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         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


LORI S. HASKELL,                                NO. 67907-4-1


                      Appellant,                DIVISION ONE


         v.

                                                UNPUBLISHED OPINION
BYERS & ANDERSON, INC., and
LAUREL TERRY, Certified Court
Reporter,

                      Respondents.              FILED: March 25, 2013


         Leach, C.J. — Lori Haskell appeals the trial court's summary dismissal of

her claims against a court reporting agency, Byers & Anderson (B&A). Haskell

alleges that B&A refused to provide a copy of a deposition transcript to her on the

same terms it provided a copy to opposing counsel.          In her complaint, she

asserted claims for violations of the state statute and regulations governing court

reporters, various intentional torts, breach of a fiduciary duty, and violations of

the Consumer Protection Act, ch. 19.86 RCW. Because the record demonstrates

that genuine issues of material fact exist about the terms of B&A's policy and its

application, we reverse the grant of summary judgment and remand to the trial

court.
NO. 67907-4-1 / 2




                                     FACTS


      Appellant Lori Haskell represented the plaintiff in an underinsured motorist

claim against Farmers Insurance Company. Farmers scheduled the deposition

of the plaintiff and contracted with B&A to report the deposition. Laurel Terry, an

independent court reporter affiliated with B&A, provided the reporting service. At

the end of the deposition, Farmers' attorney requested that the deposition be

transcribed and ordered a copy of the transcript.       Haskell also requested a

transcript copy. Terry asked Haskell to complete a transcript order/credit card

authorization form. When Haskell asked why she had to sign anything when the

Farmers' attorney did not, Terry explained that B&A required sole practitioners

and some small firms to complete a preauthorization form. Haskell refused to

sign any "contract" because of her status as a sole practitioner. Terry notified

B&A's billing manager that she had not received the completed form and asked

her to follow up with Haskell.

       B&A e-mailed Farmers the transcript on May 5, 2011.1 On May 5, B&A
sent Haskell a letter informing her that it had served the transcript on Farmers

and that she and her client had 30 days to come to B&A's offices to review the

transcript. B&A's billing manager, Meagan Barron, also called Haskell's office


       1 Farmers' attorney worked for a law firm with more than ten years'
positive payment history with B&A. In accordance with its stated policy, B&A
provided him with the transcript, along with an invoice payable in 30 days.
                                        -2-
NO. 67907-4-1 / 3




and left a message trying to get payment authorization to release a transcript

copy to Haskell. Haskell, who was out of the office for several days, did not

receive the messages until May 10. She called B&A to ask why they had not

sent her the transcript. Barron informed her that she needed to "promise to pay"

for the copy. Haskell refused to give such verbal assurance.2 She also mailed a
demand letter to B&A's Seattle satellite office, threatening further legal action if

B&A did not release the transcript.3         On May 17, after several additional

unsuccessful attempts to speak with Haskell in person, the manager of B&A's

Seattle and Tacoma offices, Jennifer Anderson, waived the company's "promise

to pay" policy and e-mailed Haskell a copy of the transcript.4 That afternoon,
Haskell filed this lawsuit against B&A.5
       B&A moved for summary judgment dismissing Haskell's claims. The trial

court granted the motion, deciding that B&A's policy did not violate an


      2 The record indicates that this conversation ended with Haskell yelling
and hanging up on Barron.
        3 B&A operates primarily out of its Tacoma office. Thus, it did not see this
letter until May 17, when someone picked up the mail from the Seattle office.
        4 In her appellate briefing, Haskell repeatedly complains that Barron did
not have an invoice prepared and that she did not know what the cost of the
transcript would be. However, the record contains no indication that Haskell ever
explained that she based her refusal to provide even a verbal promise to pay
upon not knowing the amount charged.
      5 Haskell also moved for a temporary restraining order to force B&A to
provide the transcript. The court commissioner denied the motion, noting that
Haskell's injury was self-inflicted by her refusal to pay for the transcript and that
B&A could follow whatever payment policies it chose.
                                           -3-
NO. 67907-4-1 / 4




administrative regulation requiring court reporters to provide their services on

"equal terms" to all parties. Haskell appeals.

                             STANDARD OF REVIEW


       We review summary judgment orders de novo.6 A trial court may grant
summary judgment only when no genuine issues of material fact exist and the

moving party is entitled to judgment as a matter of law.7 When reviewing a
summary judgment order, we engage in the same inquiry as the trial court,

considering the facts and all reasonable inferences from the facts in the light

most favorable to the nonmoving party.8 We may affirm a trial court's grant of

summary judgment on any basis supported by the record.9
                                     ANALYSIS


       Haskell complains that B&A did not provide its services to the parties on

"equal terms" as required by state regulations applicable to court reporters. She

alleges that B&A refused to invoice her for a copy ofthe deposition transcript and

that it provided the transcript to Farmers' attorney without contemporaneously

notifying her that the transcript was available.



       6 Hadlev v. Maxwell, 144 Wn.2d 306, 310-11, 27 P.3d 600 (2001).
       7 CR 56(c).
       8 Right-Price Recreation. LLC v. Connells Prairie Cmtv. Council, 146
Wn.2d 370, 381, 46 P.3d 789 (2002).
       9 Steinbock v. Ferry County Pub. Util. Dist. No. 1, 165 Wn. App. 479, 485,
269 P.3d 275 (2011).
                                          -4-
NO. 67907-4-1 / 5




       WAC       308-14-130    requires   "[a]ll   certified   court   reporters    (CCR)

shall. . . [o]ffer arrangements on a case concerning court reporting services or

fees to all parties on equal terms." (Emphasis added.)            Haskell contends that

B&A's practice of requiring some attorneys to prepay for transcript copies while

providing direct billing for others violates this standard.

       B&A claims that its payment policy is a legitimate business practice that it

applies equally to all attorneys to better assure timely payment.                  Jennifer

Anderson has been an owner and principal of B&A since it was established in

1980. According to Anderson, while the firm once provided transcripts to any

party who requested them via COD payment or billing invoice, B&A chose to

adopt a new policy to assure its court reporters actually got paid for their

services. When it made this change, attorneys who had an ongoing relationship

with B&A or an established positive payment history would remain on the

company's direct billing list. Attorneys who had not worked with B&A in the past

or did not have an established positive payment history would be required to

provide some guarantee of payment before receiving the transcript.

       Haskell presented evidence that B&A applies its credit policy in a

discriminatory fashion, requiring different payment arrangements with sole

practitioners.    In her declaration, Haskell stated that Terry told her Haskell

needed to sign the requested form because she was a sole practitioner. Terry

                                          -5-
NO. 67907-4-1 / 6




admits, "I did make reference to the fact that Haskell was a sole practitioner."

One can infer from the descriptions of their conversation provided by Haskell and

Terry that Terry had no knowledge of Haskell's prior history with B&A and made

no inquiry of Haskell about any prior history with B&A before determining that she

was a sole practitioner and requesting credit card information. For purposes of

opposing summary judgment, Haskell is entitled to these inferences. These facts

and inferences create a sufficient factual dispute about the terms of B&A's credit

policy and its application to require a trial.

        Haskell requests attorney fees for this appeal. However, her request for

prevailing party attorney fees is premature.          The identity of the ultimately

prevailing party cannot be determined at this time.

                                    CONCLUSION


       Because Haskell raised genuine issues of material fact about the terms of

B&A's policies for provision of court reporting services and their application to

sole practitioners, we reverse and remand.



                                                        Lt^c^^ O
WE CONCUR:




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