### FILED SEPTEMBER24, 2015 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE JOHNSONBROTHERS ) CONTRACTING, INC., ) No. 32165-7-III ) Appellant, ) ) v. ) ) UNPUBLISHED OPINION CHARLES L. BLEVINS and JANE DOE ) BLEVINS; and ZINE A. BADISSY and ) JANE DOE BADISSY, d/b/a BLACK ) ROCK ORCHARDS, a sole ) proprietorship, ) ) Respondents, ) ) MT. ADAMS TRUCKING, INC; ) DENNYAMES and JANE DOE AMES; ) and TIMDUKE andJANEDOEDUKE, ) ) Defendants. SlDDOWAY, C.J.

- Several days into a benchtrial ofJohnson Brothers ContractingInc.'s action for damages to its heavy equipment, a Yakima County Superior Courtjudgedeclared a mistrial afterJohnsonBrothers suddenly located and produced photographs ofthedamage-photographsits owners earlierbelievedhadbeen lost. Johnson Brothers appeals, assigning errortothe orderdeclaring a mistrial and the trial court's sanction imposingthe $16,000 in attorney fees and costs incurred inthe abortedNo. 32165-7-111 Johnson Bros. v. Blevins
trial by defendants Zine Badissy, Charles Blevins, their marital communities, and their soleproprietorship, BlackRock Orchards (collectively Black Rock). Johnson Brothers argues that its lateproduction ofthe photographs resulted from

an innocent mistake by a third party. Italso argues thatwhere the case was being tried to

ajudgerather than ajury, BlackRock could not reasonably complain ofprejudice because the photographs contradicted its trial theory. Thephotographs were known to be important evidence, were the subject ofa timely discovery requestby Black Rock, and were not produced as the result of omissions ofJohnson Brothers' lawyers thatthe court found to be unintentional but unreasonable. By the time the photographs were produced, Black Rock, not having seen them, had proceeded with a defense that Johnson Brothers' lawyer observed at the time "crumble[d]"with the photographs' production. 3 Report ofProceedings (RP) at 243. The trial court's response to the situation was a reasonable response to the circumstances presented. We affirm. FACTS AND PROCEDURAL BACKGROUND Johnson Brothers is a tree removal business located in Kennewick. It specializes in removing fruit trees and grinding them for recycling use. In June 2007, Johnson Brothers entered into a contractwith BlackRock Orchards, a sole proprietorship conductedby Charles Blevins and Zine Badissy, to remove windbreaktrees surrounding its orchard located east ofMoxee. Johnson Brothers began its work at the orchard on 2No. 32165-7-III Johnson Bros. v. Blevins August 24 by moving to the orchard a fleet ofheavy equipment that included a front-end loader, a John Deere excavator, and a skidder used for chipping. Johnson Brothers finished work at the BlackRock Orchards property on September 5, andtwo ofits employees arrived at the orchard early on the morning of September 6 to prepare the equipment so that truckers could haul it to the nextwork site. Upon arrival, they discovered that some ofthe company's equipment had been badly damaged. Another machine was missing a large amount ofhydraulic fluid. One ofthe Johnson Brothers employees, Richard Holcomb, called his manager, BrentDeroo, to reportwhat had happened. Mr. Deroo told Mr. Holcomb to take photographs to documentthe damage, call the sheriff's department, and come in to the office to make a report. Mr. Holcomb complied and was told that sheriff's deputies would be out to investigate in the afternoon. Mr. Holcomb returned to the Black Rock Orchards property that afternoon to meet the sheriff's deputy, and while he was waiting, Tim Duke and Denny Ames, who were associated with Mt. Adams Trucking, arrived atthe site where Mr. Holcomb had traced oil spills and found a broken windshield from the excavator that morning. They too had been doing work for BlackRock Orchards. Mr. Holcomb confrontedMr. Duke and Mr. Ames about using Johnson Brothers' equipment, and the two men admitted that they had been using the equipment at night, claiming they were given permission to use it by Mr. Blevins. They also admitted damaging the equipment while using it. The sheriff's 

### 3No. 32165-7-III Johnson Bros. v. Blevins deputy arrived toward the end ofMr. Holcomb's discussion with Mr. Duke and Mr. Ames, and the two Mt. Adams employees were then questioned by the deputy. The photographs ofthe damage that had been taken by Mr. Holcomb were later delivered by Mr. Holcomb orMr. Derooto Johnson Brothers' attorney at the time, Toni Meacham. Because the damaged equipment was hauled away before the sheriff's deputy arrived and was promptly repaired, the photographs were the only tangible evidence documenting the damage. 

