                                                                         FILED 

                                                                      MARCH 18, 2014 

                                                                In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


DISCOVER BANK, ISSUER OF THE                  )
DISCOVER CARD,                                )         No. 31080-9-111
                                              )
                       Appellant,             )
                                              )
       v.                                     )
                                              )         PUBLISHED OPINION
MAURIE L. LEMLEY and DOE I, and their         )
marital community composed thereof,           )
                                              )
                       Respondents.           )

       FEARING, J. -     Discover Bank filed suit against Maurie and Linda Lemley,

husband and wife, for failing to pay a credit card debt. The trial court granted the

Lemleys' summary judgment motion, ruling that Discover Bank failed to present

admissible evidence establishing the Lemleys entered into a contract, let alone owed the

bank the alleged $5,729.28. Discover Bank appeals the summary judgment order. The

principal issue raised by the parties on appeal concerns the qualifications needed by an

affiant on behalf of a major credit card company to identify the controlling contract with

the debtor and establish the amounts owed, in response to a summary judgment motion.

We do not address this issue, but instead remand the case to the trial court for another

summary judgment hearing. At the new hearing, the court should consider the affidavits
No. 31080-9-III
Discover Bank v. Lemley



despite their not being labeled in opposition to the Lemleys' summary judgment motion,

unless they are inadmissible or should be stricken, in whole or in part, on other grounds.

                              FACTSANDPRODECURE

       This outline of facts chronologically follows events during this lawsuit. Some of

the underlying facts will emerge when identifying and outlining affidavits filed in support

of and in opposition to summary judgment motions.

      On December 16,2010, Discover Bank filed suit alleging Maurie and Linda

Lemley failed to pay a debt they accrued on their Discover Card. The Lemleys,

unrepresented by counsel, responded on January 18, 2011. The response read, in part:

      They have double[ d] what I borrowed and now [are] asking for
      12% interest. I do not think this is fair. I realize I asked for this
      credit card. But due to circumstances beyond my control. First the
      plant I worked for for 10 years closed and both myself and my wife
      lost our jobs. Our house was au[c]tioned off by the bank. We [went]
      home one night and the locks were changed. Then I find out that the
      fire I was in, the blood the[y] used to keep me alive, had Hep C in it
      and was now years after causing me Pain and exhaustion to a point I
      can no longer work. I am applying for SSD and have been denied and
      on reconsideration at the moment.

      After letting them know what was going on, they started calling[.] I
      told them again what was happening. [N]ext week they called again
      asking me if I could borrow the money from a relative, was there
      anyway I could get the money. I told them I could not and I was
      applying for SSD. Next week same thing they would call asking why
      I was not making payments could I borrow money to pay them. If
      I did not answer the phone they would call my wife and I 2 to 3 times
      aday each sometimes I would answer and they would hang up.

Clerk's Papers (CP) at 10. Counsel later appeared for the Lemleys.

                                             2

No. 31080-9-111
Discover Bank v. Lemley



       On July 28,2011, Discover Bank moved for summary judgment. In support of its

motion, Discover submitted an affidavit of Patrick Sayers, account manager for DB

Servicing Corporation. In the affidavit, Sayers described his qualifications as follows:

              I am an account manager in the Attorney Placement Department
      for DB Servicing Corporation, the servicing affiliate of DISCOVER
      BANK, ISSUER OF THE DISCOVER CARD, an FDIC insured
      Delaware State Bank collectively ("Discover"). I am responsible for
      managing and overseeing the Discover accounts that have resulted in
      contested litigation. Included within the scope of my responsibilities
      includes the performance of collection and recovery services. I make
      this affidavit on the basis of my personal knowledge and a review of
      the records maintained by Discover with respect to the account at issue.
      All such records are maintained in the regular course of business at or
      near the time of the events recorded. I am a Designated Agent and a
      Custodian of the records.

CP at 15.

