### FILED MARCH 18, 2014 In the Office ofthe ClerkofCourt WA StateCourt ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE DISCOVERBANK, ISSUEROF THE ) DISCOVERCARD, ) No. 31080-9-111 ) Appellant, ) ) 

### v. ) ) PUBLISHED OPINION MAURIE L. LEMLEY and DOE I, and their ) marital community composedthereof, ) ) Respondents. ) FEARING, J.

- Discover Bank filed suitagainstMaurie and LindaLemley, husband and wife, for failing topay a credit card debt. The trial court granted the Lemleys' summaryjudgmentmotion, ruling that DiscoverBank failed topresent admissible evidence establishing the Lemleys entered into a contract, letalone owedthe bankthe alleged $5,729.28. DiscoverBankappealsthe summaryjudgment order. The principal issue raised by theparties on appeal concerns the qualifications needed by an affiant on behalfofa major credit card company to identify the controlling contractwith the debtor and establish the amounts owed, in response to a summaryjudgmentmotion. Wedonot address this issue, but instead remandthe case to the trial court for another summaryjudgmenthearing. Atthe newhearing, the court should considerthe affidavitsNo. 31080-9-III DiscoverBank

### v. Lemley
despite their notbeing labeled in opposition to the Lemleys' summaryjudgmentmotion, unless they are inadmissible or should be stricken, in whole or in part, on other grounds. FACTSANDPRODECURE This outline offacts chronologically follows events during this lawsuit. Some of the underlying facts will emerge when identifying and outlining affidavits filed in support ofand in opposition to summaryjudgment motions. On December 16,2010,Discover Bank filed suit alleging Maurie and Linda Lemley failed to pay a debt they accrued on their Discover Card. The Lemleys, unrepresented by counsel, responded on January 18, 2011. The response read, in part: They have double[d] what I borrowed and now [are] asking for 12% interest. I do not think this is fair. I realize I asked for this credit card. But due to circumstances beyond my control. First the plant I worked for for 10 years closed and both myselfand my wife lost ourjobs. Our house was au[c]tioned offby the bank. We [went] home one night and the locks were changed. Then I find outthat the fire I was in, the bloodthe[y] used to keep me alive, had Hep C in it and was now years after causing me Pain and exhaustion to a point I can no longer work. I am applying for SSD and have been denied and on reconsideration at the moment. After letting them know what was going on, they started calling[.] I told them again what was happening. [N]ext week they called again asking me ifI could borrow the money from a relative, was there anyway I could get the money. I told them I could not and I was applying for SSD. Next week same thing they would call asking why I was not makingpayments could I borrow money to pay them. If I did not answer the phone they would call my wife and I 2 to 3 times aday each sometimes I would answer and they would hang up. Clerk's Papers (CP) at 10. Counsel later appeared for the Lemleys. 2No. 31080-9-111 DiscoverBankv. Lemley

On July 28,2011, DiscoverBankmoved for summaryjudgment. In support ofits motion, Discover submitted an affidavit ofPatrick Sayers, account manager for DB Servicing Corporation. In the affidavit, Sayers described his qualifications as follows: I am an account manager in the Attorney Placement Department for DB Servicing Corporation, the servicing affiliate ofDISCOVER BANK, ISSUER OF THE DISCOVER CARD, an FDIC insured Delaware State Bank collectively ("Discover"). I am responsible for managing and overseeing the Discover accounts that have resulted in contested litigation. Includedwithin the scope ofmy responsibilities includes the performance ofcollection and recovery services. I make this affidavit on the basis ofmypersonal knowledge and a review of the records maintained by Discover with respect to the account at issue. All such records are maintained in the regular course ofbusiness at or near the time ofthe events recorded. I am a Designated Agent and a Custodian ofthe records. CP at 15. In his affidavit, Patrick Sayers testified: On or about October 01, 2006 Defendant opened a Discover Credit Card. Attached hereto is true and correct copies ofthe Cardmember Agreement and Application which governthe credit card account at issue, along with periodic statements and evidence of payments on the account. No payments have been made since February 24,2010, and Defendanthas defaulted under the terms ofthe CardmemberAgreementby failing to make the payments due as required by the agreement. Atthe time that the suit was commenced, the principal balance on the account was $5,729.78. CP at 16. The affidavit was signed in New Albany, Ohio. Contrary to the affidavit, Sayers did not attach any application.

