      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



CONTRACTORS BONDING AND                              No. 72115-1-1
INSURANCE COMPANY,
                                                     DIVISION ONE
                    Respondent,



WAYNE and KIMBERLY BERRY,                            UNPUBLISHED
husband and wife and the martial
community comprised thereof and                      FILED: June 22, 2015        K.O

COMMERCIAL CONSTRUCTION
SERVICES, INC.,

                    Appellants.



      Cox, J. - When a party seeks a continuance of the hearing on a motion for

summary judgment to conduct additional discovery, the court may deny the

motion for any of several reasons. Among them is if "'(1) the requesting party

does not have a good reason for the delay in obtaining the evidence, (2) the

requesting party does not indicate what evidence would be established by further

discovery, or (3) the new evidence would not raise a genuine issue offact."'1
Here, defendants Wayne and Kimberly Berry failed in their burden to show good

reason for failing to previously conduct discovery. They also failed in their

burden to establish that any new evidence would raise a genuine issue of



       1 Bldq. Indus. Ass'n of Wash, v. McCarthy, 152 Wn. App. 720, 742-43, 218
P.3d 196 (2009) (quoting Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671
(2003)).
No. 72115-1-1/2



material fact. Thus, the trial court did not abuse its discretion when it denied their

motion for a continuance. The court also properly determined that Contractors

Bonding and Insurance Company (CBIC) was entitled to summary judgment. We

affirm.

          CBIC sued the Berrys and their company, Commercial Construction

Services, Inc., (collectively "Berry") for violating the terms of an indemnity

agreement connected to payments made on a surety bond. CBIC agreed to act

as Berry's surety for a construction contract, promising "to cover any claims

made against [Berry] and guarantee payment of those claims in the event that

[Berry] did not pay the claims on the job bonded by [CBIC]." Berry had

subcontracted with Hensel Phillips Construction to work on a project at Los

Alamos National Labs.

          Hensel Phelps eventually claimed that Berry had violated the subcontract

"by failing to man the job properly and provide the needed equipment and

materials." CBIC paid Hensel Phelps $162,068.00 to settle its claims against

Berry. CBIC also paid other entities $169,312.12 to settle their claims against

Berry.

          Berry refused to reimburse CBIC for these payments, as it was required to

do under the terms of their agreement.

          CBIC served Berry in August 2013. Berry was initially represented, but his

attorney filed a notice of intent to withdraw on March 7, 2014.
No. 72115-1-1/3



       On April 24, 2014, CBIC moved for summary judgment. CBIC supported

its motion with the affidavit of Chris Simmelink, one of its employees. The motion

was set for hearing on May 29, 2014.

       Six days before the scheduled summary judgment hearing, Wayne Berry,

acting pro se, sought discovery for the first time, serving CBIC with a request for

production of documents. Two days before the scheduled hearing, he moved to

continue the summary judgment hearing and filed a brief in opposition to

summary judgment.

      The trial court denied Berry's motion for a continuance and granted

summary judgment in favor of CBIC at the summary judgment hearing.

       Berry appeals.

                                 CONTINUANCE


       Berry argues that the trial court abused its discretion when it denied his

request for a continuance. We disagree.

       Under CR 56(f) a trial court may order a continuance for further discovery

when "it appearfs] from the affidavits of a party opposing the [summary judgment]

motion that he cannot, for reasons stated, present by affidavit facts essential to

justify his opposition." The court may deny a motion if "'(1) the requesting party

does not have a good reason for the delay in obtaining the evidence, (2) the

requesting party does not indicate what evidence would be established by further

discovery, or (3) the new evidence would not raise a genuine issue of fact."'2


       2 Bldq. Indus. Ass'n of Wash., 152 Wn. App. at 742-43 (quoting Butler, 116
Wn. App. at 299).
No. 72115-1-1/4



      We review the denial of a CR 56(f) motion for abuse of discretion.3

"A trial court abuses its discretion when its 'decision is manifestly unreasonable,

or is exercised on untenable grounds, or for untenable reasons.'"4

       Here, the court did not abuse its discretion in denying the motion for a

continuance. Berry did not have good reason for delaying discovery until shortly

before the summary judgment hearing. Moreover, Berry did not establish that

any new evidence would raise a genuine issue of material fact.

