such counsel is identified, plaintiffs will work to supplement discovery." The court

stayed the case until after the discovery conference scheduled for April 1. However, in

the meantime, the court ordered the parties to identify discovery deficiencies.

In lieu of further[CR]26(i) conferences, defendants' counsel shall, by no
later than March 7,2016, send a letter to plaintiff's counsel detailing
discovery deficiencies and what further supplementation they believe is
required. To the extent that plaintiff's counsel or his co-counsel/substitute
counsel is able, plaintiffs may also send a discovery deficiency letter and
shall make every effort to do so by March 27, 2016 if they wish to address
their outstanding discovery at the April 1st conference.

The court reserved ruling on the request for attorney fees.

Defense counsel sent a letter to Dr. White identifying deficiencies in the

discovery responses and production of documents. On March 31, Davies sent a

discovery "deficiency letter" to defense counsel. Before the status conference on April

1, Dr. White produced additional documents.

At the April 1 status conference, Davies confirmed he "intended to stay on the

case" and not either substitute counsel or obtain co-counsel. On May 11, the court

entered an "Order on Court-Mandated Discovery Conference and Supplementing Order

Granting Defendants' Motion To Compel." The court ordered Dr. White to produce by

May 20 tax and additional financial information and the client list Dr. Ferguson

previously provided to Dr. White.

Plaintiffs are ordered to produce a complete copy of any client lists in
Plaintiffs' possession provided to Plaintiffs by Defendant Ferguson during
the course of Defendant Ferguson's employment at Sawyer Lake,
including any list provided at or around the time of hire and prior to
commencing work.

The court granted the defense additional time to review the "high volume of additional

materials" and to "submit a supplemental deficiency letter."

7
No. 76809-3-1/8

Dr. White complied with the court's order. On June 9, Davies served "Plaintiffs'

Second Interrogatories and Requests for Production of Documents" on Dr. Ferguson.

On June 10, defense counsel served Dr. White with "Defendants' Second

Interrogatories and Requests for Production."

On June 23, Dr. Ferguson filed a motion for a protective order for the disclosure

of client banking account information. Dr. White filed an opposition to the motion for a

protective order. The court granted in part and denied in part the request for a

protective order. The court ordered, "Plaintiffs' counsel (not plaintiffs) shall pay $500 to

[defense counsel]for attorneys' fees/sanctions related to the late response submission."

On July 19, Davies served Dr. Ferguson with responses to Defendants' Second

Interrogatories and Requests for Production signed and verified by Dr. White. On

August 17, defense counsel served "Defendants' Third Interrogatories and Requests for

Production to Plaintiffs."

On October 6, Dr. Ferguson filed a motion for summary judgment dismissal of

the lawsuit. Dr. Ferguson argued there was no consideration to support the

Employment Agreement she signed. Dr. Ferguson argued Dr. White could not establish

damages because no evidence supported finding she solicited Sawyer Lake clients. Dr.

Ferguson submitted a declaration and declarations from a number of her clients. Dr.

Ferguson noted the hearing for November 4. The response was due October 24.

The court held a pretrial conference on October 14. The court confirmed the

November 28 trial date. Davies estimated the bench trial would last five days and

approximately 350 exhibits. Davies stated Dr. White planned to file a motion to compel.

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No. 76809-3-1/9

The court entered a pretrial order. The court ordered the parties to engage in mediation

by November 2.

On October 19, Dr. White filed a 15-page motion to compel discovery and noted

the hearing on October 28. The motion to compel asserts Dr. Ferguson "failed to fully

identify their clients and have deprived Plaintiffs of an opportunity to identify, contact,

interview or depose crucial fact witnesses."2 Davies filed a lengthy declaration in

support of the motion to compel. That same day, Dr. Ferguson filed a motion to compel

answers to Defendants' Third Interrogatories and Requests for Production and an

award of attorney fees.

Dr. White did not file a response to the summary judgment motion on October 24.

Dr. Ferguson filed a motion to shorten time to hear the summary judgment motion

before the November 4 hearing date. On October 27, Davies filed a declaration in

opposition to the motion to shorten time. Davies states, "Plaintiffs are filing a CR 56(f)

Motion for Continuance of Defendants' Motion for Summary Judgment which motion will

be timely filed today pursuant to" King County Local Civil Rule 7. Davies asserts the CR

56(f) motion to continue "will be based, in part, on Plaintiffs' Motion to Compel which

motion is currently pending before the Court."

On October 27, Davies also filed a declaration in opposition to the motion to

compel. Davies asserts he sent the responses to Dr. White on October 25 and served

Dr. Ferguson's attorneys with the responses on October 27.