3No. 31080-9-III DiscoverBankv. Lemley

The first page attached to Patrick Sayers' affidavit is a DiscoverFinancial Services "TM SALE DETAIL REPORT." CP at 17. Sayers' affidavit does not identify orexplain the nature or content ofthe report. The report may attempt to document a call, on September 27,2006, from Maurie Lemley, during which he requested a Discover card. The next 14 pages attached to Sayers' affidavit is a Discover account cardmember account agreement. A date printed on the bottom right-hand comer ofeachpage ofthe agreement is December 15,2009, i.e., three years after which Discover contends Maurie Lemley opened an account and two years after which Lemley made his lastpurchase by a charge on the card. Curiously, the comer also includes the time of 1:37 p.m., which may suggest the date andtime is the date ofprinting the document from a computer, but such date precedes the lawsuit by more than one year. Eachpage also includes a "second" designation, with the first page starting at 1:37:03 p.m., the last page ending at 1:37:07 p.m., and interveningpages progressing periodically with the second. The attached

.agreement is copyrighted in the year 2010, by DiscoverBank, Member FDIC. Maurie

Lemley did not sign the cardmember agreement, nor did any person on behalfof DiscoverBank sign the agreement. The first page ofthe Discover account cardmember account agreement reads, in part: Please read this Agreement carefully before using your Discover® Card Account. Itcontains the terms and conditions ofyour Account, some ofwhich may have changed from earlier materials provided to 4No. 31080-9-III DiscoverBank

### v. Lemley

you. In the event ofany differences, this Agreement shall control. CP at 19. Sixty-three pages ofcredit card account statements, beginning in November 2006 and ending in August 2010, follow the cardmember agreement as attachments to Patrick Sayers' affidavit. The statements disclose credittactics employed by Discover Card to maximize revenue and personal details ofMaurie Lemley's life. Ofcourse, the truth of the information contained on the statements is subjectto a determination ofwhether Patrick Sayers could properly identify the statements. The Lemleys conducted discovery to discover Discover Bank's evidence. In response to a request to produce all records concerning the Lemleys, the bank disclosed only the documents it produced for its initial motion for summaryjudgment. The bank issued a blanket response to each interrogatory: Plaintiffresponds to this request for production by providing the attached, relevant, non-privilegeddocuments in itspossession, custody and/or control. Plaintiffreserves the rightto amend this response by providing additional relevant, non-privileged documents, ifany, as they come into its possession, custody and/or control, ifat all. CP at 548 (emphasis added). The Lemleys deemed Discover Bank'sresponses deficient and counsel held a telephonic conference as required by CR 26(i). During the conference, which was recorded, the Lemleys' counsel askedbank counsel, "You've done a reasonable

... effort to respond to these [requests for production], correct?" CP at 891. Counsel responded, 5No.31080-9-III DiscoverBank

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"Right, yes." CP at 891. Continuing his line ofquestioning, the Lemleys' counsel asked, "Atthis time are you planning to produce any further documents?" CP at 898. Discover Bank counsel replied, "No, I'mnotplanning to produce any further documents." CP at 898. The suit's deadline for discovery was May 21, 2012. Based on Discover Bank's representation during the discovery conference, the Lemleys again moved for summaryjudgment on May 17,2012, and scheduled the motion hearing for June 15. They argued that Discover Bank still failed to provide admissible, competent evidence establishing a contract, much less the terms ofa contract. On May 24, DiscoverBank filed its own second motion for summaryjudgment. The deadline for hearing dispositive motions was June 25. Summaryjudgmentmotions

are heard in Spokane County Superior Court on Fridays, andthe only Friday that complied with the deadline and afforded sufficient notice to the Lemleys was June 22. Thejudge assigned to hear the case was not available on June 22, so Discover Bank filed

a motionto shorten time and to permit its- summaryjudgment motion to beheard on June 20, at a time when a hearing was already scheduled in the suit for another motion. The record suggests that the motion for an order shortening time was also scheduled for June 20 and that the motion was never heard, since the trial court granted the Lemleys' summaryjudgmenton June 15. James Ball signed an affidavit in support ofDiscover Bank's renewed motion. Ball's affidavit reads, in part: 6

