COURT OF APPEALS DiV

STATE OF WASHINGTON

2013 APR 29 All S'^k

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

McKAY CHADWELL, PLLC, a

Respondent,

v.

JEREMY STAMPER, an unmarried

man; and

Defendant,

MEAGHAN McKAIGE and JOHN DOE

McKAIGE, wife and husband, and the

marital community comprised thereof,

Appellant.

NO. 68153-2-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: April 29, 2013

Lau, J. — Personal guarantors Meaghan and Andrew McKaige appeal the

summary judgment order and judgment entered in favor of the lawfirm of McKay

Chadwell PLLC for unpaid legal fees, costs, and interest. Because the trial court

properly exercised its discretion in declining to continuethe summaryjudgment hearing

and because the record presented to the court established no material fact issues, we

affirm the grant of summary judgment and the judgment in McKay's favor.
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FACTS

The material facts are undisputed. In 2007, Federal Savings LLC retained the

law firm of McKay Chadwell PLLC after Washington State and other authorities began

to investigate Federal Savings for securities fraud. Jeremy Stamper signed McKay's

fee agreement as Federal Savings' president. Stamper and his sister, Meaghan

McKaige each signed separate guarantee agreements personally guaranteeing

payments due under the fee agreement. In July 2010, after Federal Savings defaulted

on the fee agreement, McKay sued Stamper and McKaige on their personal guarantees

for unpaid legal fees, costs, and interest. McKay's complaint named "Jeremy Stamper,

an unmarried man; and Meaghan McKaige and John Doe McKaige, wife and husband,

and the marital community comprised thereof as defendants. McKaige's husband was

later identified by name as Andrew McKaige. The complaint alleged in part:

2.3 Defendant McKaige. Defendant Meaghan McKaige is believed and

alleged to be a married woman residing outside of the state of Washington.

Defendants Meaghan McKaige and John Doe McKaige are believed and alleged

to be husband and wife and constitute a marital community, and each act of

defendant Meaghan McKaige complained of herein was for the benefit of said

marital community.

The trial court entered a default judgment against Stamper for approximately $250,000

in unpaid fees, costs, and interest.

In June 2011, acting pro se, McKaige prepared and served McKay with

"Defendant's First Interrogatories and Requests for Production to Plaintiff McKay

Chadwell PLLC, a professional limited liability company." This discovery consisted of

12 interrogatories and 12 requests for production. At the same time, McKaige also

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prepared and served McKay with requests for admission consisting of 99 individual

requests. McKay answered most but not all the discovery requests.

About 14 months after filing suit, McKay moved for summary judgment against

Meaghan and Andrew McKaige (McKaige) to enforce their guarantee agreement. By

then, McKaige still had not filed an answer to the complaint. McKay's motion stated,

"Plaintiff McKay Chadwell, PLLC, requests the entry of summary judgment, and entry of

monetary judgment against defendant Meaghan McKaige and Andrew McKaige,

husband and wife, and their marital community thereof."1 The proposed summary

judgment order served on McKaige with the moving papers also sought judgment

against "Meaghan McKaige and Andrew McKaige, husband and wife, and their marital

community."

In July 2011, McKay requested dates from the trial court for a summary judgment

hearing. Upon receiving possible dates, McKay proposed September 30, 2011, to

McKaige. McKaige did not object. Twenty eight days before the hearing date, McKay

e-mailed and mailed to McKaige a note for motion, a copy of its motion, all supporting

documents, and a proposed order. The note indicated that a hearing with oral argument

was set for September 30, 2011, at 10a.m., in Seattle.

1Meaghan McKaige's declaration in supportof her reconsideration motion

acknowledged Andrew McKaige as "[m]y husband." And McKaige's unanswered and

unfiled summary judgment response refers to Andrew McKaige as "husband."

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Under CR 56(c), McKaige's last day to file and serve a response was

September 19, 2011.2 Four dayslater, McKay filed a declaration informing the trial

court that no response had been served or filed. Three days later, McKaige, acting pro

se, e-mailed McKay's attorney a document dated September 26, 2011, and entitled

"Defendant's Response to Plaintiff's Motion for Summary Judgment." Among other

things, the response asserted, "The amounts Plaintiff alleges are owed reflect services

by Plaintiff outside the limited scope of the Fee Agreement." The response raised no

challenge to McKay's assertion that McKaige comprised a marital community. McKaige

never filed the response with the clerk of the court or provided a working copy to the trial

court.