### In December 2007, Ms. Meacham filed suit onbehalfofJohnson Brothers against Mr. Ames, Mr. Duke, and Mt. Adams. The lawsuit was later dismissed without prejudice. Thereafter, in August 2009, David Trujillo, who had taken overJohnson Brothers' representation in connection with the loss, filed a second action. This time, he named as additional defendants Messrs. Blevins and Badissy, doing business as BlackRock Orchards, and their respective marital communities. According to declarations later filed in the case, no photographs had been included in the legal file that Ms. Meacham passed along to Mr. Trujillo. Having been told by his client's representatives thatphotographs were taken and hadbeen given to Ms. Meacham, Mr. Trujillo asked her to check and see ifshe had them; she reported that she couldnot find any. Mr. Trujillo later inquired ofthe sheriff's department whether his client's

4No. 32165-7-III Johnson Bros. v. Blevins photographs had beenprovided to them. Department employees could not find photographs in a search oftheir files. In October 2009, Black Rock answered the complaint, asserting a cross claim against Mr. Ames and Mr. Duke, doing business as Mt. Adams Trucking. Mr. Ames had failed to answer Johnson Brothers' complaint, and JohnsonBrothers had obtained a defaultjudgment against him. ButBlackRockproved unable to secure service of process on eitherMr. Ames orMr. Duke. Lawyers for Johnson Brothers and BlackRock reached a gentleman's agreement thatthey would notify each other ifand when they ever located Mr. Ames. In November 2010, Black Rock served Johnson Brothers with a request for production ofdocuments that included a request for production ofany photographs supporting its damage claim. 

### Mr. Trujillo again inquired ofMs. Meacham in late November, and she againreported that she could not find any photographs. Accordingto Ms. Meacham, she heard nothing back and assumed that the photographs had been found elsewhere. Neither the request for production norMr. Trujillo's responses are included in the record on appeal. When the trial court later asked Black Rock's counsel to read the request that had beenmade for photographs, counsel responded: "Produce a copy ofall documents that support your itemization ofdamages. Definition ofdocuments: broad as possible meaning, all written, graphic, printed, orrecorded matter, reports, photographs, orotherpaper or tangible 

### 5No. 32165-7-111 Johnson Bros. v. Blevins documents, pictures" and it goes on. I'mparaphrasing but those are all direct words. 3 RP at 242. The court's findings state that "[v]ia its response, the plaintiffdid not indicate that photographs had once existed but simply could not be found, nor any explanation as to why the photographs could notbe found." Clerk's Papers (CP) at 152. When asked by the trial court whetherhe agreed the photographs wouldhave been responsive to the request, Mr. Trujillo stated, "Absolutely, Your Honor. Itwas the biggest frustration ofthis whole case." 3 RP at 243. Itis undisputed thatMr. Trujillo signed a CR26(g) certification confirming thathis client's discovery answers and production followed a diligent search ofall evidence and records within his client's and Mr. Trujillo'spossession, custody, and control, after consultation with all persons with any knowledge ofthe facts. According to Mr. Trujillo, he informed defense counsel that photographs ofthe damages to the equipmenthad been taken, and thatwhile Mr. Holcomb and Mr. Deroo thought that they had given thephotographs to Ms. Meacham, they "werenot sure exactly whathappened to the pictures orwhere they were ifthe attorneys didn'thave them." CP at 45. Mr. Trujillo also claims thathetold defense counsel he would give him the pictures when and ifhe found them. Documents produced to Black Rockby Johnson Brothers included employee time cards reflecting time spent byMr. Holcomb taking pictures ofthe damaged equipment.