### No. 31080-9-III DiscoverBank

### v. Lemley



### 1. I am over the age of 18 years and I am competent to testifY regarding the matters in this affidavit. I make this affidavit in the basis ofmy personal knowledge and a review ofthe files and records maintained by Discover with respect to the account at issue. 2. I am the Team Leader for the Legal Placement Department for DB Servicing Corporation, the servicing affiliate ofDiscover Bank, an FDIC Insured Delaware State Bank. I am authorized to make this Affidavit on behalfofDB Servicing Corporation, as servicing affiliate ofDiscover Bank, and have reviewed the records with respect to the account at issue. 4. As a TeamLeader for the Legal Placement Department for DB Servicing Corporation, I manage employees who approve and maintain accounts placedwith our attorney network in order to enterjudgment on behalfofDiscover Bank. I am familiar withthe manner and methods by which Discover Bank and DB Servicing Corporation create and maintain their business records, including computer records ofaccounts such as records ofactivities, charges and payments. All such records were made at or near the time ofthe events recorded and were made and kept in the ordinary course ofthe business ofDiscover by individuals having knowledge ofthe information reflected therein. I am a custodian ofthose records and have access to the records, and can attest as to the identity and authenticity ofthe records and their mode ofpreparation. 5. The account at issue was opened by telephone on October 1, 2006 at the request ofMr. 

### Lemley. The original terms and conditions of the Discover Card Account were sent by mail to Mr. 

### Lemley along with the credit card. A true and correct copy oftheApplication and original CardmemberAgreement is attached hereto as Exhibits 1 and 2. The CardmemberAgreementprovided in part that: CHANGES TO THIS AGREEMENT We may change any term or part of this Agreement, including, but not limited to, any finance charge rate, fee or method of computing any balance upon which the finance charge rate is assessed, or add any new term or part to this Agreement. Ifrequired by law, we will send you a notice at least 15 days before the change is to become effective

..We may apply any such change to the outstanding balance of your Account on the effective date ofthe change and to new charges made after that date. You may be offered the opportunity to reject some ofthe changes, and ifyou do, you 7No. 31080-9-III DiscoverBankv. Lemley

must notify us in writing within 15 days after the mailing of the notice ofthe change at the address provided in the notice ofchange, in which case yourAccount will be closed and you must pay us the balance that you owe us under the existing terms ofthe unchanged Agreement. Otherwise, you will have agreed to the changes in the notice. Use of your Account after the effective date ofchange will be deemed acceptance of the new terms as of such effective date, even if you previously notified us that you did not agree to the change. We may also change any term of any product, service, or benefit offered in connection with your Account. We will notify you as required by law or by the terms ofthe product, service, orbenefit. 6. The original Cardmember Agreement was thereafter modified from time to time. Exhibit 3 shows the date the modified terms were sent to Mr. Lemley. The last modification to the terms was sent to Mr. Lemley on August 24, 2009. A copy ofthe applicable terms which were sent on August 24,2009 is attached hereto as Exhibit 4. CP at 317-19. James Ball attached to his affidavit the same "TM SALE DETAIL REPORT" attached to Patrick Sayers' affidavit. CP at 321. The cardmember agreement attached to Ball's affidavit, as Exhibit 1, does not have a date in the bottom right-hand corner and contains a copyright of2006. Thus, the agreement attached to the Ball affidavit differs from the cardmember agreement attached to the earlier Sayers' affidavit. The 2006 agreement is not signed by any party. The reader cannot tell by reviewing Exhibit 3 ifit confirms that changes in the cardmember agreement were mailed to Maurie Lemley. Joshua Smith signed the other fresh affidavit in support ofDiscoverBank's second summaryjudgment motion. Smith testified, in the affidavit, in part:

8No. 31080-9-111 DiscoverBank

### v. Lemley

1. I am overthe age of 18 years and I am competentto testify regardingthe matters inthis affidavit. I make this affidavit in the basis of mypersonal knowledge and a review ofthe files and records maintainedby Discoverwith respect to the account at issue. 2. I am an Account Manager for the Legal Placement Department for DB Servicing Corporation, the servicing affiliate of DiscoverBank, an FDIC Insured Delaware State Bank. I am authorized to make this Affidavit onbehalfofDB Servicing Corporation, as servicing affiliate ofDiscoverBank, andhave reviewed the records with respect to the account at issue. 3. Therecords produced withthis Affidavit are in the possession and control of, and were created and/ormaintained by DB Servicing Corporation. As an Account Manager for the Legal Placement Department for DB Servicing Corporation, I am responsible for managing and overseeing Discover accounts which have resulted in legal action. I am familiar with the manner and methods by which Discover Bank and DB Servicing Corporation create and maintain theirbusiness records, including computerrecords ofaccounts such as records ofactivities, charges and payments. All such records were made at ornearthe time ofthe events recorded and were made and kept inthe ordinary course ofthe business of Discoverby individuals having knowledge ofthe informationreflected therein. I am a custodian ofthose records and have access tothe records, and can attest as to the identity and authenticity ofthe records and their mode ofpreparation. 4. Attached hereto as ExhibitA are true and accurate copies of statements sentthe Lemleys from November 2006 to September 20IO. These statements ... are ofthe original transaction history and were reprinted for this litigation. Attached as ExhibitB are true and correct copies ofpayment stubs and checks from the Lemleys, making payment on theirDiscover account. CP at 366-67. Joshua Smith attached to his affidavit the same account statements attached to Patrick Sayers' affidavit. Smith attached to his affidavitmore checks andpayment coupons than attachedto the earlier summaryjudgmentbrief.

9No. 31080-9-III DiscoverBank

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NeitherJoshua Smith's nor James Ball's affidavit statedthey were filed in opposition to the Lemleys' second summaryjudgment motion. Nevertheless, the caption to DiscoverBank's memorandum opposingthe Lemleys' renewed summaryjudgment motion included the language, "AND IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT." CP at 354. The memorandum requested thatthe trial court considerthe affidavits, ofJames Ball and Joshua Smith in opposition to the Lemleys' motion. In addition to using the Ball and Smith affidavits, Discover Bank opposed the Lemleys' summaryjudgmentmotion by noting that the Lemleys, in their initial response to its complaint, stated they "realize[dthey] asked for this credit card." CP at 355. DiscoverBank also pointedto the Lemleys' use ofthe credit card and the cancelled checks as evidence that they contracted with the bank. The Lemleys objected to DiscoverBank's motion for a summaryjudgment hearing on shortenedtime, on the twin grounds that the bank should not waituntil near the deadline to file the motion and the bank based its motion on evidence notproduced during discovery. The Lemleys filed a separate objection to the affidavit ofJames Ball

on the ground that the affidavit attached documents Discover Bank failed to produce in discovery, including the additional cardmember agreement. In its memorandum in opposition to and in support ofits summaryjudgment motion, Discover Bankclaimed thatthe Lemleys never sought in discovery the original cardmember agreement attached 10No. 31080-9-III DiscoverBank