On October 31, the court entered an "Order on Plaintiffs' Motion To Compel," an

"Order Granting Defendants' Second Motion To Compel," and an "Order on Defendants'

Motion To Shorten Time."

2 Emphasis in original.

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No. 76809-3-1/10

The Order on Plaintiffs' Motion To Compel states, in pertinent part:

[D]efendants failed to supply clients' contact information as required by the
definition of "identify"; however, they have provided information that
allowed plaintiffs to determine overlaps in the client lists and to verify
whether the address in Sawyer Lake's records is the same as the address
in Pine Tree's records.

The court ordered Dr. Ferguson to supplement responses:

• Defendants shall provide updated versions of the client lists
they have previously filed to include any new clients from the
date of last production to the discovery cut-off, i.e., October 10,
2016.
• For any clients who have been identified as overlap clients, for
whom plaintiffs do not have current contact information,
defendants shall provide the missing contact information within
two business days of receiving a request.

. . . Ferguson shall provide a complete list of any credit applications
she made for purposes of financing Pine Tree Veterinary Hospital and
shall provide the name and contact information for the institution.

The Order Granting Defendants' Second Motion To Compel states, "Plaintiffs

shall respond to Defendants' Third Interrogatories and Requests for Production and

produce responsive documents by November 8, 2016." The court denied the defense

motion to shorten time to hear summary judgment.

On November 2, 2016, the parties and their attorneys participated in a mediation.

During the mediation, Dr. White and Davies discussed filing the CR 56(f) motion to

continue the summary judgment hearing. Davies told Dr. White and Sawyer Lake office

manager Sheri Shores he would file the CR 56(f) motion before the summary judgment

hearing. The parties did not reach an agreement at mediation.

At 7:00 a.m. on November 4, Davies sent an e-mail to the court stating he was

unable to attend the summary judgment hearing at 10:00 a.m. because "an onset of

severe symptoms" limited his "ability to drive." The court responded to the e-mail at

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No. 76809-3-1/11

9:00 a.m., stating, "[A]ppearance by telephone is required" at 10:00 a.m. Davies did not

respond or attend the summary judgment hearing. The court entered an order granting

the motion for summary judgment dismissal of the lawsuit against Dr. Ferguson.

The order states the court did not receive "a response from plaintiff or a CR 56(f)

motion as was previously represented would be filed." The order states,"Summary

judgment as to liability is granted for the reasons set out in defendants' brief in support

of motion" and "[n]o genuine issue of material fact exists as to damages for any claim.

No damages have been shown."

The court awarded sanctions "in the form of two hours of attorney time plus Dr.

Ferguson's missed work cost[s]." The court notes that the "[p]reviously reserved motion

for fees/sanctions related to the February 2016 motion to compel that was decided

3/4/16 will be addressed by separate order."

Davies contacted Dr. White the afternoon of November 4 to tell her the court

dismissed the lawsuit on summary judgment. Davies said he missed the hearing and

according to Dr. White, Davies "for the first time" disclosed the full extent of the

debilitating issues he was dealing with.

On November 7, the court entered an order awarding attorney fees for the

February 2016 motion to compel. The order states that "plaintiffs had failed to respond

to discovery and that the limited responses they had supplied were inadequate." The

court awarded $7,094.50 in attorney fees.

On November 10, 2016, Patterson, Buchannan, Fobes, and Leitch Inc. PS and

Sarah Schulte filed a notice of appearance in the case on behalf of Dr. White.

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No. 76809-3-1/12

More than three months later on February 14, 2017, Patterson, Buchannan,

Fobes, and Leitch filed a motion to vacate the summary judgment and sanctions orders

under CR 60(b)(9) and CR 60(b)(11). Dr. White argued Davies' "failure to respond to

motions, prosecute this action, and appear at the summary judgment hearing (1) were

the result of unavoidable casualty and misfortune under CR 60(b)(9); and (2) would lead

to an unjust result warranting vacation under CR 60(b)(11)."

Dr. White submitted a declaration in support of the motion to vacate and the

declaration of the managing partner of Advocates Law Group. Dr. White also filed the

sealed declarations of Davies and board-certified psychiatric nurse practitioner

Theresse Douglass PhD.

The declaration of the Advocates Law Group managing partner states Davies is

a member of the firm. After entry of the summary judgment order, the judge contacted

the managing partner to inform him that the judge "concluded that Mr. Davies is either

truly unhealthy, or possibly suffering from substance abuse" and that the judge "has

filed a bar complaint" against Davies.