6No. 32165-7-111 Johnson Bros. v. Blevins

When deposed by the defendants, Mr. Deroo and Mr. Holcomb were asked about the photographs. Theyreportedly affirmedthat photographs hadbeentaken but statedthey had noknowledge ofthe whereabouts ofthe photographs. Both described the damages they had seen. Onthe eve oftrial, Mr. Trujillo located

### Mr. Ames. Defense counsel expressed frustration at the timing of

### Mr. Ames' appearance and moved for a continuance. The court denied the request but conditioned Mr. Ames' testimony at trial onhis making himselfavailable for deposition beforehand. Mr. Ames was deposedthe evening before the first day oftrial. What was projected to be a two-day trial began on Wednesday, September 11, 2013. On September 11 and 12, Johnson Brothers called as witnesses

### Mr. Deroo and then Mr. Holcomb. BlackRock's lawyer cross-examined both witnesses about the importance ofthe ostensibly lost photographs, planning to argue that a negative inference should be drawn from Johnson Brothers' failure to produce them. I When trial was not

1BlackRock cross-examinedMr. Deroo as follows: Q. Are you aware ofany photographs that exist ofthese damages that you claim occurred to the equipment? A. 1 am aware ofphotographs taken, but that's when the attorneys changed from our behalfbecause 1know that Richard, as well as Luke Davis, tookpictures. Wherethosephotographs are today, 1 am not sure. Q. Andyoutold Richardto take thephotographs soyou would have a record, didn'tyou? A. Yes 1 did. 

### 7No. 32165-7-III Johnson Bros. v. Blevins completed in the two days originally set for trial, the court settwo additional days, beginning the following Wednesday, September 18. On Sunday, September 15, Mr. Trujillo contactedMs. Meacham again about the photographs. He explained in a subsequently filed declaration that

we verbally retraced her steps on how she had gotten the case in the first place when a furious Mr. BrentDeroo, the manager ofJohnson Brothers called her about the damaged equipment. Ms. Meach[a]m on this occasion thenjusthappened to mention to me that she hadpreviouslyrepresented BrentDeroo on an unrelated matterjustbefore Johnson Brothers hired her for this matter, and that was how she actually gotthe referral on this case. Q. Because you thoughtthose photographs wouldbe important evidence, correct? A. Yes 

### I did. 2 RP at 85. Itcross-examinedMr. Holcomb as follows: Q
.... So you called Mr. Deroo andMr. Deroo instructed youto takephotographs ofthe damage? A. Right. Q. And you didthat? A. Yes. Q. Andyou don't have thosephotographs today, do you? A. I don't, no. Q. Andpriorto this lawsuit, you never gave thosephotographs into thepossession ofMr. Blevins orMr. Badissy? A. No, 

### I never did. Q.
. .. And the reason youtookphotographs is you wanted to documentwhatthe damage was? A. Yes. Q. Youwanted to create some evidence ofwhat the damage was? A. Right. 2 RP at 199-201.



### 8No. 32 1 65-7-II1 Johnson Bros. v. Blevins

... Ms. Meach[a]m also mentioned the difficulty ofsearching the Johnson Brother[s] file again at this point in time because 

### ittoo was no longer in her office anymore now and was in an archived storage unit. CP at 46. The next day, however, Ms. Meacham contacted Mr. Trujillo and told him that she had gone to her storage unit after speaking with him, and while she again found no photographs in herJohnson Brothers file, she decided to search Mr. Deroo's file "on a desperation whim" and found the photographs there. 