       In his affidavit, Patrick Sayers testified:

             On or about October 01, 2006 Defendant opened a Discover
      Credit Card. Attached hereto is true and correct copies of the
      Cardmember Agreement and Application which govern the credit card
      account at issue, along with periodic statements and evidence of
      payments on the account. No payments have been made since
      February 24,2010, and Defendant has defaulted under the terms of the
      Cardmember Agreement by failing to make the payments due as
      required by the agreement.
             At the time that the suit was commenced, the principal balance
      on the account was $5,729.78.

CP at 16. The affidavit was signed in New Albany, Ohio. Contrary to the affidavit,

Sayers did not attach any application.




                                               3

 No. 31 080-9-III
 Discover Bank v. Lemley



        The first page attached to Patrick Sayers' affidavit is a Discover Financial Services

 "TM SALE DETAIL REPORT." CP at 17. Sayers' affidavit does not identify or explain

 the nature or content of the report. The report may attempt to document a call, on

 September 27,2006, from Maurie Lemley, during which he requested a Discover card.

        The next 14 pages attached to Sayers' affidavit is a Discover account cardmember

account agreement. A date printed on the bottom right-hand comer of each page of the

agreement is December 15,2009, i.e., three years after which Discover contends Maurie

Lemley opened an account and two years after which Lemley made his last purchase by a

charge on the card. Curiously, the comer also includes the time of 1:37 p.m., which may

 suggest the date and time is the date of printing the document from a computer, but such

 date precedes the lawsuit by more than one year. Each page also includes a "second"

 designation, with the first page starting at 1:37:03 p.m., the last page ending at 1:37:07

p.m., and intervening pages progressing periodically with the second. The attached 


. agreement is copyrighted in the year 2010, by Discover Bank, Member FDIC. Maurie 


Lemley did not sign the cardmember agreement, nor did any person on behalf of

Discover Bank sign the agreement.

        The first page of the Discover account cardmember account agreement reads, in

part:

        Please read this Agreement carefully before using your Discover®
        Card Account. It contains the terms and conditions of your Account,
        some of which may have changed from earlier materials provided to

                                              4

No. 31080-9-III
Discover Bank v. Lemley



       you. In the event of any differences, this Agreement shall control.

CP at 19.

       Sixty-three pages of credit card account statements, beginning in November 2006

and ending in August 2010, follow the cardmember agreement as attachments to Patrick

Sayers' affidavit. The statements disclose credit tactics employed by Discover Card to

maximize revenue and personal details of Maurie Lemley's life. Of course, the truth of

the information contained on the statements is subject to a determination of whether

Patrick Sayers could properly identify the statements.

      The Lemleys conducted discovery to discover Discover Bank's evidence. In

response to a request to produce all records concerning the Lemleys, the bank disclosed

only the documents it produced for its initial motion for summary judgment. The bank

issued a blanket response to each interrogatory:

      Plaintiff responds to this request for production by providing the
      attached, relevant, non-privileged documents in its possession, custody
      and/or control. Plaintiff reserves the right to amend this response by
      providing additional relevant, non-privileged documents, if any,
      as they come into its possession, custody and/or control, if at all.

CP at 548 (emphasis added).

      The Lemleys deemed Discover Bank's responses deficient and counsel held a

telephonic conference as required by CR 26(i). During the conference, which was

recorded, the Lemleys' counsel asked bank counsel, "You've done a reasonable ... effort

to respond to these [requests for production], correct?" CP at 891. Counsel responded,

                                            5

No.31080-9-III
Discover Bank v. Lemley



"Right, yes." CP at 891. Continuing his line of questioning, the Lemleys' counsel asked,

"At this time are you planning to produce any further documents?" CP at 898. Discover

Bank counsel replied, "No, I'm not planning to produce any further documents." CP at

898. The suit's deadline for discovery was May 21, 2012.

         Based on Discover Bank's representation during the discovery conference, the

Lemleys again moved for summary judgment on May 17,2012, and scheduled the

motion hearing for June 15. They argued that Discover Bank still failed to provide

admissible, competent evidence establishing a contract, much less the terms of a contract.