The declaration of Dr. White in support of the motion to vacate states the Sawyer

Lake client list is "confidential and proprietary information." Dr. White asserts that after

she learned Dr. Ferguson planned "to leave to open her own practice," as "specific" and

agreed upon consideration for signing the "non-compete agreement," she agreed not to

contest unemployment benefits. Dr. White notes the October 2015 interrogatories and

requests for production sought critical information.

[T]he interrogatories asked for a complete list of each and every person
who received veterinary goods or services from Defendants, together with
complete contact information. It is only with this essential and highly
relevant information that Plaintiffs could determine which of its clients had

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No. 76809-3-1/13

received goods and services from Defendants and thereby quantify its
damages. Notwithstanding that this request was made the day this case
was filed, through the production of four iterations of purported "client lists"
and two motions to compel, more than one year later, in October 2016,
Defendants had still not produced a complete list of its clients with
complete contact information. As of October 2016, Defendants had
produced only a partial list of [sic] consisting of 646 clients. And as stated
multiple times to the Court, Plaintiffs were able to determine that
approximately 177 of those clients were former Sawyer Lake clients in
violation of the employment agreement, handbook, and non-compete
agreement. Most egregiously, it was only AFTER THE DISCOVERY
CUT-OFF DATE that Defendants produced an updated client list that
consisted of 1,177 clients but without complete contact information.
Based on this limited information, Plaintiffs were able to identify
approximately 590 former Sawyer Lake clients on this list.

Dr. White admits that "[a]t times I have been concerned about[Davies]filing of

responses or briefs late" and that she knew Davies did not file an opposition to

summary judgment. Dr. White asserts Davies planned to file a CR 56(f) motion to

continue.

I was exceedingly concerned he failed to file an opposition to the motion
for summary judgment filed by the Defendants. He explained though that
he was unable to meaningfully respond because of Defendants'
stonewalling failure to provide us with a complete client list and financial
documents. He explained he was going to file a motion for a continuance
under CR 56(f).

However, Dr. White states Davies "was not wholly forthcoming with me and I

never fully understood the number of times he was late, the extent of sanctions levied

by the Court, or other information indicating that I needed to aggressively intervene."

Dr. White states that the afternoon of November 4, after the case had been dismissed,

Davies "for the first time, fully informed me of the issues described in his declaration and

the declaration of Dr. Douglass."

Dr. White attached a number of exhibits to her declaration, including the

Employment Agreement and Sawyer Lake policies and procedures, a declaration of

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No. 76809-3-1/14

Sawyer Lake office manager Sheri Shores dated November 3, 2016, and a declaration

of Dr. White dated November 3, 2016. These declarations state that Dr. Ferguson

agreed to sign the noncompete agreement if Dr. White would not contest a claim for

unemployment benefits and that Dr. White did not contest the unemployment benefits,

resulting in an increase in the unemployment tax rate.

The lengthy sealed declaration of Davies describes serious legal, physical, and

mental circumstances. The December 12, 2016 declaration of Dr. Douglass states she

began treating Davies in August 2016 and recent events worsened a psychiatric

condition.

In opposition, Dr. Ferguson argued the motion to vacate was untimely and Dr.

White could not show either casualty or misfortune prevented her from prosecuting her

case under CR 60(b)(9) or extraordinary circumstances under CR 60(b)(11).

In reply, Dr. White argued she could not have brought the motion earlier

because:

1) Mr. Davies needed to obtain approval from law enforcement personnel
to disclose, even in a sealed declaration, the ongoing criminal matters;
and 2) Dr. Douglass required testing to rule out issues that had been
raised regarding Mr. Davies' behavior and conditions. . . . These steps
took time, and once complete, there was a sufficient basis to bring the
motion to vacate.

The trial court recused and the motion to vacate was assigned to a different

judge. The court made findings under Seattle Times Co. v. lshikawa, 97 Wn.2d 30, 37-

39, 640 P.2d 716 (1982), and ordered the declaration of Davies and Dr. Douglass

sealed.3

3 Because the declarations contain highly private and sensitive matters, we do not
cite the
information contained in the sealed declarations.

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No. 76809-3-1/15

At the March 3, 2017 hearing on the motion to vacate, Dr. White's attorney

argued, "[O]ne of the key issues in the case" is whether there was "an unavoidable

casualty or misfortune." The court found Davies faced "very, very significant hardship

and challenges." But "while profound and profoundly moving in the context of what Mr.

Davies has experienced," the court ruled the inquiry before the court is whether the

"unavoidable casualty or misfortune" prevented Dr. White from prosecuting or defending

the case.

[O]ne of the key facts in this case is not what happened up to the point of
summary judgment. Those are key facts, those are important facts, but I
got to be very blunt with you. One of the core facts that we have in this
case is that counsel, new counsel, entered this case within the time frame
in which a motion to reconsider could have been brought and such a
motion was not brought.

