                                                                          FILED 

                                                                        NOV 10,2015 

                                                                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 


MARISA WUNDERLICH and                        )
JOSEPH WUNDERLICH,                           )         No. 32655-1-III
a married couple,                            )
                                             )
                     Respondents,            )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
JOHN P. ROUSE and KARMA ROUSE,               )
a married couple, THORPE-ABBOTT              )
PROPERTIES LLC, and DOES 1-10,               )
                                             )
                     Appellants.             )

       KORSMO, J.     Attorney Eric Nayes appeals the sanction imposed on him for his

actions during the discovery phase of the underlying case. We conclude that the motions

judge did not abuse her discretion and affirm the sanction order.

                                         FACTS

       Mr. Nayes represented Thorpe-Abbott Properties, LLC and its owners, John and

Karma Rouse. Mr. Marshall Casey represented Marisa and Joseph Wunderlich. The

Wunderlichs sued the Rouses and their company in the Spokane County Superior Court

claiming that the plaintiffs had adversely possessed some of the land belonging to the

defendants. John Rouse and Marisa Wunderlich are second cousins.
No. 32655-1-111
Wunderlich v. Rouse


       After the discovery disputes at issue here were resolved by the Honorable

Maryann Moreno the case ultimately proceeded to bench trial before the Honorable

Michael Price. Judge Price ruled for the defendants and entered judgment in their behalf,

including an award of attorney fees for the successful defense. That ruling was not

appealed to this court. Nonetheless, some discussion of the facts of the underlying case is

necessary to put the discovery sanction ruling in context.

       The suit involved ownership of land that has been in the family since 1967. The

land was originally purchased by Romyne Rouse, John Rouse's grandfather, and at some

later point was placed into trust. The Rouses acquired the land in 2001 by quitclaim

deed, granted by the trustees, which included Ellen Heinemann-Romyne Rouse's sister

and Marisa Wunderlich's grandmother. Ms. Heinemann also owned a farm immediately

adjacent to the land at issue, which was acquired by the Wunderlichs.

       The Rouses acquired the land intending to build a manufacturing facility and

placed it into the ownership of Thorpe-Abbott Properties, LLC. In 2003, they succeeded

in getting the land rezoned to light industrial, but ran into other delays stalling

construction until 2013. Meanwhile, the Wunderlichs filed the present action asserting

property rights to the land through adverse possession. They claimed to have been

raising crops and grazing cattle on the land for at least 10 years with Ms. Heinemann, as

their predecessor in interest, doing the same before. In response, Mr. Rouse claimed to

have given Ms. Heinemann permission to farm the land until he was able to build his

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No. 32655-I-III
Wunderlich v. Rouse


factory. Shortly after this case was initiated, John Rouse filed a petition for guardianship

of Ellen Heinemann, alleging that she was incapacitated and needed a professional

guardian to manage her legal and financial decisions.

       During the deposition of John Rouse, Mr. Casey asked a series of questions about

Ms. Heinemann's alleged incapacity relating to her ability to care for herself. He then

asked, "Does she have a demonstrated inability to adequately provide nutrition for

herself?" to which Mr. Nayes objected and instructed his client not to answer, on the

grounds that it is irrelevant to a claim of adverse possession.

       In the Rouse's answer to the complaint they denied that any crops had been raised

or cattle grazed on the land. During the deposition Mr. Rouse admitted that some hay

had been raised on the land, but stated, "it's not a crop of any kind or size or value."

Clerk's Papers (CP) at 18. Mr. Casey then asked him, "So if the Complaint had said they

raised hay on the property, you wouldn't have denied that?" to which Mr. Rouse

responded, "Probably not." Id. Mr. Casey then asked "If the Complaint had said they put

cattle on the property versus grazed," at which point Mr. Nayes interjected asserting that

these were purely hypothetical questions without foundation. Id. Mr. Nayes then became

belligerent, and it does not appear that Mr. Casey was able to ask any rephrased version

of the question.

       Mr. Casey filed a motion to compel and request for sanctions. The motions judge

determined that there was no basis for instructing Mr. Rouse not to answer the questions

                                              3

No. 32655-1-II1
Wunderlich v. Rouse


and compelled answers to them. Additionally, the court determined that sanctions were

appropriate, but reserved an award for another time. Id.

       Following that, on the 21 st of February, 2014, the Wunderlichs served a set of

interrogatories and requests for document production addressed jointly to John and

Karma Rouse and Thorpe-Abbott Properties, LLC. After the full 30 days allowable Mr.

Nayes served a response containing only a laundry list of objections. To the

interrogatories he generally objected to all the interrogatories on the grounds that they

were not numbered in the proper sequence (no number 3 and two number 12s), that they

were propounded jointly to the defendants and not individually, and that there was

insufficient blank space to answer the interrogatories. He then objected individually to

some of the interrogatories. He also objected to each request for production on some

combination of the same eight objections. He then generally objected again to the

request being submitted jointly to the defendants as well as objecting on the grounds that

the requests did not specify a time, place, or manner for the production.

       Mr. Casey immediately sent a request to discuss the issues under CR 26(i). Mr.