       On May 24, Discover Bank filed its own second motion for summary judgment.

The deadline for hearing dispositive motions was June 25. Summary judgment motions

are heard in Spokane County Superior Court on Fridays, and the only Friday that

complied with the deadline and afforded sufficient notice to the Lemleys was June 22.

The judge assigned to hear the case was not available on June 22, so Discover Bank filed

a motion to shorten time and to permit its- summary judgment motion to be heard on June

20, at a time when a hearing was already scheduled in the suit for another motion. The

record suggests that the motion for an order shortening time was also scheduled for June

20 and that the motion was never heard, since the trial court granted the Lemleys'

summary judgment on June 15.

       James Ball signed an affidavit in support of Discover Bank's renewed motion.

Ball's affidavit reads, in part:

                                            6

No. 31080-9-III
Discover Bank v. Lemley



             1. I am over the age of 18 years and I am competent to testifY
      regarding the matters in this affidavit. I make this affidavit in the basis
      of my personal knowledge and a review of the files and records maintained
      by Discover with respect to the account at issue.
             2. I am the Team Leader for the Legal Placement Department for
      DB Servicing Corporation, the servicing affiliate of Discover Bank, an
      FDIC Insured Delaware State Bank. I am authorized to make this Affidavit
      on behalf of DB Servicing Corporation, as servicing affiliate of Discover
      Bank, and have reviewed the records with respect to the account at issue.

              4. As a Team Leader for the Legal Placement Department for DB
      Servicing Corporation, I manage employees who approve and maintain
      accounts placed with our attorney network in order to enter judgment on
      behalf of Discover Bank. I am familiar with the manner and methods by
      which Discover Bank and DB Servicing Corporation create and maintain
      their business records, including computer records of accounts such as
      records of activities, charges and payments. All such records were made at
      or near the time of the events recorded and were made and kept in the
      ordinary course of the business of Discover by individuals having
      knowledge of the information reflected therein. I am a custodian of those
      records and have access to the records, and can attest as to the identity and
      authenticity of the records and their mode of preparation.
              5. The account at issue was opened by telephone on October 1,
      2006 at the request of Mr. Lemley. The original terms and conditions of
      the Discover Card Account were sent by mail to Mr. Lemley along with the
      credit card. A true and correct copy ofthe Application and original
      Cardmember Agreement is attached hereto as Exhibits 1 and 2. The
      Cardmember Agreement provided in part that:
                          CHANGES TO THIS AGREEMENT
              We may change any term or part of this Agreement,
              including, but not limited to, any finance charge rate, fee or
              method of computing any balance upon which the finance
              charge rate is assessed, or add any new term or part to this
             Agreement. If required by law, we will send you a notice at
              least 15 days before the change is to become effective .. We
             may apply any such change to the outstanding balance of
             your Account on the effective date of the change and to new
             charges made after that date. You may be offered the
              opportunity to reject some of the changes, and if you do, you

                                            7

No. 31080-9-III
Discover Bank v. Lemley



              must notify us in writing within 15 days after the mailing of
              the notice of the change at the address provided in the notice
              of change, in which case your Account will be closed and you
              must pay us the balance that you owe us under the existing
              terms of the unchanged Agreement. Otherwise, you will have
              agreed to the changes in the notice. Use of your Account
              after the effective date of change will be deemed acceptance
              of the new terms as of such effective date, even if you
              previously notified us that you did not agree to the change.
               We may also change any term of any product, service, or
              benefit offered in connection with your Account. We will
              notify you as required by law or by the terms of the product,
              service, or benefit.
              6. The original Cardmember Agreement was thereafter modified
       from time to time. Exhibit 3 shows the date the modified terms were sent
       to Mr. Lemley. The last modification to the terms was sent to Mr. Lemley
       on August 24, 2009. A copy of the applicable terms which were sent on
       August 24,2009 is attached hereto as Exhibit 4.