Dr. White's counsel asserted,"The reason for the delay is so that Mr. Davies

could interact with agents of the federal government, to work through drafts . . . to avoid

violating some nondisclosure things that he had with the Feds," and to avoid potential

harm "to him and/or his family." The attorney also noted Davies "had been accused of

perhaps maybe some substance abuse by the prior judge that was assigned to this

case." The attorney said Dr. Douglas also "had her own concerns about how she was

going to testify, if at all," and wanted Davies to engage in "drug testing procedures that

took some time to complete." However, the attorney agreed that "ideally, a motion for

reconsideration would have been filed almost immediately, it simply was not an option."

The trial court disagreed and denied the motion to vacate. The court ruled

Davies' casualty or misfortune did not prevent Dr. White from prosecuting her case

under CR 60(b)(9). "[T]here was nothing that prevented" Dr. White from prosecuting her

case and filing a timely motion for reconsideration "in that time frame."

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No. 76809-3-1/16

The court found the record did not support "a significant breakdown" in the

attorney-client relationship or abandonment under CR 60(b)(11).

[T]he fact that Mr. Davies did not communicate to that client the specifics
of what was happening, the specifics of the disability under which he was
suffering.
That is, again, completely understandable why he didn't
communicate that, but, again, that does not fall into the — his failure to
communicate to his client that he could no longer effectively represent her,
that may in fact fall under the — under the — under the label of
negligence as it is — as is discussed in Barr,[4] Stanley,[5]and Olsen.[61 It
may. It may not.
But the reality is, that relationship, based upon what I've reviewed, I
cannot find that there was such a sufficient — a significant breakdown in
the relationship in the context of not communicating the specifics, but in
communicating performance, as was attributed in Barr. I cannot make
that factual determination based on this record, and I decline to do that.

Dr. White filed a motion for reconsideration, arguing the court abused its

discretion in denying the motion to vacate. Dr. White argued the record established

under CR 60(b)(9)"an unavoidable casualty and misfortune that directly resulted in the

adverse summary judgment ruling" and filing a motion to reconsider that decision would

have been "meaningless." Dr. White argued the record established extraordinary

circumstances under CR 60(b)(11). Dr. White asserted Barr v. MacGugan, 119 Wn.

App. 43, 78 P.3d 660 (2003), was "directly on point" and dispositive.

Dr. White filed a declaration in support of the motion to reconsider. Dr. White

states:

I was wholly unaware of any late filings or submissions by Mr. Davies until
I was served personally with Defendants' Order to Show Cause dated
June 20, 2016. In reading the Order it appeared that Mr. Davies
responded to discovery requests on May 30 rather than when they were
due on May 11. And some documents still needed to be produced. I
immediately discussed the matter with Ms. Shores and Mr. Davies, Mr.

4 Barr v. MacGuoan, 119 Wn. App. 43, 78 P.3d 660(2003).
5 Stanley v. Cole, 157 Wn. App. 873, 239 P.3d 611 (2010).
6 In re Marriage of Olsen, 183 Wn. App. 546, 333 P.3d 561 (2014).

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No. 76809-3-1/17

Davies explained that the delay in production was due to a confusion in
calendaring when his assistant went on vacation. As to the financial and
tax records that had not been produced, Mr. Davies explained that it was
his understanding the records had been delivered. . . .
. . . From the date we filed the lawsuit in October 2015 until
November 1, 2016, I was never advised nor did I have any reason
whatsoever to believe that any deadlines were being missed or that Mr.
Davies or I were being sanctioned. Insofar as I knew, our lawsuit was
proceeding regularly according to the Court schedule and, although we
were being stonewalled by the Defendants as far as getting a complete
copy of their client list which was essential to support our claims and
determine our damages, I understood and believed that Mr. Davies was
handling my lawsuit competently.

Dr. White states that during the mediation on November 2, Davies said he would

file a CR 56(f) motion for a continuance of the summary judgment. "He further stated

that since the court would likely continue the hearing based on the motion, it would be a

waste of time for us to attend." Dr. White reiterates she only learned about the "severity

of the issues Mr. Davies was dealing with" on November 4.

In opposition, Dr. Ferguson argued the court properly relied on and applied CR

60(b)(9) and CR 60(b)(11). Dr. Ferguson argued Barr was not dispositive and

described the significant factual differences.