### Id. On Tuesday, September 17, she scanned and e-mailed the photographs to Mr. Trujillo and prepared and provided Mr. Trujillo with a declaration explainingher belated discovery ofthe photographs. Mr. Trujillo tookthe photographs to a copy service and dropped offa set ofcolorphotocopies to defense counsel at 10:00 a.m. on September 17. He reportedly attached a letterto the photographs expressinghis view that the defense was "crumbling" and offered to settle. 3 RP at 243. When trial continued on Wednesday, Mr. Trujillo recalled Mr. Holcomb to the stand and had the photographs marked for identification. Black Rock immediately objected to the admission ofthe photographs, alleging a violation ofCR26(g) by Mr. Trujillo and his client. BlackRock's lawyer argued thatthe court should impose the most severe sanction for discovery abuse-exclusion ofthe evidence-andalternatively that the court should declare a mistrial and sanction Johnson Brothers by requiring it topay Black Rock's fees 9No. 32165-7-III Johnson Bros. v. Blevins
and costs incurred in the aborted trial. He argued, among other matters, that "everybody knows[,] I think[,] in this courtroom ... [as] a lawyerwhat I've been doing. I've been establishing [a] spoliation ofevidence defense because they took these photographs knowing they were important." 3RP at 243. He later expanded on his trial theory: [T]he photographs could have been critically important because by the Plaintiff's witnesses' own admission, they removed the equipment from the site before my parties could even get there and look at it, before the sheriff's deputy could even get there and look at it. And then they moved to repair it before anybody from our side had a chance to inspect it. So the photographs were goingto be the only smoking gun, ifthere were to be one. That's why their non-existence, non-disclosure was so critically important. 3 RP at 256. '''Ithought [this] was a no-evidence case,'" Black Rock's lawyer argued, '" and now there is evidence.'

... It's a complete wholesale change." 3 RP at 258. Mr. Trujillo responded that no CR26(g) violation could be found because he had inquired ofboth Ms. Meacham and the sheriff's department three times but was told no
one could find the photographs. In response to the problem created for BlackRock's trial strategy, he responded, [Defense counsel] wasjustrelishing all during the past week belittlingmy clients and our witnesses. "Soyou say you tookpictures," this that. The truth was and to his dismay, that yes everyone has been testifYing truthfully. This corroborates that. 3 RP at 260. Admitting that the defense had not beenprovided with important evidence, he stated, "[B]ut it wasn'tbecause there was any CR26(g) violation. I had every

10No. 32l65-7-III Johnson Bros. 

### v. Blevins
incentive to produce those photos

.... Wejustcouldn't find it.

... It'sjustone ofthose things in life that happens." 3 RP at 261. Afterhearing argument, the trial court refused to exclude the evidence but declared a mistrial and imposed BlackRock's fees and costs incurred in the aborted trial

as sanctions for a CR26(g) violation. In announcing its decision, the court stated that it "want[ed] to make it clear[ that i]t was not an intentional commission ofan act to withhold documents

.... I do not find, noris there any evidence[,] thatthese documents

were known and hip-pocketed, but I do find that the omission constitutedunreasonable conduct." 3 RP at 269. Johnson Brothers moved for reconsideration, which was denied. It appeals. ANALYSIS Johnson Brothers makes three assignments oferror on appeal. Itargues first, that the trial court erred in finding a violation ofCR 26(g); second, that it erredby declaring a mistrial rather than ordering a continuance; and third, that it erredby imposing a sanction of$16,000 in fees and costs due to "the innocent actions ofan independentthird-party." Appellant's Opening Br. at 1. We first address the trial court's finding ofa CR 26(g) violation and, finding no abuse ofdiscretion, then tum to Johnson Brothers' challengeto . the sanctions imposed.

11No. 32 I65-7-III Johnson Bros. v. Blevins


### 1. Finding of a violation ofCR26(g) CR 26(g) requires that every response or objection to discovery by a party represented by an attorney be signed by at least one attorney ofrecord for the party, and that the signature constitutes a certification "thatthe attorney ...has readthe request, response, or objection, and thattothe best of[his] knowledge, information, and belief formed after a reasonable inquiry," it is-relevanthere-"consistentwith [the] rules [for superior court]." CR26(g) further provides that "[i]fa certification is made in violation ofthe rule, the court ... shall impose upon the person who made the certification, the party onwhose behalfthe