CP at 317-19.

       James Ball attached to his affidavit the same "TM SALE DETAIL REPORT"

attached to Patrick Sayers' affidavit. CP at 321. The cardmember agreement attached to

Ball's affidavit, as Exhibit 1, does not have a date in the bottom right-hand corner and

contains a copyright of2006. Thus, the agreement attached to the Ball affidavit differs

from the cardmember agreement attached to the earlier Sayers' affidavit. The 2006

agreement is not signed by any party. The reader cannot tell by reviewing Exhibit 3 ifit

confirms that changes in the cardmember agreement were mailed to Maurie Lemley.

       Joshua Smith signed the other fresh affidavit in support of Discover Bank's

second summary judgment motion. Smith testified, in the affidavit, in part:



                                             8

No. 31080-9-111
Discover Bank v. Lemley



               1.    I am over the age of 18 years and I am competent to testify
      regarding the matters in this affidavit. I make this affidavit in the basis of
      my personal knowledge and a review of the files and records maintained by
      Discover with respect to the account at issue.
              2.     I am an Account Manager for the Legal Placement
      Department for DB Servicing Corporation, the servicing affiliate of
      Discover Bank, an FDIC Insured Delaware State Bank. I am authorized to
      make this Affidavit on behalf of DB Servicing Corporation, as servicing
      affiliate of Discover Bank, and have reviewed the records with respect to
      the account at issue.
              3.     The records produced with this Affidavit are in the possession
      and control of, and were created and/or maintained by DB Servicing
      Corporation. As an Account Manager for the Legal Placement Department
      for DB Servicing Corporation, I am responsible for managing and
      overseeing Discover accounts which have resulted in legal action. I am
      familiar with the manner and methods by which Discover Bank and DB
      Servicing Corporation create and maintain their business records, including
      computer records of accounts such as records of activities, charges and
      payments. All such records were made at or near the time of the events
      recorded and were made and kept in the ordinary course of the business of
      Discover by individuals having knowledge of the information reflected
      therein. I am a custodian of those records and have access to the records,
      and can attest as to the identity and authenticity of the records and their
      mode of preparation.
              4.     Attached hereto as Exhibit A are true and accurate copies of
      statements sent the Lemleys from November 2006 to September 20 I O.
       These statements ... are of the original transaction history and were
      reprinted for this litigation. Attached as Exhibit B are true and correct
      copies of payment stubs and checks from the Lemleys, making payment on
      their Discover account.

CP at 366-67.

      Joshua Smith attached to his affidavit the same account statements attached to

Patrick Sayers' affidavit. Smith attached to his affidavit more checks and payment

coupons than attached to the earlier summary judgment brief.



                                            9

No. 31 080-9-III
Discover Bank v. Lemley



       Neither Joshua Smith's nor James Ball's affidavit stated they were filed in

opposition to the Lemleys' second summary judgment motion. Nevertheless, the caption

to Discover Bank's memorandum opposing the Lemleys' renewed summary judgment

motion included the language, "AND IN SUPPORT OF ITS MOTION FOR

SUMMARY JUDGMENT." CP at 354. The memorandum requested that the trial court

consider the affidavits, of James Ball and Joshua Smith in opposition to the Lemleys'

motion.

       In addition to using the Ball and Smith affidavits, Discover Bank opposed the

Lemleys' summary judgment motion by noting that the Lemleys, in their initial response

to its complaint, stated they "realize[d they] asked for this credit card." CP at 355.

Discover Bank also pointed to the Lemleys' use of the credit card and the cancelled

checks as evidence that they contracted with the bank.