Nayes responded that a full afternoon would be necessary and demanded that the

conference be recorded by a court reporter. The conference failed to resolve matters, so

Mr. Casey filed a new motion to compel. Judge Moreno granted the motion and imposed




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No. 32655-1-III
Wunderlich v. Rouse


sanctions on Mr. Nayes for both motions to compel. I A total of $1 ,40 1.30 was entered

pursuant to CR 26(g) and an additional $275 was entered pursuant to CR 37. 2

       Mr. Nayes appealed both the sanction order and, by supplemental notice, the

sanction award, to this court.

                                       ANALYSIS

       Mr. Nayes challenges both the sanction awarded for the deposition dispute and the

sanction awarded over the interrogatories. Both parties also seek attorney fees for this

appeal. We tum to those contentions in the order stated.

       This court reviews discovery sanction rulings for abuse of discretion. Blair v. TA-

Seattle E. No. 176, 171 Wn.2d 342,348,254 P.3d 797 (2011); Wash. State Physicians

Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299,338,858 P.2d 1054 (1993).                  I
Discretion is abused when it is exercised on untenable grounds or for untenable reasons.     1
State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
                                                                                             [

                                                                                             I
                                                                                             I
       IAlthough it appears from the ruling that Mr. Nayes ultimately responded to the       !
discovery requests prior to the hearing, our record does not indicate whether a ruling was
ever entered on his individual objections.                                                   I
      2 Judge Price also deducted the time Mr. Nayes spent on the discovery disputes         I
from the attorney fees awarded in the judgment in favor of the Rouses. Neither Mr.
Nayes nor his clients have appealed this ruling.                                             !i
                                             5
                                                                                             !t
                                                                                             f
                                                                                             it
No. 32655-I-III
Wunderlich v. Rouse


       Deposition

       CR 37(a)(2) authorizes a party to move for an order compelling discovery

whenever, inter alia, a person fails to answer a question propounded in a deposition. If a

motion to compel is granted

       the court shall, after opportunity for hearing, require the party or deponent
       whose conduct necessitated the motion or the party or attorney advising
       such conduct or both of them to pay to the moving party the reasonable
       expenses incurred in obtaining the order, including attorney fees, unless the
       court finds that the opposition to the motion was substantially justified or
       that other circumstances make an award of expenses unjust.

CR 37(a)(4).3

       Mr. Nayes contends that the challenged deposition questions were irrelevant and

improper argumentative/hypothetical questions to a lay witness. Therefore, he contends

that his objections were proper and not sanctionable.

       However, the limits of relevancy are much broader in discovery than under the

rules of evidence. Barfield v. City ofSeattle, 100 Wn.2d 878, 886,676 P.2d 438 (1984).

Discovery broadly permits investigation into any information "reasonably calculated to

lead to the discovery of admissible evidence." CR 26(b)(1). Given the context of the

litigation, where the defense sought to have one of the plaintiffs' key witnesses declared

legally incapacitated, the trial court's determination that questions in discovery



       3 The following paragraph of the rule is largely parallel and permits an award of
fees and costs when a motion to compel is denied.

                                             6

No. 32655-1-III
Wunderlich v. Rouse


examining the scope of the alleged incapacity were relevant cannot be considered

untenable. Whether the questions would have been relevant at trial would present a

different question. ER 401. The trial court, however, could understandably conclude that

they were a relevant topic of discovery.

       Mr. Nayes also objected to a question on the grounds that it was hypothetical and

argumentative. Again, he only points to law disallowing such questions on evidentiary

standards at trial. See Glazer v. Adams, 64 Wn.2d 144, 150,391 P.2d 195 (1964). While

the question may have been unartfully phrased as a hypothetical "if the complaint had

said they put cattle on the property instead of grazed," the substance of the question was

whether Mr. Rouse would agree that the plaintiffs had put cattle on the property. As their

possession and use of the property was a key fact underlying a claim of adverse

possession, this was certainly a relevant inquiry for discovery. Again, the trial court's

determination that this question sought appropriate material for discovery is tenable.

       Having tenable bases for finding the challenged questions were discoverable the

trial court did not abuse its discretion in imposing the sanction related to the deposition. 4

There was no error.




       It also should be noted that the sanctions imposed by the trial court were
       4
minimal, only covering the attorney's fees and costs associated with bringing the motion
to compel and conducting an additional deposition of Mr. Rouse.

                                              7

No. 32655-1-III
Wunderlich v. Rouse


       Response to Interrogatories and Requestfor Documents

       Mr. Nayes also argues that he should not have been sanctioned over the

interrogatory responses, contending that not enough space was provided to answer the

questions and that it was improper to ask three parties to respond to a single request for

production. He also argues that requiring a court reporter for the conference was not

prohibited conduct. We agree with the trial court that counsel's behavior reflected

"complete lack of cooperation in the discovery process" and that these responses were

unreasonable and made for the purpose of delay. CP at 286-287.