...response ... is made, orboth, an appropriate sanction, which may include an orderto pay the amount ofthe reasonable expenses incurred because ofthe violation, including a reasonable attorney fee." Johnson Brothers concedes that under CR 34(a)(1), Black Rock had a right to obtain its production ofphotographs within the scope ofCR26(b) that were "inthe responding party'spossession, custody, or control." Generally speaking, CR 34 requires that a party "make a 'reasonable inquiry' to acquire the information or documentation sought by a discovery request." Diaz v. Wash. State Migrant Council, 165 Wn. App. 59,
. 76,265 P.3d 956 (2011) (quoting Wash. State PhYSicians Ins. Exch. 

### &Ass 'n v. Fisons Corp., 122 Wn.2d 299, 343, 858 P.2d 1054 (1993». Johnson Brothers argues, however, that Black Rock never demonstrated thatJohnson Brothers hadpossession, custody, or control ofthe photographs taken by Mr. Holcomb at the time ofBlackRock's November 12No. 32165-7-III Johnson Bros. 

### v. Blevins
20 10 discovery request; rather, it argues, the photographs were in a file for Mr. Deroo, in the archives ofa fonner attorney who was no longer employedby, working for, orunder the control ofJohnson Brothers. As a result, it argues, Mr. Trujillo could not have violated CR26(g) when his inquiries to Ms. Meacham did not produce the photographs that she, orher employees, had misfiled. A trial court exercises "broad discretion" in imposing discovery sanctions under CR 26(g), "and its detennination will not be disturbed absent a clear abuse ofdiscretion." Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). In Fisons, our Supreme Courtrecognized that the sanction rules are'" designed to conferwide latitude and discretion upon the trialjudge to detennine what sanctions are proper in a given case and to reduce the reluctance ofcourts to impose sanctions.'" 122 Wn.2d at 339 (internal quotation marks omitted) (quoting Cooper v. Viking Ventures, 53 Wn. App. 739, 742-43, 770 P.2d 659 (l989». This courtrecently addressed the meaning of"control" inDiaz, observingthat '" [c]ontrol,' apart from possession, is defined as 'the legal right to obtainthe documents requested upon demand.'" 165 Wn. App. at 78 (quotingSearockv. Stripling, 736 F.2d 650,653 (lith Cir. 1984». We further noted that "[c]ontrol may also be found where an entity has access to and the ability to obtain the documents," and that "[t]heburden of demonstrating that the party from whom discovery is sought has the practical ability to obtain the documents at issue lies with the party seeking discovery." Id. 13No. 3216S-7-II1 Johnson Bros. v. Blevins

A client has the legal right to demand delivery ofits property from its former lawyer. Under RPC 1.ISA(c)(3), "[a] lawyer must identify, label and appropriately safeguard" clientproperty. "The lawyer must keep records ofsuchproperty that identify theproperty, the client orthird person, the date ofreceipt and the location of safekeeping." RPC 1.ISA(c)(3). Except as provided by the rule, "alawyer must promptly

... deliver to the client

...the property which the client

... is entitled to receive." RPC 1.ISA(f). "Upon termination ofrepresentation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests," including "surrendering papers andproperty to which the client is entitled." RPC 1.16(d); accord Am. Soc

### y forPrevention of Cruelty to Animals v. RinglingBros. & Barnum & Bailey Circus, 233 F.R.D. 209,212 (D.D.C. 2006) ("Because a client has the right, and the ready ability, to obtain copies ofdocuments gathered or created by its attorneys pursuantto their representation ofthat client, such documents are clearly within the client's control."). Johnson Brothers argues thatbecause Ms. Meacham misfiled the photographs in 

### Mr. Deroo's file, she should be viewed as an "independentthird-party." Appellant's Opening Br. at I. Butthe fact that Ms. Meacham or someone on her staffplaced the photographs in the wrong file does not change her duty to the former clientto whom the property belonged-JohnsonBrothers-andtherefore does not change the analysis. And 