       The Lemleys objected to Discover Bank's motion for a summary judgment

hearing on shortened time, on the twin grounds that the bank should not wait until near

the deadline to file the motion and the bank based its motion on evidence not produced

during discovery. The Lemleys filed a separate objection to the affidavit of James Ball

on the ground that the affidavit attached documents Discover Bank failed to produce in

discovery, including the additional cardmember agreement. In its memorandum in

opposition to and in support of its summary judgment motion, Discover Bank claimed

that the Lemleys never sought in discovery the original cardmember agreement attached

                                             10 

No. 31080-9-III
Discover Bank v. Lemley



to James Ball's affidavit, since the request for production sought signed agreements and

the original agreement was not signed. The Lemleys did not seek to strike the affidavit of

Joshua Smith.

       On June 15, the Spokane County Superior Court heard oral argument on the

Lemleys' motion for summary judgment. At the beginning of the hearing, the Lemleys'

counsel asked if the court intended to consider James Ball's affidavit. The court

answered, "No, this is the defense motion." Report of Proceedings at 7. Later, Discover

Bank's counsel asked the court to consider the Ball affidavit. The trial court affinned its

earlier ruling. Despite the court's ruling, Discover Bank's counsel, during its argument,

referred to documents attached to the new affidavits. The Lemleys objected. The court

sustained the objection. Thus, the court did not consider the affidavits of James Ball and

Joshua Smith.

       In a later order denying Discover Bank's motion for reconsideration, the court

said, "Plaintiffs [pleadings] were clearly designated for its own later scheduled and

noticed hearing. Cross motions should be captioned as such and noted to be heard

together to afford notice to court and parties as to the evidence to be considered." CP at

851.

       At the conclusion of the June 15 summary judgment hearing, the court stated:

       The burden to [Discover Bank] in summary judgment[,] when the 

       motion is being brought by [defendants,] is to establish at least 

       questions of material facts on their prima facie case. 


                                             II 

No. 31080-9-III
Discover Bank v. Lemley



              As the court has reviewed the documents that have been provided
       since the original denial of summary judgment for [Discover], I have been
       looking for documentation in response to this motion to establish a prima
       facie case as to how that debt was identified, what the terms of that debt
       were, how they were defined, what are the material components of that
       contract.

CP at 712. "It does not," the court explained, "provide adequate evidence as a matter of

law to computer generate a copy of what might have been terms at a particular point in

time without a connection between those terms and the party being sued on those terms."

CP at 712. "Response by affidavits or otherwise must set forth specific facts showing

that there is a genuine issue for triaL" CP at 713.

       In its written order, the trial court repeated its reasoning. The order reads that the

affidavit and supporting documents Discover Bank submitted in "opposition to [the

Lemleys'] Motion for Summary Judgment and in support 0/ [Discover's} Motion/or

Summary Judgment do not contain the ... reliable foundation, pursuant to Court Rule

56(e), to establish that the Affiant had personal information about the alleged obligation

in the amount of$5,729.78." CP at 718 (emphasis added). The bank's failure to provide

competent evidence establishing an essential element of its case-damages-entitled the

Lemleys to summary judgment.

       In a motion to reconsider, Discover Bank contended the court erred when it

refused to consider the affidavits and exhibits filed in support of its own motion for

summary judgment. In their response to the motion, the Lemleys argued that the court



                                             12 

No. 31080-9-III
Discover Bank v. Lemley



correctly excluded the filings because they were untimely under the court's scheduling

order. In an order denying the motion to reconsider, the court stated it considered the

bank's memorandum jointly offered in opposition to the Lemleys' motion and in support

of the bank's motion. The court, however, refused to consider the attachments to the

memorandum because of a lack of authentification. "Any other summary judgment

pleadings," the court explained, "were clearly designated for [Discover's] own later

scheduled ... noticed hearing." CP at 851. If Discover intended that motion as a cross

motion, it "should be captioned as such and noted to be heard together to afford notice to

court and parties as to the evidence to be considered." CP at 851.