On September 28, 2011, two days before the hearing, McKay's attorney, Tyler

Moore, e-mailed McKaige a copy of McKay's reply and informed her that the hearing

time "is now 9:00 a.m." The summary judgment motion was scheduled to be heard on a

Friday. McKaige's attorney claims McKaige first learned about the time change from

10:00 a.m. to 9:00 a.m. on "the day before the hearing [Thursday] when she opened the

e-mail from plaintiffs attorney ...." As McKaige's e-mail quoted below indicates, she

actually learned about the schedule change on the Wednesday before the hearing, not

Thursday. McKaige offers no explanation as to why she delayed contacting Moore to

request a continuance until the morning of the summary judgment hearing under these

circumstances.

2Under CR 56(c) and King County SuperiorCourt Local Civil Rule 56, "The

adverse party may file and serve opposing affidavits, memoranda of law or other

documentation not later than 11 calendar days before the hearing." CR 56(c).

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On the day of the summary judgment hearing, at 8:13 a.m., Meaghan McKaige

notified Moore by e-mail that she was unable to make the flight from California and

requested a hearing continuance:

I am writing to request that the hearing on the motion for Summary Judgment be

rescheduled for a week from today. I was informed 36 hours ago that the

hearing was moved up to its new time and due to a sick child this morning, I was

unable to take an earlier flight to make it to the new hearing time. Please let me

know if it is possible to reschedule the hearing. As a single parent living out of

town and representing myself, I would appreciate this allowance.

Moore declined—"You have known about this hearing for 28 days, and your response

was 7 days late." A few minutes later, Moore received a call from attorney Douglas

Dunham, who said he had just been retained by McKaige.3 Dunham "advised Mr.

Moore that [he] was appearing and requested that [Moore] agree to a short continuance

of the Motion for Summary Judgment hearing to give [Dunham] time to review the case

and appropriately respond." Moore agreed to a two-week continuance as a professional

courtesy to Dunham. Moore telephoned and e-mailed court staff about the agreement,

but the court directed the parties to appear for the hearing.

At the hearing, the trial court advised Dunham that McKay's motion for summary

judgment was unopposed, since McKaige never filed a response.4 Dunham orally

3Meaghan McKaige's father is an attorney and is Dunham's former law partner.

He called Dunham, who agreed to appear for and represent McKaige at the summary

judgment hearing.

4We question whether the court's summaryjudgment ruling would be any

different even ifthe court considered McKaige's response and even if McKaige attended

the hearing or appeared by phone because, among other deficiencies, her written

response containing factual assertions and bare arguments was unsworn. McKaige

submitted no supporting declarations, affidavits, or documents. See Wilkerson v.

Weqner, 58 Wn. App. 404, 408 n.3, 793 P.2d 983 (1990) ("The certifications considered

by the trial court were not signed under penalty of perjury nor were they sworn

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moved for a continuance, arguing he needed more time to prepare. The record

contains no evidence that Dunham made any substantive arguments opposing McKay's

motion for summary judgment. Nor does the record show that he requested the court to

allow his client to appear by telephone.

The trial court denied the continuance request, granted summary judgment, and

entered judgment for $290,847.50 against "defendants Meaghan McKaige and Andrew

McKaige, husband and wife, and the marital community thereof." The court clerk's

minute entry from the summary judgment hearing indicates:

Plaintiffs Motion for Summary Judgment.

The Court informs respective counsel that it would treat the motion as an

unopposed motion, there being no response from the Defendant.

Defendant moves for a continuance of the hearing.

The Court denies Defendant's motion for continuance and grants Plaintiffs

motion.

Order on Summary Judgment is signed and filed.

After the hearing, McKaige moved for reconsideration under CR 59 and for a

continuance under CR 56(f). The court later explained its rationale for denying the

continuance request in an order striking certain declarations. The court's handwritten

comments indicate:

The Court adds the following observations:

1. Defendant McKaige, who was on notice of the summary judgment

motion, never filed with the court or provided to the assigned judge or [original]

judge any response to the motion. It was in fact unopposed under the court

rules.