The trial court denied the motion for reconsideration. The court concluded the

motion for reconsideration does not "accurately" reflect the "legal analysis" of the court

in denying the motion to vacate:

[I]n their MOTION FOR RECONSIDERATION, the plaintiffs have not
accurately reflected the factual and legal analysis of the Court in denying
their motion.
The controlling authority in this matter is Stanley v. Cole, 157
Wash.[ ]App. 873, 239 P.3d 611 (Div[.] 1, 2010). Additionally, the Court
relied on the persuasive analysis in In Re Marriage of Olsen, 183 Wash.[]
App.[ ]546, 333[ ]P.3d 561 (2014).
Barr v. MacGuoan . . . can be distinguished from the facts of the
present case for the reasons set forth on Pages 6-7 of Defendant's
OPPOSITION to Plaintiff's MOTION FOR RECONSIDERATION.

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No. 76809-3-1/18

The Court incorporates by reference the rationale stated in the
Court's Oral ruling on March 3, 2017.[7]

Dr. White appeals the order denying the motion to vacate and the motion to

reconsider.

7 Pages six through seven of Defendant's Opposition to Plaintiff's Motion for Reconsideration
contain the following chart of "Barr vs. our case":
Upon learning of the dismissal, Barr Mr. Davies is still representing Plaintiffs,
promptly hired new counsel to represent her is drafting detailed briefing and
in connection with her motion to vacate, declarations in this case, and is
Barr v. MacGugan, 119 Wn.[ ]App. [at] 43. representing another entity owned by
Jan White in an unrelated case.
Neither the court nor Barr had any details Mr. Davies filed a detailed declaration in
about the attorney's health condition. Id. February 2016 indicating that he was
diagnosed with a "rare, genetic blood
cancer". Mr. Davies stated that he
discussed his condition with the plaintiffs
in this case and that plaintiffs did not ask
him to withdraw. Docket No. 15. Even
if he did not discuss specific details,
Plaintiff was on notice approximately a
year prior to the SJ [(summary
judgment)1 hearing].
Barr did not know that her attorney missed Jan White knew: (a) that her attorney
any deadlines. Id. was filing responses and briefs late; (b)
did not file a response to the SJ;(c) did
not file the CR 56(f) motion. She
"expressed significant concern" as a
result. See White Decl. 1(Declaration)1
in
Support of Motion to Vacate, pg.[(page)]
4, In. [(lines)] 7-8.
Barr did not even know that a motion to Jan White knew about the summary
compel or dismissed [sic] had been filed. judgment motion, having reviewed it with
Id. her attorney, expressing "a significant
desire to know what the filing meant".
She and her attorney "discussed the
merit, process of opposing, and the
meaning of the motion." Jan White was
informed about how and when to
respond to the motion. Davies Decl. in
Support of Motion to Vacate, pg. 14,
para.[(paragraph)] 36.
Barr had not communicated with her Two days before the SJ hearing, Jan
attorney for 1.5 years by the time her case White attended mediation with her
was dismissed. Id. attorney and "reminded [him] multiple
times" to file a CR 56(f) motion. Davies
Decl. in Support of Motion to Vacate, pg.
14, para. 36.

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No. 76809-3-1/19

Barr did not know the location, date or time Jan White knew the date, time and
of the hearings in her case. Barr, 119 Wn. location of the SJ hearing and after
[]App. [at] 43. asking Davies if she should attend, was
told that "there was no requirement for a
client to attend oral argument." Davies
Decl. in Support of Motion to Vacate, pg.
14-15. [Note: She was not expressly
told that she should not attend.]
Barr learned almost 1.5 years later that her Jan White knew on the day of
case was dismissed after hearing about the dismissal—November 4, 2016—that her
dismissal from her landlord (who also case was dismissed. White Decl. in
happened to be an attorney). Barr, 119 support of Motion to Vacate, pg. 4, In.
Wn.[ ]App. [at] 43. 21-22.
Barr's new counsel filed a Motion to Vacate Jan White—via new counsel, but while
two months after learning about the simultaneously being represented by Mr.
dismissal [the record in Barr is unclear as to Davies—filed a Motion to Vacate more
when Barr hired new counsel]. Barr, 119 than 3 months after learning of the
Wn.[ ]App.[at] 43. dismissal and despite her new counsel
filing a [notice of appearance] only 6
days after the dismissal.
"The irregularities that affected the The irregularities in this case were within
proceedings . . . were entirely outside the the control of Jan White. She had
control of the plaintiff, the defendant, and multiple and ongoing indicators of Mr.
the court." Barr, 119 Wn.[ ]App. at 48. Davies' conduct and chose to proceed
knowing the risk involved, and has
apparently chosen to continue bearing
the risk in a new case.
"The agency relationship [had] disintegrated The agency relationship here had not
to the point where as a practical matter come close to disintegrating given that
there [was] no representation." Barr, 119 counsel and Jan White had been actively
Wn.[ ]App. at 48. communicating with one another, a
mediator, the court and opposing
counsel just days prior to the hearing
and on the day of the hearing (before
and after the fact) and that Mr. Davies is
still White's attorney in this case and
another unrelated case.
Barr was a "diligent but unknowing client". After review of the evidence presented,
Barr, 119 Wn.[ ]App. at 48. this court found that "the affidavits that
were filed by the plaintiff in this case
suggest that there was communication
and an awareness of issues" and that
"there was not . .. such a sufficient,
significant breakdown in the relationship
in the context of not communicating the
specifics." Maze Decl., Ex[hibit] C.
(Emphasis in original)(some alterations in original).