        Based on CR 54(d)(2), RCW 4.84.250, .270, and .330, the court awarded the

Lemleys attorney fees and costs.

                                   LA W AND ANALYSIS

       Discover Bank contends the trial court made three errors when granting the

Lemleys summary judgment. First, the trial court erroneously ignored affidavits

submitted in support ofDiscover's motion for summary judgment. Second, even without

those additional pleadings, the affidavits submitted in opposition to the Lemleys' motion

were sufficient to establish an issue of material fact. Third, even if all affidavits were

properly excluded, the Lemleys' own admissions and conduct raised a genuine issue of

material fact of whether a debt is owed. We only address the first argument because we

rule the court should not have ignored the affidavits of Joshua Smith and James Ball on

                                              13 

No.31080-9-III
Discover Bank v. Lemley



the basis that they were not labeled in their respective captions as being submitted in

opposition to the Lemleys' motion.

       No decision directly addresses the facts and issues raised. We rely on a Ninth

Circuit Court of Appeals decision and two Washington decisions that indirectly address

our question, in addition to Washington's liberal policy of applying its civil rules.

       In Fair Housing Council o/Riverside County, Inc. v. Riverside Two, 249 F.3d

1132, 1134-35 (9th Cir. 2001), the federal court prescribed the scope of pleadings a

district court must review to determine whether summary judgment is appropriate, under

the circumstances when opposing parties file cross motions for summary judgment. The

plaintiffs, unlike the defendant, did not file evidence in opposition to the defendant's

motion for summary judgment. Instead, they "relied on the evidence that they had

submitted in support of their motion for summary judgment." Id. The trial court granted

the defendant's motion for summary judgment because, in part, plaintiffs had not

submitted any admissible evidence in opposition to the defendant's motion for summary

judgment. Id. The Ninth Circuit reversed, holding "that the district court was required to

review the evidence properly submitted in support of [plaintiffs'] motion to determine

whether it presented a disputed issue of material fact precluding summary judgment in

favor of [d]efendants." Id. The trial court must consider each party's evidentiary

showing, regardless of under which motion the evidence was tendered. Id. Numerous

United States District Courts within the Ninth Circuit Court of Appeals have followed the

                                             14 

No. 31080-9-III
Discover Bank v. Lemley



holding of Fair Housing. See Oakley, Inc. v. Nike, Inc., 2013 WL 6726782 at 3 (C.D.

Cal. 2013); Conceptus, Inc. v. Hologic, Inc., 771 F. Supp. 2d 1164, 1174 (N.D. Cal.

2010); Zhangv. Napolitano, 663 F. Supp. 2d 913,918 (C.D. Cal. 2009); Wilson v. Costco

Wholesale Corp., 426 F. Supp. 2d 1115, 1118 (S.D. Cal. 2006).

       Our case on appeal has distinguishing circumstances from Fair Housing v.

Riverside Two. Discover Bank, who filed its motion last, did not label its motion as a

cross motion as may have been done by the plaintiffs in Fair Housing. Cross motions for

summary judgment are typically scheduled to be heard at the same hearing. Discover

Bank scheduled its hearing for a date later than the hearing for the Lem1eys' motion. We

discount the importance of these distinctions. Discover Bank's motion was pending at

the time the trial court reviewed the Lemleys' motion. Although Discover Bank did not

label the affidavits of Joshua Smith and James Ball as opposing the Lem1eys' summary

judgment motion, Discover Bank captioned its summary judgment brief as supporting its

motion and opposing the Lemleys' motion. The brief declared that the Smith and Ball

affidavits should be reviewed when addressing the Lemleys' summary judgment motion.