### Mr. Trujillo's and Ms. Meacham's actions, as described by their declarations, show that 14No. 32165-7-III Johnson Bros. v. Blevins they shared a correct understanding that Mr. Trujillo had a right to ask that she deliver photographs entrusted to her by Johnson Brothers and that she had a duty to look for them. Therecord supported the trial court's implicit conclusion that the photographs

were underJohnson Brothers' control. The only issue, then, is whetherthe court abused its discretion when it found that Mr. Trujillo failed to make a reasonable inquiry and imposed sanctions. "Whether an attorney has made a reasonable inquiry is to bejudgedby an objective standard. Subjective beliefor good faith alone no longer shields an attorney from sanctions under the rules." Fisons, 122 Wn.2d at 343 (footnote omitted). Inadvertence is not a defense; "the Fisons decision set the standards for discovery sanctions under CR26(g) and made it clear that 'intent need notbe shown before sanctions are mandated.'" Mayer, 156 Wn.2d at 689 (quotingFisons, 122 Wn.2d at 345). "[E]ven an inadvertent error in failing to disclose [evidence] has been deemed willful as a 'willful violation means a violation without a reasonable excuse.'" Carlson v. Lake Chelan Cmty. Hosp., 116 Wn. App. 718, 737, 75 P.3d 533 (2003) (internal quotation marks omitted) (quotingIn re Estate of Foster, 55 Wn. App. 545, 548, 779 P.2d 272 (1989)). In determining whether an attorney has complied with CR26(g), the trial court should consider "all ofthe surrounding circumstances, the importance ofthe evidence to its proponent, and the ability ofthe opposingparty to formulate a response orto complywith the request." Fisons, 122

15No. 32 1 65-7-III Johnson Bros. 

### v. Blevins
Wn.2d at 343; Panorama Vill. HomeownersAss 'n v. GoldenRuleRoofing, Inc., 102 Wn. App. 422, 431, 10P.3d417 (2000). By Johnson Brothers' own admission, the photographs were important. In ruling

onthe CR 26(g) motion, the trial court characterized the photographs as "critically important" to the case. 3

### RP at 256. "They are not collateral; they are central." 3 

### RP at 269. Noting that "[a] lot oftimes in these discovery disputes

... [the] documents are often collateral and not central to the case,"the court stated, "I can't say that here

.... These are core andthe testimony bore that out." 3 

### RP at 270. Where documents requested in discovery are this important, greater diligence is required to establish a reasonable search. The trial court explained why it did not believe that

### Mr. Trujillo's two requests to Ms. Meacham between taking overrepresentation in 2009 and the 2013 commencement oftrial were a reasonable inquiry for critical evidence: Mr. Trujillo's failure to renew his request for Ms. Meacham to search her files for the photographs between November 2010 and September 15,2013, was an unreasonable omission.

. .. [W]hen Ms. Meacham finally did conduct a diligent search upon Mr. Trujillo's request she was able to find the photographs, and ifshe had beenpressed to diligently search for the photographs during 2011, 2012 and/or the early months of2013, it stands to reason that the photographs would have been disclosed to defense counsel well in advance oftrial. CP at 157.

16No. 32165-7-III Johnson Bros. 

### v. Blevins

To demonstrate an abuse ofdiscretion, Johnson Brothers must showthat "'no reasonablejudgewould have reached the same conclusion.'" State v. Johnson, 124 Wn.2d 57,76,873 P.2d 514 (1994) (internal quotation marks omitted) (quoting State 

### v. Hopson, 113 Wn.2d 273,284,778 P.2d 1014 (1989)). Ithas not made that showing. A reasonablejudgecould conclude that a more diligent search was required by these circumstances. II. Appropriatesanction Johnson Brothers next argues that the trial court abused its discretion in its selection ofa remedy, contending that "[t]he drastic remedy ofa mistrial is only to be used as a lastresort ... and only when nothing less than a new trial canremedy the situation." Appellant's Opening Br. at40. It submitsthatthe remedy ofa mistrial "is all but unheard ofin a civil bench trial." Id. Itargues that monetary sanctions "served no purpose and were completely unwarranted because there was no violation inthe first place." 