       CR 26(g) states in part:

       Every request for discovery or response or objection thereto made by a
       party represented by an attorney shall be signed by at least one attorney of
       record in the attorney's individual name. . . . The signature of the attorney
       or party constitutes a certification that the attorney or the party has read the
       request, response, or objection, and that to the best of their knowledge,
       information, and belief formed after a reasonable inquiry it is:
              (I) consistent with these rules ... ;
              (2) not interposed for any improper purpose, such as to harass or to
          cause unnecessary delay or needless increase in the cost of litigation; and
              (3) not unreasonable or unduly burdensome ....
              If a certification is made in violation ofthe rule, the court, upon
      motion or upon its own initiative, shall impose upon the person who made
      the certification, ... an appropriate sanction, which may include an order to
      pay the amount of the reasonable expenses incurred because of the
      violation, including a reasonable attorney fee.

Responses in discovery "must be consistent with the letter, spirit and purpose of the

rules." Fisons, 122 Wn.2d at 344.



                                              8

No. 32655-I-III
Wunderlich v. Rouse


       Nothing could be further from complying with the spirit and purpose of the rule

than the objection that insufficient space was provided in which to answer the questions

asked. In an earlier time when typewriters ruled law offices, it was quite simple to

respond "see attached" and type answers on the appropriate amount of paper. With

modem word processing, even that approach would be quaint and seldom necessary.5 In

the rare instance where a request did not give space in which to answer, the remedy is to

point out the deficiency to opposing counsel and ask for a properly formatted discovery

request. The solution is not to await the end of the answer period and then non-

responsively complain about the format. The trial court's determination that counsel

acted for the purposes of delay and added expense was well supported by the evidence.

       Similarly, the complaint that the three defendants were jointly requested to answer

a single set of interrogatories borders on the frivolous. While the rule is written in the

singular, as Mr. Nayes stresses in his arguments, they were essentially one party-a

married couple and their LLC-and it could be reasonably assumed that they had one

answer. Mr. Nayes represented all defendants, so we imagine that there was no conflict

of interest among them or counsel could not have ethically represented all of them. In the

event that more than one of the defendants would have to answer a question, the




        5 We note that the defendants were able to expand the answer space sufficiently to
raise all of their objections.

                                              9

No. 32655-1-III
Wunderlich v. Rouse


responding party easily could be identified for each question. In light of the response

given, we again understand why Judge Moreno ruled as she did.

       The argument that there was no due date for the production of the documents-as

required by CR 34(b)(2)(B}-likewise borders on the frivolous. The request indicated

that the documents could be produced at a mutually convenient time. This apparent

effort by the plaintiffs to accommodate the defense stands in stark contrast to the

objection filed. But, again, if this open-ended accommodation created a difficulty for the

defense, the easy answer was to point out why this approach was a problem and ask for a

due date or else simply produce the material at a convenient time. However, Mr. Nayes

and his clients did not follow either of those options.

       Finally, Mr. Nayes contends that there was nothing improper in demanding that

the CR 26(i) conference be reported. While we agree with his argument that there is no

rule impediment to recording a CR 26(i) conference, the remainder of his argument

founders on the trial court's conclusion that his motives 6 were impure-the purpose of

the request, in the trial court's view, was simply to increase the costs of the litigation and

delay resolution of the underlying case. If there was such a breakdown of trust between

the opposing attorneys that recording the conference was necessary, an explanation of


       6 In this light, we do not address the arguments that some of the interrogatories
were broad, vague, or otherwise deficient. The trial court did not address any of those
specific complaints, so this court is not in a position to address the merits of them. They
apparently were lost in the sound and the fury of the other arguments.

                                              10 

No. 32655-1-II1
Wunderlich v. Rouse


that need could have been put forth in response to the sanctions argument in order that the

trial judge could consider the argument. That did not happen here.

       In all, the trial court had very tenable reasons for imposing the sanctions, which

were specifically tied to the costs of the sanctionable conduct. There was no abuse of the

court's considerable discretion.

       Attorney Fees

       Mr. Nayes asks for attorney fees due to the need to pursue this appeal, while

respondents seek fees for addressing the supplemental notice of appeal. We deny both

requests.

       RAP 18.1 (a) allows this court to grant attorney fees if applicable law grants the

right to such recovery. Attorney fees are available on appeal from a discovery sanction

order. CR 37(d); Magana v. Hyundai Motor Am., 167 Wn.2d 570,592-593,220 P.3d

191 (2009). Mr. Nayes, however, was unsuccessful in this appeal and is not entitled to an

award of fees.

       The respondents seek fees only for the need to file a supplemental brief after the

supplemental notice of appeal. While they properly complain that the appellant

designated a far greater supplemental record than was needed, that expense did not fall on

the respondents and is not a basis for granting any relief. The reduction of the sanction

award to a judgment compelled the supplemental appeal and assignment of error. It

would have been a hollow victory for Mr. Nayes to have prevailed on the sanction order

                                             11 

No. 32655-1-III
Wunderlich v. Rouse


ifhe also had failed to challenge the judgment and been bound by it regardless of the

outcome of the appeaL It was not improper to file the supplemental appeal and

supplemental brief.

      Accordingly, both requests for attorney fees are denied. The judgment is affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





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