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No. 76809-3-1/20

ANALYSIS

Dr. White contends the trial court abused its discretion in denying her motion to

vacate the summary judgment order of dismissal under CR 60(b)(9) and CR 60(b)(11).

CR 60(b)"does not authorize vacation of judgments except for reasons

extraneous to the action of the court or for matters affecting the regularity of the

proceedings." Burlingame v. Consol. Mines & Smelting Co., 106 Wn.2d 328, 336, 722

P.2d 67(1986). CR 60(b) provides, in pertinent part:

Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
Fraud; etc. On motion and upon such terms as are just, the court may
relieve a party or the party's legal representative from a final judgment,
order, or proceeding for the following reasons:

(9) Unavoidable casualty or misfortune preventing the party from
prosecuting or defending;

(11) Any other reason justifying relief from the operation of the
judgment.
The motion shall be made within a reasonable time . . . . A motion
under this section (b) does not affect the finality of the judgment or
suspend its operation.

We review the trial court's denial of a CR 60(b) motion to vacate for manifest

abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). A

trial court abuses its discretion if the decision is manifestly unreasonable or based on

untenable grounds. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684,132 P.3d 115

(2006). "An abuse of discretion exists only when no reasonable person would take the

position adopted by the trial court." Little v. King, 160 Wn.2d 696, 710, 161 P.3d 345

(2007)(citing Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265 (2000)). We review a

trial court's factual findings for substantial evidence. Sunnyside Valley Irrig. Dist. v.

Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). Substantial evidence is the quantum

20
No. 76809-3-1/21

of evidence sufficient to persuade a rational fair-minded person the premise is true.

Sunnyside, 149 Wn.2d at 879. Unchallenged findings are verities on appeal. Cowiche

Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992).

CR 60(b)(9)

Dr. White contends the court abused its discretion by finding the "[u]navoidable

casualty or misfortune" did not prevent her from prosecuting the case by timely filing a

motion for reconsideration under CR 59.

CR 60(b)(9) requires the moving party to establish casualty or misfortune

prevented the party from pursuing the case. In Stanley, we concluded CR 60(b)(9)

requires "events beyond a party's control—such as a serious illness, accident, natural

disaster, or similar event" prevent the party "from taking actions to pursue or defend the

case." Stanley, 157 Wn. App. at 882. However,"an unavoidable casualty or misfortune

alone is insufficient to allow relief under the rule." Stanley, 157 Wn. App. at 882. The

moving party must show casualty or misfortune "actually prevented" the party from

pursuing the case. Stanley, 157 Wn. App. at 883.

The trial court's finding that casualty or misfortune did not actually prevent Dr.

White from pursuing her case by timely filing a motion to reconsider under CR 59 is not

manifestly unreasonable.

Under CR 59(a), the court may vacate a summary judgment order and grant

reconsideration for any one of the following pertinent reasons "materially affecting the

substantial rights of such parties":

(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;

21
No. 76809-3-1/22

(3) Accident or surprise which ordinary prudence could not have
guarded against;
(4) Newly discovered evidence, material for the party making the
application, which the party could not with reasonable diligence have
discovered and produced at the trial;

(9) That substantial justice has not been done.

CR 59(b) states a motion for reconsideration "shall be filed not later than 10 days

after the entry of" the summary judgment order of dismissal. CR 59(b) states:

Time for Motion; Contents of Motion. A motion for a new trial or for
reconsideration shall be filed not later than 10 days after the entry of the
judgment, order, or other decision. The motion shall be noted at the time
it is filed, to be heard or otherwise considered within 30 days after the
entry of the judgment, order, or other decision, unless the court directs
otherwise.
A motion for a new trial or for reconsideration shall identify the
specific reasons in fact and law as to each ground on which the motion is
based.

The CR 59(b) requirement to file a motion for reconsideration "not later than 10

days after the entry of the judgment, order, or other decision" is mandatory. Metz v.