2. CR 56(f) requires a continuance of a summary judgment to be

requested by way of an affidavit, which explains how the continuance will permit

facts relevant to the motion to be provided. No such affidavit was provided, and

defendant McKaige's just-retained counsel could not tell the court what such an

affidavit would say ifthere had been time to prepare it.

statements. While not raised by the parties, we do not consider such 'certifications' to

be competent proof in a summary judgment proceeding. RCW 9A.72.085.").

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3. These failures to follow court rules cannot be excused by defendant

McKaige's pro se status, which was voluntary. Nor does her pro se status

warrant an exception from clear court rules which are applied to every other

litigant. The Court adheres to its denial of what was in fact a last-minute request

to continue a properly noted, unopposed motion by way of a verbal request from

just retained counsel without any supporting declaration or affidavit as CR 56(f)

requires.

McKaige appeals.

ANALYSIS

The dispositive question is whether the trial court abused its discretion when it

denied McKaige's oral motion to continue the summary judgment hearing premised on

her attorney's need for "time to review and respond." McKaige contends that the trial

court erred in denying her attorney's oral request for a continuance of the summary

judgment hearing and in granting summary judgment to McKay. McKay responds that

the court properly exercised its discretion under the circumstances when it denied the

continuance request.

Civil Rule 56(f) allows the trial court to continue a summary judgment hearing "if

the nonmoving party shows a need for additional time to obtain additional affidavits,

take depositions, or conduct discovery."5 Building Indus. Ass'n ofWash, v. McCarthy,

152 Wn. App. 720, 742, 218 P.3d 196 (2009). Whether or not the party files a CR 56(f)

affidavit, we review the trial court's decision for manifest abuse of discretion. MacKay v.

MacKav. 55 Wn.2d 344, 348, 347 P.2d 1062 (1959): see also State ex rel. Citizens

Against Tolls (CAT) v. Murphy. 151 Wn.2d 226, 237 n.4, 88 P.3d 375 (2004). "A trial

5CR56(f) states, "Should it appear from the affidavits of a party opposing the

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

his opposition, the court may refuse the application for judgment or may order a

continuance to permit affidavits to be obtained or depositions to be taken or discovery to

be had or may make such other order as is just."

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court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or untenable reasons." In re Marriage of Littlefield. 133 Wn.2d 39,

46-47, 940 P.2d 1362 (1997). Littlefield explained:

A court's decision is manifestly unreasonable if it is outside the range of

acceptable choices, given the facts and the applicable legal standard; it is based

on untenable grounds ifthe factual findings are unsupported by the record; it is

based on untenable reasons if it is based on an incorrect standard or the facts do

not meet the requirements of the correct standard.

Littlefield. 133 Wn.2d at 47.

In the context of a CR 56(f) continuance request, the trial court does not abuse

its discretion if "(1) the requesting party does not offer a good reason for the delay in

obtaining the desired evidence; (2) the requesting party does not state what evidence

would be established through the additional discovery; or (3) the desired evidence will

not raise a genuine issue of material fact." Turnery. Kohler, 54 Wn. App. 688, 693, 775

P.2d 474 (1989).

Dunham e-filed a notice of appearance the same morning he appeared for the

summary judgment hearing. At the hearing, the trial court advised Dunham that his

client failed to file a response, and that it would treat McKay's motion as unopposed.6

Dunham orally moved to continue the hearing. He explained that his client only recently

learned that the hearing time had been moved up an hour, and that she was unable to

get an earlier flight. He also reminded the court about the parties' agreed two-week

6We assume no hearing transcript is available because the hearing was not

recorded or transcribed.

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continuance.7 Unable to accommodate this time frame due to calendar congestion, the

trial court offered its next available date—November 23, 2011. McKay's attorney

objected to this two-month delay. Declining to schedule the November date over

objection, the court granted the summary judgment motion based on McKay's summary

judgment submissions.