       In the pro se motion for a continuance filed on May 27, Wayne Berry

explained that his mother had passed away on April 8, 2014. But he did not

explain why he had failed to conduct any discovery in the time between

commencement of this action in August 2013 and April 2014.

       Additionally, the trial court noted that the underlying dispute between Berry

and CBIC had been going on since June 2011. Berry had also stated that he

had "600 pages of correspondence with CBIC over CBIC's payments on the

bond. Thus, the trial court believed that Berry had received an adequate

opportunity to conduct discovery:

          And I hear that as early as June 2011 there was a dispute with
       Hensel Phelps. And on the one hand I hear you've got over 600
       pages of documents about that dispute and about what CBIC was
       going to do about it, and on the other hand that you need a chance




       3 MRC Receivables Corp. v. Zion, 152 Wn. App. 625, 629, 218 P.3d 621
(2009).

       4 Hundtofte v. Encarnacion, 181 Wn.2d 1, 6, 330 P.3d 168 (2014) (internal
quotation marks omitted) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d
638 (2003)).
No. 72115-1-1/5



       to do discovery. And I'm having trouble squaring those two
       statements.t5]

       At the summary judgment hearing, Berry's New Mexico counsel, who

appeared telephonically, in a conference call with the Berrys, informed the court

that she planned to represent Berry pro hac vice with the assistance of local

counsel. She stated that Berry was "still looking" for local counsel. But she did

not explain why Berry had been unable to find local counsel between March 7,

when Berry's counsel withdrew, and the date of the summary judgment hearing.

       Thus, Berry did not establish that he had good cause for failing to engage

in discovery earlier in this action.

       Berry also failed to establish that any evidence he would obtain through

discovery would raise a genuine issue of material fact.

       Under the terms of the agreement, CBIC had the right to "[determine in

its sole discretion whether any claim shall be paid."6 Additionally, Berry agreed

that "[a]bsent fraudulent intent on the part of the surety" he would "be

conclusively and unconditionally bound by [the] surety's determination."7

       Berry noted that his answer alleged fraud as an affirmative defense. But

at the summary judgment stage, one may not rely on mere allegations of the

pleadings.8 Berry failed to cite any evidence that he believed discovery would



       5 Report of Proceedings (May 29, 2014) at 30-31.

       6 Clerk's Papers at 34 (emphasis added).

       7 ]d. (emphasis added).

       8 CR 56(e).
No. 72115-1-1/6



uncover that could establish a genuine issue of material fact whether CBIC had

fraudulent intent.

       Finally, the court directly asked Wayne Berry whether he wanted a

continuance and he said no:

       THE COURT: Okay. Let me ask you this: Tell me what
       specifically—are you asking me to continue this?

       MR. BERRY: No, ma'am.!9!

He went on to state "I'm asking you to deny the summary judgment and let us

have our day in courtwith these people. That's what I'm asking you to do."10

       Thus, the court did not abuse its discretion in denying Berry's motion for a

continuance.


       Berry argues that a "court abuses its discretion by denying a continuance

in the face of a party's reasonable difficulty locating counsel." But Berry did not

establish that he had faced "reasonable difficulty" in obtaining counsel. The

record is silent on why new counsel was not retained after previous counsel

withdrew.

       The cases Berry cites to support this proposition are also distinguishable.

In Coqqie v. Snow, Vernon Coggle's lawyer retired and found another lawyer to

take the case.11 Coggle asked for a continuance of 30 to 45 days for his new




       9 Report of Proceedings (May 29, 2014) at 25.

        10 id, at 26.

        11 56 Wn. App. 499, 502, 784 P.2d 554 (1990).
No. 72115-1-1/7



attorney to obtain an affidavit from his treating physician.12 Thus, Coggle sought

a brief continuance and specifically noted the evidence that the additional time

would allow him to produce. In contrast, Berry asked for a continuance of at

least 120 days, "to do discovery [and] to arrange for new Washington State

counsel."


       In Butler v. Joy. Mary Butler's initial attorney withdrew shortly before a

motion for summary judgment was filed.13 Butler was able to "obtain[] new

counsel in a little over a month" and her new counsel sought a continuance.14

The hearing was not recorded, so it was unclear "whether [counsel] argued that

he needed more time to obtain further discovery or what further evidence he

expected to produce."15 Thus, in Butler, it was clear that Butler had acted

promptly to obtain new counsel. In contrast, Berry was "still looking" for new

local counsel at the hearing on May 29, although his previous counsel had filed

his notice of intent to withdraw on March 7.