Sarandos, 91 Wn. App. 357, 360, 957 P.2d 795 (1998). The trial court "'may not

extend the time for taking any action under. . .[CR] 59(b).'" Metz, 91 Wn. App. at 360

n.18 (quoting CR 6(b)(2)); see also Schaefco v. Columbia River Gorge Comm'n, 121

Wn.2d 366, 367-68, 849 P.2d 1225 (1993).

If the motion for reconsideration is based on facts outside the record, affidavits or

declarations identifying specific facts shall be filed in support of the motion for

reconsideration. CR 59(c). CR 59(c) states the affidavits or declarations "shall be filed

with the motion" and "[t]he opposing party has 10 days after service to file opposing

affidavits, but that period may be extended for up to 20 days, either by the court for

8 Emphasis omitted.

22
No. 76809-3-1/23

good cause or by the parties' written stipulation." The court may also permit reply

affidavits. CR 59(c).

Under CR 59(e)(3), the court has the discretion to determine whether the motion

"shall be heard on oral argument or submitted on briefs, and if on briefs, shall fix the

time within which the briefs shall be served and filed."

CR 6(b) allows the court to enlarge the time to comply with a time limit under the

court rules except for "taking any action" under CR 59(b). CR 6(b) states:

Enlargement. When by these rules or by a notice given thereunder or by
order of court an act is required or allowed to be done at or within a
specified time, the court for cause shown may at any time in its discretion,
(1) with or without motion or notice, order the period enlarged if request
therefor is made before the expiration of the period originally prescribed or
as extended by a previous order, or (2) upon motion made after the
expiration of the specified period, permit the act to be done where the
failure to act was the result of excusable neglect; but it may not extend the
time for taking any action under rules 50(b), 52(b), 59(b), 59(d), and 60(b).

The record supports the court finding the casualty or misfortune of Davies did not

prevent Dr. White from filing a timely CR 59 motion for reconsideration. Unlike in Olsen,

filing a motion for reconsideration was not "meaningless." In Olsen, the moving party

conceded the evidence presented "was sufficient to uphold the trial court's findings and

that the court's findings supported its conclusions." Olsen, 183 Wn. App. at 553.

Here, Dr. White knew Dr. Ferguson had filed a motion for summary judgment and

the motion was scheduled to be heard on November 4. Dr. White reviewed the motion

with Davies and discussed the merits and opposing the motion. Dr. White knew Davies

planned to file a CR 56(f) motion to continue the summary judgment hearing. The

record shows that after the defense filed the motion for summary judgment, Davies

engaged in efforts to obtain additional information from Dr. Ferguson. The parties

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No. 76809-3-1/24

attended a mediation on November 2. During the mediation, Davies assured Dr. White

and Shores that he planned to file the motion to continue before the November 4

hearing. The record shows Dr. White and Shores signed affidavits on November 3

contesting the assertion of Dr. Ferguson that she signed the agreement not to compete

without consideration.

Davies did not attend the summary judgment hearing on November 4, 2016 and

the court entered the order dismissing the lawsuit on summary judgment. Davies

contacted Dr. White the afternoon of November 4. The record establishes that on

November 4, Dr. White knew Davies did not file a CR 56(f) motion to continue the

summary judgment hearing, "he had missed the hearing," and the court dismissed her

lawsuit. Dr. White states that for "the first time" on November 4, 2016, Davies "fully

informed me" of the "full extent of the issues":

It was not until our phone call on the afternoon of November 4, 2016,
when he advised me that he had failed to appear at the hearing and the
Defendants' summary judgment was granted that! had any idea
whatsoever of the extent and severity of the issues Mr. Davies was
dealing with.

On November 10, 2016, new counsel filed a notice of appearance on behalf of Dr.

White.

The record establishes a number of grounds to file a timely motion for

reconsideration, including irregularity in the proceeding, accident or surprise, substantial

justice had not been done, and newly discovered evidence. CR 59(a)(1), (3), (9), (4).9

The affidavits from Dr. White and Shores submitted in support of a motion for

9 CR 59 does not prohibit a party from submitting new or additional evidence on reconsideration.
The trial court has the discretion to decide whether to consider the additional evidence. Martini v. Post,
178 Wn. App. 153, 162, 313 P.3d 473(2013).

24
No. 76809-3-1/25

reconsideration would have presented compelling reasons to consider granting the

motion. The affidavit of Dr. White would also establish good cause to grant an

extension of time to file the affidavit of Davies and continue the hearing on the motion to

reconsider.

We conclude the court did not abuse its discretion in denying the motion to

vacate under CR 60(b)(9).