McKaige relies on Coggle v. Snow, 56 Wn. App. 499, 784 P.2d 554 (1990), and

Butler v. Joy, 116 Wn. App. 291, 65 P.3d 671 (2003), to argue that the trial court abused

its discretion in declining to continue the summary judgment hearing. Both cases are

distinguishable. In Coggle, a medical negligence plaintiffrequested a continuance of

the summary judgment hearing premised on his former attorney's imminent retirement

and his need to conduct discovery necessary to defeat summary judgment. The new

attorney appeared one week after the defendant filed its summary judgment motion.

The new attorney promptly filed a CR 56(f) affidavit identifying the additional discovery

he wished to pursue and explaining how the desired evidence would rebut a key

witness's testimony. Coggle. 56 Wn. App. at 502-03. Because the new attorney

complied with CR 56(f) procedures and because we thought it was unfair to punish the

client for his former attorney's "apparently dilatory conduct," we held that the court

abused its discretion in denying the request for a continuance. Coggle, 56 Wn. App. at

508.

In Butler, the trial court denied plaintiffs newly retained counsel's oral motion for

a continuance of the summary judgment hearing. The new attorney was retained the

7McKaige cites no authority (and we found none) that compels a trial court to

accept the parties' stipulated continuance.

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day before the hearing. He prepared no written affidavits to support the continuance

and presented the motion orally. The hearing was not recorded, so the record

contained no indication whether the new attorney argued that he needed more time to

obtain discovery or what further evidence he expected to produce. The court held that

the trial court abused its discretion "[b]ecause we cannot find a tenable ground for the

trial court's decision "8 Butler, 116Wn. App. at 300.

Unlike in Coggle and Butler, McKaige (1) chose to represent herself for 14

months until the summary judgment hearing, (2) prepared and served extensive

interrogatories and requests for admission, (3) prepared a written summary judgment

response that she never filed with the court or provided to the hearing judge as

discussed above, (4) never argued she needed a CR 56(f) continuance to obtain

discovery necessary to prepare a summary judgment response, and (5) offered no

explanation for why she failed to retain counsel earlier in the litigation.9 In addition, the

trial court offered to continue the hearing to its next available date.

In Coggle, we noted, "The ruling on the motions for a continuance and for

reconsideration is within the discretion of the trial court and is reversible by an appellate

court only for a manifest abuse of discretion." Coggle, 56 Wn. App. at 504. Noting that

this simple standard was in disarray, we discussed relevant Washington case law and

8The force of the court's holding is questionable given its comment that its

discussion of the motion for continuance was "unnecessary to our disposition of this

appeal " Butler, 116 Wn. App. at 298. We also note the opinion does not disclose

the trial court's rationale for denying the continuance motion.

9The record shows McKaige received the summary judgment motion and

supporting materials at least 28 days before the hearing. She fails to explain her delay

in contacting Moore about a continuance when she learned about the time change.

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authoritative sources to determine the standard by which a trial court properly exercises

its discretion. We held, "The proper standard is whether discretion is exercised on

untenable grounds or for untenable reasons, considering the purposes of the trial court's

discretion."10 Coggle, 56Wn. App. at 507.

The present case is more similar to Bonneville v. Pierce County. 148 Wn. App.

500, 202 P.3d 309 (2008). There, Division Two of this court held that denial of a motion

to continue a summary judgment hearing in order to allow a permit holder's new

attorney opportunity "to prepare for the hearing" was not an abuse of discretion.

Bonneville, 148 Wn. App. at 507. Bonneville had ample time to retain counsel before

the summary judgment hearing. He failed to request a second continuance immediately

after the first continuance expired. He offered no explanation for retaining an attorney

the day before the hearing, and the trial court "believed he was simply delaying the

case." Bonneville, 148 Wn. App. at 507.

In her reply brief, McKaige also argues that "pro se defendants should be treated

differently in some instances than pro se plaintiffs .. . [because] [p]ro se plaintiffs bring

their claims to court voluntarily where pro se defendants most often are before the court

involuntarily and are forced to represent themselves by their financial circumstances."