### Id. at 48. "Ifa violation ofCR26 is found, the imposition ofsanctions is mandatory." Carlson, 116 Wn. App. at 737. "When imposing a sanction, the court must considerthe least severe sanction that will accomplish the purpose to be servedby the imposition of the sanction-but notbe so minimal that it undermines thepurpose ofdiscovery." 

### Id. "Thepurpose ofthe sanction is to deter, punish, compensate, educate, and ensure that the

17No. 32165-7-II1 Johnson Bros. v. Blevins wrongdoer does not profit from the discovery violation." Id. (citing Fisons, 122 Wn.2d at 355-56). In imposing one ofthe greater sanctions, the record must clearly show "(1) one party willfully or deliberately violated the discovery rules and orders, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed." Barton v. Dep 't of Transp., 178 Wn.2d 193,215,308P.3d 597 (2013) (citingMagana v. HyundaiMotor Am., 167 Wn.2d 570, 584,220P.3d 191 (2009)). Here again, "a 'willful violation means
a violation without a reasonable excuse.'" Carlson, 116 Wn. App. at 737 (internal quotation marks omitted) (quoting Foster, 55 Wn. App. at 548). The trial court found substantial prejudice and explicitly considered the lesser sanction ofa continuance. Johnson Brothers discounts Black Rock's claimthat it was prejudiced because it invested two trial days advancing a theory ofdefense that was underminedby the photographs, butthe trial court agreed that BlackRock's defense was badly damaged. The court disclosed its perception ofBlack Rock's case in announcing its ruling on the CR26(g) motion: The defendant prepared its defense upon two primary theories. One, that Mr. Ames was nowhere to be found and the defense was relying on his absence to proceed to trial on the assumption that the plaintiffwould find it difficult to tie his clients to the use ofthe machinery in question. And two, that there was no photographic evidence ofdamages to the machinery and witnesses' testimony to date was inconsistent with the scope and extent of the money damages sought at trial. And that the machinery had been 18No. 32165-7-III Johnson Bros. v. Blevins
removed from the site preventing the defendants at the time from taking their own photographs orrecording the scope and extent ofthe damages that had alleged to have occurred. As [defense counsel] points out, they were laying a foundation for spoliation arguments and in opening, [defense counsel] talked about the gaps in the evidence, specifically the pictures

.... The Plaintiffs witnesses testified as anticipated by the defense regarding damages. What I mean by that is that their memory was that they were-the damages were limited in nature and that they had little memory ofthe specific damage orthe types ofdamage that they sought. 3 RP at 266-67. Fromthe court'sperspective, which is key, this presented "a situation that's prejudicial to the defendants": [Defense counsel] has prepared for and premised his client's defense in large part on the representation thatphotographic evidence ofdamages did not exist, and argued and cross-examined witnesses on specifically their memory and the scope and extent oftheir memory ofthe fact ofdamage, what the damage mayormay not have been and where it mayormay not have been repaired. 3 RP at 270. In reviewing its options, the trial court addressed Johnson Brothers' request for a less severe sanction: thatthe court order a continuance so that Black Rock could prepare to defend againstthe new evidence. Consistent with its earlier observations, it explained that granting a continuance does notreverse the prejudice to the defendants. Itwould not accomplish the purpose ofthe rule. The Defendants have come to courtpremised on the defenses that Ihave mentioned. They were surprised by [defendant] Ames' appearance and testimony and they modified their defense to deal 19No. 32165-7-III Johnson Bros. v. Blevins
with his presence, which was unexpected. Nowthey are asked to modify their defense with the existence ofthe pictures butthey have laid a record through cross-examination and argument, which in my opinion can'tbe reversed. 3 RP at 

### 271.2 We apply the abuse ofdiscretion standard to sanctions imposed under CR26(g) because it "recognizes that deference is owed to thejudicial actor who is 'better positioned than another to decide the issue in question.'" Fisons, 122 Wn.2d at 339 (internal quotation mark omitted) (quoting Cooter & Gel! v. Hartmarx Corp., 496 