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to James Ball's affidavit, since the request for production sought signed agreements and the original agreement was not signed. The Lemleys did not seekto strike the affidavit of Joshua Smith. On June 15, the Spokane County Superior Court heard oral argument on the Lemleys' motion for summaryjudgment. Atthe beginning ofthe hearing, the Lemleys' counsel asked ifthe court intended to consider James Ball's affidavit. The court answered, "No, this is the defense motion." Report ofProceedings at 7. Later, Discover Bank's counsel asked the court to consider the Ball affidavit. The trial court affinned its earlierruling. Despite the court's ruling, Discover Bank's counsel, during its argument, referred to documents attached to the new affidavits. The Lemleys objected. The court sustainedthe objection. Thus, the court did not consider the affidavits ofJames Ball and Joshua Smith. In a later order denying Discover Bank's motion for reconsideration, the court said, "Plaintiffs [pleadings] were clearly designated for its own later scheduled and noticed hearing. Cross motions should be captioned as such and notedto be heard together to afford notice to court and parties as to the evidence to be considered." CP at 851. At the conclusion ofthe June 15 summaryjudgmenthearing, the court stated: The burdento [DiscoverBank] in summaryjudgment[,] whenthe motion is being brought by [defendants,] is to establish at least questions ofmaterial facts on their prima facie case. IINo. 31080-9-III DiscoverBankv. Lemley

As the court has reviewed the documents that have been provided since the original denial ofsummaryjudgment for [Discover], I have been looking for documentation in response to this motion to establish a prima facie case as to how that debt was identified, what the terms ofthat debt were, how they were defined, what are the material components ofthat contract. CP at 712. "Itdoes not," the court explained, "provide adequate evidence as a matter of law to computer generate a copy ofwhat might have been terms at a particularpoint in time without a connection between those terms and the party being sued on those terms." CP at 712. "Response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for triaL" CP at 713. In its written order, the trial court repeated its reasoning. The order reads thatthe affidavit and supporting documents Discover Bank submitted in "oppositionto [the Lemleys'] Motion for Summary Judgment and in support

## 0/ [Discover's} Motion/or SummaryJudgment do not contain the

...reliable foundation, pursuant to Court Rule 56(e), to establish that the Affianthad personal information about the alleged obligation in the amount of$5,729.78." CP at 718 (emphasis added). The bank's failure to provide competent evidence establishing an essential element ofits case-damages-entitledthe Lemleys to summaryjudgment. In a motion to reconsider, DiscoverBank contended the court erredwhen it refused to considerthe affidavits and exhibits filed in support ofits own motion for summaryjudgment. 

### In their response to the motion, the Lemleys argued that the court

12No. 31080-9-III DiscoverBank

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correctly excluded the filings because they were untimely under the court's scheduling order. In an order denying the motion to reconsider, the court stated it considered the bank's memorandumjointly offered in opposition to the Lemleys' motion and in support ofthe bank's motion. The court, however, refused to considerthe attachments to the memorandum because ofa lack ofauthentification. "Any other summaryjudgment pleadings," the court explained, "were clearly designated for [Discover's] own later scheduled

... noticed hearing." CP at 851. IfDiscover intendedthat motion as a cross motion, it "should be captioned as such and noted to be heard together to afford notice to court and parties as to the evidence to be considered." CP at 851. Based on CR 54(d)(2), RCW 4.84.250, .270, and .330, the court awarded the Lemleys attorney fees and costs.LAW AND ANALYSIS Discover Bank contends the trial court made three errors when granting the Lemleys summaryjudgment. First, the trial court erroneously ignored affidavits submitted in support ofDiscover's motion for summaryjudgment. Second, even without those additional pleadings, the affidavits submitted in opposition to the Lemleys' motion

were sufficientto establish an issue ofmaterial fact. Third, even ifall affidavits were properly excluded, the Lemleys' own admissions and conductraised a genuine issue of material fact ofwhether a debt is owed. We only address the first argument because we rule the court should not have ignored the affidavits ofJoshua Smith and James Ball on 13No.31080-9-III DiscoverBankv. Lemley

the basis that they were not labeled in their respective captions as being submitted in opposition to the Lemleys' motion. No decision directly addresses the facts and issues raised. We rely on a Ninth Circuit Court ofAppeals decision and two Washington decisions that indirectly address