Appellants' Reply Br. at 10. She cites no controlling authority for this position. As a pro

se litigant, McKaige was not entitled to "special favors" from the court. In re Marriage of

Olson. 69 Wn. App. 621, 626, 850 P.2d 527 (1993). Pro se litigants are "bound by the

same rules of procedure and substantive law as attorneys." Westberg v. Ail-Purpose

10 To the extent that McKaige attempts to broaden thiswell-settled rule by

arguing "justice" is an essential consideration, we adhere to Coggle's core holding

stated above.

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Structures Inc., 86 Wn. App. 405, 411, 936 P.2d 1175(1997). Given the extensive

undisputed record discussed above, the trial court's decision to deny a continuance was

within the range of acceptable choices. We conclude the trial court properly exercised

its discretion under the circumstances here.11

Summary Judgment Order

McKaige also contends that the trial court erred in finding that McKay met its

initial burden under CR 56(c) to show the absence of a genuine issue of material fact.

Appellants' Opening Br. at 22. Specifically, she argues that McKay's own summary

judgment materials raise a genuine issue as to whether it billed Federal Savings for

work outside the scope of the fee agreement. She also argues that McKay "failed its

initial burden to prove that Andrew and Meaghan McKaige's marital community existed,

or had any obligation on the Guarantee." Appellants' Opening Br. at 30. Finally, she

argues that McKay violated CR 56(c) by serving its summary judgment motion fewer

than 28 calendar days before the hearing.12 Appellants' Opening Br. at 30.

Under RAP 9.12, our review of an order granting summary judgment is limited to

the "evidence and issues called to the attention of the trial court." Thus, "[a]n argument

11 McKaige devotes the majority of her briefing to the merits ofthe summary

judgment motion. Given our resolution of the continuance issue, we need not address

his remaining contentions about the summary judgment's merit, except as necessary.

12 Forthe first time on appeal, McKaige argues she was "misled" by the change

in the summary judgment hearing time from 10 a.m. to 9 a.m. Appellants' Opening Br.

at 19. Generally, we do not consider arguments raised for the first time on appeal.

RAP 2.5(a) (appellate court need not consider a claim raised for the first time on appeal

unless it involves "lack of trial court jurisdiction," "failure to establish facts upon which

relief can be granted," or "manifest error affecting a constitutional right"). And in any

event, McKaige neither cites the record to support this allegation nor cites authority

explaining why her reliance on McKay's erroneous representations regarding the

hearing time and judge constituted a trial court error.

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neither pleaded nor argued to the trial court cannot be raised for the first time on

appeal." Silverhawk, LLC v. KeyBank Nat. Ass'n, 165 Wn. App. 258, 265, 268 P.3d 958

(2011); see, e^, Cano-Garcia v. King County, 168 Wn. App. 223, 248, 277 P.3d 34

(2012) (issue not properly preserved where proponent neither raised it in his response

nor argued it at the summary judgment hearing). To allow otherwise "would be to

undermine the rule that an appellate court is to engage in the same inquiry as the trial

court in reviewing an order of summary judgment." Wash. Fed'n of State Emps.,

Council 28, 121 Wn.2d 152, 163, 849 P.2d 1201 (1993).

Given these principles, "[i]t is our task to review a ruling on a motion for summary

judgment based on the precise record considered by the trial court." Jacob's Meadow

Owners Ass'n v. Plateau 44 II. LLC. 139 Wn. App. 743, 754-55, 162 P.3d 1153(2007).

That record includes those documents designated in an order granting summary

judgment. RAP 9.12. The order on summary judgment shows the trial court considered

"Plaintiffs Motion for Summary Judgment and supporting declaration; Defendant's

having failed to respond . . . ." Because the trial court considered only McKay's

submissions, McKaige's present challenges were never "called to the attention of the

trial court." RAP 9.12. The sole issue McKaige brought to the trial court's attention was

her request for a continuance. Therefore, under RAP 9.12, her challenges regarding

the scope of the fee agreement, McKay's compliance with CR 56(c), and the trial court's

imposition ofcommunity liability are waived on appeal.13

13 Even assuming no preservation issue, our de novo review of McKay's

summary judgment materials does not indicate material issues of fact exist. And we

find no merit in McKaige's CR 56(c) claim because the evidence shows McKaige

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We also reject McKaige's challenge to the imposition of community liability

premised on McKaige's failure to overcome the presumption that her signature on the

personal guarantee bound her marital community. "A guaranty obligation of one spouse

creates a presumption of community liability." Grayson v. Platis. 95 Wn. App. 824, 836,

978 P.2d 1105 (1999). Additionally, "[t]he suretyship debt or obligation of one of the

spouses obligates the community property only ifthe community is benefited by the

obligation." Warren v. Wash. Trust Bank. 19 Wn. App. 348, 360, 575 P.2d 1077 (1978).