       In Mithoug v. Apollo Radio ofSpokane, 128 Wn.2d 460,909 P.2d 291 (1996),

Joyce Mithoug and a co-worker sued their employer for discrimination and retaliatory

discharge. The trial court granted the employer summary judgment. Its order stated that

it did not consider depositions on file. The order did not declare the reason for ignoring

the depositions, but the reason may have been that the depositions were not attached to a

                                            15 

No.31080-9-III
Discover Bank v. Lemley



brief or affidavit. When reviewing the summary judgment dismissal, we granted the

employer's motion to strike the deposition testimony, since the trial court had not

considered the depositions. The Supreme Court reversed us. The trial court had entered

an order publishing the depositions. Joyce Mithoug referred to the depositions by page

and line numbers in her memorandum. Thus, the trial court failed to consider the

depositions in opposition to the employer's summary judgment motion. CR 56(c) directs

the court to consider "pleadings, depositions, answers to interrogatories, and admissions

onfile, together with the affidavits, if any." (Emphasis added.) The depositions were in

the court file and CR 56 does not require they be attached to any pleading. A liberal

reading of Mithoug requires the trial court to consider any admissible evidence found in

its file when deciding a summary judgment motion.

       In Peterson v. Pacific First Federal Savings & Loan Ass 'n, 23 Wn. App. 688, 598

P.2d 407 (1979), our court reversed the trial court's denial of a summary judgment

motion brought by the defendant. The trial court ignored the defendant's admissions to

the plaintiffs factual allegation in his complaint and a disbursement order in the

guardianship proceeding. The trial court should have considered those pleadings on file      r
                                                                                             f
and granted summary judgment to the defendant. A liberal reading of Peterson also
                                                                                            i
demands that the trial court consider any admissible evidence found in its file when
                                                                                            !
                                                                                            I
                                                                                            f
deciding a summary judgment motion.

       When applying the civil rules, we should employ practical, rather than technical

                                            16
                                                                                            I
                                                                                            f.
                                                                                            ~


                                                                                            I
No. 31080-9-II1
Discover Bank v. Lemley



solutions to questions. Kohl v. Zemiller, 12 Wn. App. 370, 372, 529 P.2d 861 (1974).

We should avoid procedural traps for the litigants. Gatt v. Woody, 11 Wn. App. 504,

508,524 P.2d 452 (1974). We hold that under these circumstances, when a party

opposing a summary judgment motion also has a pending summary judgment motion and

the opposing party references affidavits supporting its summary judgment motion in its

brief opposing the other party's summary judgment motion, the court should consider

those affidavits when reviewing the first summary judgment motion.

       By our ruling, we do not preclude the trial court from striking the affidavits of

James Ball and Joshua Smith on other grounds. The Lemleys objected to one or more of

the affidavits because they were untimely and because the information and witnesses

were not previously disclosed in discovery. The trial court did not address these

objections because it ignored the affidavits on another ground. On remand, the trial court

should address these objections of the Lemleys, if and when the Lemleys renew their

motion for summary judgment. Our ruling also does not address whether Joshua Smith

or James Ball qualifies to testify to the facts stated in their respective affidavits or

whether either qualifies to identify the documents attached to their respective affidavits.

If the trial court denies the Lemleys' motion to strike because of untimeliness or

discovery violations, the trial court will need to otherwise determine the admissibility of

the two affidavits.




                                               17 

No. 31080-9-III
Discover Bank v. Lemley



                                     CONCLUSION

       We remand the case to the trial court for further proceedings. If the Lemleys

renew their summary judgment motion, the trial court should consider affidavits

submitted by Discover Bank in support of its summary judgment motion, unless the trial

court rules that the affidavits should not be considered because of the failure to comply

with discovery, because of their untimeliness, or because of evidence rules.

       We also vacate the judgment in favor of the Lemleys and their counsel for attorney

fees and costs. The trial court should readdress an award of fees and costs, including fees

and costs on appeal, upon completion of the case.




WE CONCUR:


~,        ,
Korsmo, C.J.                                            Kulik, J.P. T




                                            18 