### U.S. 384,403,110 S. Ct. 2447,110L. Ed. 2d 359 (1990)). Johnson Brothers fails to demonstrate thatthe trial court abused its discretion in finding a violation without a reasonable excuse and substantial prejudice, and in considering, butrejecting, a less

severe sanction. Johnson Brothers challenges the trial court's sanction ofawarding trial fees and costs on the solebasis thatthere was no CR26(g) violation and no sanction was

2 In fairness to Johnson Brothers, thetrial court also rejected Black Rock's preferred option that it exclude the photographs from evidence, explaining that [s]uppressingthe photographs wouldpotentially cure the prejudice that has befallen the defendants, but that outcome wouldbe draconian for the plaintiff. Ifthe photographs are excluded from evidence, that might preclude the plaintifffrom seeking its full measure ofdamages ifliability is established against one or more defendants. CP at 159. 20No. 32165-7-II1 Johnson Bros. 

### v. Blevins warranted, positions wehave already rejected. Once the court declared a mistrial, an award ofBlackRock's fees and costs incurred in the aborted trial was a logical corollary. In Mayer, 156 Wn.2d at 681, the plaintiffs sued the manufacturer ofa synthetic home insulatorproduct, claiming that their home was damaged by its use. Thejuryreturned a verdict for the defense. Id. Afterthe verdict, an attorney representing aplaintiffin a separate case sent the plaintiffs a copy ofamemorandum written by the defendant's technical services manager in which he admitted thatthe product was "inherently flawed." Id. Because the technical services managerhad testified to the contrary at the plaintiffs' trial, they moved for a new trial under CR59 on the grounds ofnewly discovered evidence. Id. at 682. The plaintiffs also sought discovery sanctions against the manufacturer under CR26(g). Id. The trial court granted the new trial and imposed sanctions against the manufacturerto compensate the plaintiffs for the first trial and first appeal. Id. Our Supreme Courtheld that "[t]hetrial court did not abuse its discretion in determining that the [plaintiffs] should be fully compensated for the money wasted on the first trial and for the loss ofuse ofthat sum for the period oftime described in thejudgment." Id. at 692. The same reasoning supports the trial court's award ofBlackRock's fees and costs wasted on the aborted trial.

21No. 32165-7-III Johnson Bros. v. Blevins Attorney fees on appeal Both parties request attorney fees on appeal. Johnson Brothers requests fees as costs under RCW 4.84.010 and RCW4.84.080 ifit is the prevailingparty on appeal, but it is not. Alternatively, it requests attorney fees under CR 11, claiming that BlackRock violated the rule by "mis-citing authority and needlessly caused the mistrial andthis appeal." Appellant's Opening Br. at 50. Assuming without deciding that CR 11 is a basis for attorney fees on appeal, we find no violation and deny the request. Black Rock requests fees and costs on appeal as a matter ofequity, as a discovery sanction, and under RCW 4.84.010 and RCW4.84.080. Br. ofResp'ts at 50. "[F]ees will not be awarded in the absence ofa contract, statute or recognized ground ofequity." ASARCOInc. v. Air Quality Coal., 92 Wn.2d 685, 715, 601 P.2d 501 (1979). Because BlackRock fails to provide any explanation or argument as to why it shouldbe awarded fees as a matter ofequity or as a discovery sanction, we decline its request for fees on those bases. Id. ("We are not informed why or under what applicable facts we should exercise these allegedpowers to grant attorneys' fees. Lacking this essential information, we will not grant the request."). As the substantially prevailing party on appeal, Black Rock is entitled to costs underRAP 14.2, but not on the statutory bases that it cites. Affirmed.

22No. 32165-7-II1 Johnson Bros. v. Blevins

A majority ofthe panel has determined this opinion will not beprinted in the .Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. 

# fid/LJwtto, G}-- Siddoway, C.J. 

# U WE CONCUR:

Brown, J.

23