As the party seeking to avoid the guarantee, the burden rested on McKaige to rebut that

presumption with clear and convincing evidence. Grayson, 95 Wn. App. at 836.

McKaige did not carry this burden.14

Motion for Reconsideration15

"Motions for reconsideration are addressed to the sound discretion of the trial

court; a reviewing court will not reverse a trial court's ruling absent a showing of

manifest abuse of that discretion." Wagner Dev., Inc. v. Fidelity & Deposit Co. of

Maryland, 95 Wn. App. 896, 906, 977 P.2d 639 (1999).

McKaige's opening brief assigns error to the trial court order denying her

reconsideration motion. Aside from citing the standard of review, her opening brief

devotes two sentences challenging the reconsideration order:

suffered no prejudice from the alleged tardy summary judgment motion. She conducted

discovery and prepared a summary judgment response.

14 Nor could McKaige satisfythis burden because the record shows she does not

dispute that she was married to Andrew McKaige when she signed the guarantee.

15 McKaige failed to identify the specific fact and law as to each ground on which

her reconsideration motion is based. She merely cites to CR 59.

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The trial court also refused to consider the declarations of Meaghan

McKaige and Andrew McKaige by granting plaintiff s motion to strike them. It

also denied Defendant's Motion for Continuance pursuant to CR 56(f). In

Coggle, this Court found that "after failing to grant the continuance" the failure to

consider declarations filed pursuant to a Motion for Reconsideration "was an

abuse of discretion flowing from the court's initial denial of the motion for

continuance." Coggle. [56 Wn. App.] at 508-09.

Appellants' Opening Br. at 21-22 (citations omitted). Because the trial court properly

denied McKaige's motion to continue the summary judgment hearing, she was not

entitled to present new evidence in a reconsideration motion that she could have

discovered and presented at summary judgment. CR 59(a)(4); Wagner Dev., 95 Wn.

App. at 906. "Ifthe evidence was available but not offered until after that opportunity

passes, the parties are not entitled to another opportunity to submit that evidence."

Wagner, 95 Wn. App at 907. We conclude that the trial court properly denied the

reconsideration motion.

Attorney Fees on Appeal

McKaige and McKay both request attorney fees on appeal under RAP 18.1(a),

which authorizes an award where "applicable law grants to a party the right to recover

reasonable attorney fees or expenses on review . ..." As "applicable law," the parties

cite the fee agreement between McKay and Federal Savings. The fee agreement

provides, "The Firm shall also be entitled to recover from the Client all fees, including

interest and costs of collection, including reasonable attorneys' fees and costs of

appeal." McKaige never signed the fee agreement. Although she signed the

guarantee, the guarantee and the fee agreement are separate contracts. Robev v.

Walton Lumber Co., 17 Wn.2d 242, 255, 135 P.2d 95 (1943): Freestone Capital

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Partners LP v. MKA Real Estate Opportunity Fund I LLC. 155 Wn. App. 643, 661, 230

P.3d 625 (2010).

Because McKaige signed only the guarantee and because the guarantee does

not explicitly authorize attorney fees, the guarantee does not provide a basis for

attorney fees under RAP 18.1. Cf. Puyallup Valley Bank v. Mosby, 44 Wn. App. 285,

290, 723 P.2d 2 (1986) (awarding attorney fees under RAP18.1 where "guaranty

agreement specifically authorizefdl attorneys fees in case of litigation") (emphasis

added). We deny the parties' respective attorney fee requests.

CONCLUSION

For the reasons stated above, we affirm the trial court's grant of summary

judgment and judgment in favor of McKay.

WE CONCUR:

SkQ^wgo,.

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