       Berry also argues that the court abused its discretion because it granted

summary judgment before the end of the discovery deadline. Berry argues that

"[t]ypically, summary judgment motions are not made until each side has had a




       12 id

       13 116 Wn. App. 291, 299, 65 P.3d 671 (2003).

       14 id

       15 Id.
No. 72115-1-1/8



chance to engage in formal discovery."16 But in this case, Berry had received the

opportunity to engage in formal discovery. The fact that the discovery deadline

had not expired does not negate the fact that Berry did not engage in discovery

between August 2013 and May 2014.

       Finally, Berry argues that the trial court abused its discretion because

Wayne Berry's mother had passed away in April 2014. But Berry had failed to

seek discovery from August 2013 to May 2014. Thus, the trial court's denial was

not based solely on Berry's conduct in April 2014.

                              SUMMARY JUDGMENT

       Berry also argues that the trial court erred by granting CBIC summary

judgment "without any documentation supporting the amounts CBIC allegedly

paid on the bond." We disagree.

       Under CR 56(e) affidavits supporting a motion for summary judgement

"shall be made on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant is competent

to testify to the matters stated therein."

       Here, CBIC supported its motion for summary judgment with an affidavit

from one of its employees, Chris Simmelink. Simmelink's affidavit states that he

has personal knowledge of its contents and is competent to testify. Simmelink

stated that Berry had failed to pay a total of $169,312.12 to 11 suppliers named

in the declaration. It stated that Berry "initially raised some questions about

these bills but was unable to supply any documentation to support [his] position."

       16 Brief of Appellants at 12 (quoting 14A Karl B. Tegland, Washington
Practice: Civil Procedure § 25:3 at 104 (2d ed. 2009)).

                                             8
No. 72115-1-1/9



Thus, CBIC paid the claims "pursuant to the bond terms between June 28, 2011

and November 30, 2011."

      The affidavit also states that Hensel Phelps sent a notice that Berry "was

in breach of [his] subcontract by failing to man the job properly and provide the

needed equipment and materials." But Berry "failed to respond to the demands

by both [CBIC] and Hensel Phelps Construction to complete the work and

provide as built drawings and warranties." Accordingly, Berry paid Hensel

Phelps $162,068.00 to settle its claims against Berry.

       Finally, Simmelink testified that Berry had refused to reimburse CBIC for

the amounts it had paid under the bond.

      Thus, Simmelink's affidavit complied with the requirements of CR 56(e)

and meet CBIC's initial burden as the moving party. Berry failed to contest the

assertions in Simmelink's affidavit with his own affidavits, as required under CR

56. Thus, the trial court properly granted CBIC summary judgment.

       Berry argues that CBIC should have been required to submit additional

evidence to meet its burden. But Berry is unable to cite a provision of CR 56 that

requires additional evidence beyond affidavits containing personal knowledge.

       Berry also argues that "the amount of [CBIC's] alleged payments conflicts

with the only documentation in the record." To support this assertion, Berry cites

a letter from Hensel Phelps that demands that Berry immediately provide:

       1. Manpower and materials to complete bollards and other
       remaining sitework.

       2. Manpower, materials and equipment to complete and startup the
       Fuel System.
No. 72115-1-1/10



      3. Manpower, materials and equipment to complete the generator
      room damper installation.

      4. Complete flashings at pipe penetrations on the roof.

      5. Provide written final inspection by the roofing manufacturer[']s
      representative.

      6. Provide evidence satisfactory to Hensel Phelps of payment in full
      of all current third party obligations.[17]

Berry then cites a document, which allegedly values the cost of these six items

as $3,150.00, though it is unclear how exactly this document does so.

      Assuming that Berry is correct that the cost of correcting these six items

was $3,150.00, it is still not evidence contradicting the assertions in Simmelink's

affidavit. The letter from Hansel Phelps to Berry did not state that those six items

were its only claims. It merely demanded that those six items be addressed

immediately. Once Hensel Phelps determined that Berry had breached the
contract, it could have made additional valid claims against the bond. Nothing in

Berry's evidence forecloses this possibility.

       We affirm the summary judgment order.                  si      ~-r~

                                                            ^2M-

WE CONCUR:




                                                 ^.vj.vwg&,:
       17
            Clerk's Papers at 67.



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