CR 60(b)(11)

In the alternative, Dr. White contends the trial court abused its discretion by

denying the motion to vacate the summary judgment and sanctions orders under CR

60(b)(11). CR 60(b)(11) allows the court to vacate an order for "[a]ny other reason

justifying relief from the operation of the judgment." CR 60(b)(11) is confined to

extraordinary circumstances not covered by any other section of the rule. Barr, 119 Wn.

App. at 46.

As a general rule, "an attorney's negligence or neglect does not constitute

grounds for vacating a judgment under CR 60(b) because, under the law of agency, if

an attorney is authorized to appear on behalf of a client, that attorney's acts are binding

on the client." Barr, 119 Wn. App. at 46 (citing Haller v. Wallis, 89 Wn.2d 539, 547, 573

P.2d 1302 (1978)); see also Stanley, 157 Wn. App. at 886. In Barr, we recognized a

limited exception to this general rule.

In Barr, the trial court dismissed the case with prejudice after the plaintiff's

attorney failed to comply with the court's order compelling responses to discovery

requests. Barr, 119 Wn. App. at 45. The plaintiff left several phone messages with her

attorney to check on the status of her case, but the attorney never responded. Barr,

25
No. 76809-3-1/26

119 Wn. App. at 45. The plaintiff learned from a third party that her case had been

dismissed and also learned that her attorney had been suffering from severe clinical

depression. Barr, 119 Wn. App. at 45. The plaintiff hired new counsel and filed a

motion to vacate the dismissal order under CR 60(b)(11). Barr, 119 Wn. App. at 45.

The trial court granted the plaintiff's motion, and this court affirmed. Barr, 119 Wn. App.

at 45, 49.

While acknowledging the general rule that an attorney's negligent conduct is

binding on the client, we concluded that this general rule did not necessarily apply

where the plaintiff's attorney experienced severe depression and the attorney-client

relationship had "disintegrated to the point where as a practical matter there is no

representation." Barr, 119 Wn. App. at 48; see also Olsen, 183 Wn. App. at 557 (citing

Cmty. Dental Servs. v. Tani, 282 F.3d 1164 (9th Cir. 2002); Maples v. Thomas, 565

U.S. 266, 282, 132 S. Ct. 912, 181 L. Ed. 2d 807(2012)(abandonment only if there is

near-total failure to communicate with client or respond to inquiries)). We specifically

limited the exception to the general rule that an attorney's negligent conduct is binding

on his client to "situations where an attorney's condition effectively deprives a diligent

but unknowing client of representation." Barr, 119 Wn. App. at 48.

[The plaintiff] diligently provided information to her attorney and made
appropriate follow-up inquiries, but through no fault of her own was
unaware of her attorney's disability. The irregularities that affected the
proceedings below were entirely outside the control of the plaintiff, the
defendant, and the court.

Barr, 119 Wn. App. at 48.

Here, unlike in Barr, the court concluded the record does not support finding the

attorney-client relationship between Davies and Dr. White had disintegrated to the point

26
No. 76809-3-1/27

where there was no representation. The record supports the trial court's conclusion.

The record also supports finding that Dr. White was not an unknowing client. The

record shows Davies had represented Dr. White "for years." Dr. White knew by

February 2016 that Davies was facing serious health issues and that he had missed

deadlines but did not want him to withdraw. Between February 25, 2016 and October

27, 2016, Dr. White reviewed and signed verifications for answers to interrogatories and

requests for production. In June 2016, Dr. White knew that Davies was "filing . . .

responses or briefs late." Dr. White knew Dr. Ferguson filed a motion for summary

judgment in October and the hearing was noted for November 4. Dr. White and Davies

discussed filing a CR 56(f) motion to continue the summary judgment hearing and she

knew Davies planned to file motions to compel additional discovery on damages. At the

mediation on November 2, Davies told Dr. White he had not filed an opposition to the

summary judgment motion. But Davies assured Dr. White and Shores during the

November 2 mediation that he planned to file the motion before the hearing on

November 4. Davies called Dr. White the afternoon of November 4 to tell her the court

had dismissed the case and for the first time explain the full extent of his circumstances.

Davies arranged to obtain new counsel and new counsel filed a notice of appearance

on November 10. The record also shows that on March 23, 2017, Davies represented

Dr. White and filed a notice of acceptance of service on her behalf in another case. We

conclude the trial court did not abuse its discretion in denying Dr. White's motion to

vacate under CR 60(b)(11).

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No. 76809-3-1/28

We affirm denial of the motion to vacate the order granting summary judgment

dismissal under CR 60(b)(9) and CR 60(b)(11).

WE CONCUR:

9.

28