our question, in addition to Washington's liberal policy ofapplying its civil rules. In FairHousing Council o/Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1134-35 (9th Cir. 2001), the federal courtprescribed the scope ofpleadings a district court must review to determine whether summaryjudgment is appropriate, under the circumstances when opposing parties file cross motions for summaryjudgment. The plaintiffs, unlike the defendant, did not file evidence in opposition to the defendant's motion for summaryjudgment. Instead, they "relied on the evidence that they had submitted in support oftheir motion for summaryjudgment." Id. The trial court granted the defendant's motion for summaryjudgmentbecause, in part, plaintiffs had not submitted any admissible evidence in opposition to the defendant's motion for summary judgment. Id. The Ninth Circuit reversed, holding "thatthe district court was required to review the evidence properly submitted in support of[plaintiffs'] motion to determine whether itpresented a disputed issue ofmaterial fact precluding summaryjudgmentin favor of[d]efendants." Id. The trial court must consider each party's evidentiary showing, regardless ofunder which motion the evidence was tendered. Id. Numerous United States District Courts within the Ninth Circuit Court ofAppeals have followed the 14No. 31080-9-III DiscoverBankv. Lemley
holding ofFair Housing. See Oakley, Inc. v. Nike, Inc., 2013 WL 6726782 at 3 (C.D. Cal. 2013); Conceptus, Inc. v. Hologic, Inc., 771 F. Supp. 2d 1164, 1174 (N.D. Cal. 2010); Zhangv. Napolitano, 663 F. Supp. 2d 913,918 (C.D. Cal. 2009); Wilson v. Costco Wholesale Corp., 426 F. Supp. 2d 1115, 1118 (S.D. Cal. 2006). Our case on appeal has distinguishing circumstances from Fair Housing v. Riverside Two. DiscoverBank, who filed its motion last, did not label its motion as a
cross motion as may have been done by the plaintiffs in Fair Housing. Cross motions for summaryjudgment are typically scheduled to be heard at the same hearing. Discover Bank scheduled its hearing for a date later than the hearing for the Lem1eys' motion. We discount the importance ofthese distinctions. Discover Bank's motion was pending at the time the trial court reviewed the Lemleys' motion. Although Discover Bank did not label the affidavits ofJoshua Smith and James Ball as opposing the Lem1eys' summary judgment motion, Discover Bank captioned its summaryjudgmentbriefas supporting its motion and opposing the Lemleys' motion. The briefdeclared that the Smith and Ball affidavits should be reviewed when addressing the Lemleys' summaryjudgment motion. In Mithoug v. ApolloRadio of Spokane, 128 Wn.2d 460,909 P.2d 291 (1996), Joyce Mithoug and a co-worker sued their employer for discrimination and retaliatory discharge. The trial courtgrantedthe employer summaryjudgment. Its order statedthat it did not consider depositions on file. The order did not declare the reason for ignoring the depositions, butthe reason may have been that the depositions were not attached to a 15No.31080-9-III DiscoverBankv. Lemley

briefor affidavit. When reviewing the summaryjudgment dismissal, we granted the employer's motion to strike the deposition testimony, since the trial court had not considered the depositions. The Supreme Court reversed us. The trial courthad entered

an orderpublishing the depositions. Joyce Mithoug referred to the depositions by page and line numbers in her memorandum. Thus, the trial court failed to consider the depositions in opposition to the employer's summaryjudgment motion. CR 56(c) directs the courtto consider "pleadings, depositions, answers to interrogatories, and admissions onfile,together with the affidavits, ifany." (Emphasis added.) The depositions were in the court file and CR 56 does not require they be attached to any pleading. A liberal reading ofMithoug requires the trial courtto consider any admissible evidence found in its file when deciding a summaryjudgmentmotion. In Peterson v. Pacific First Federal Savings & LoanAss 'n, 23 Wn. App. 688, 598 P.2d 407 (1979), our court reversed the trial court's denial ofa summaryjudgment motion broughtby the defendant. The trial court ignored the defendant's admissions to theplaintiffs factual allegation in his complaint and a disbursement order in the guardianship proceeding. The trial court should have considered those pleadings on file 

# r f and granted summaryjudgmentto the defendant. A liberal reading ofPeterson also 

# i demands that the trial court consider any admissible evidence found in its file when 

# ! I

# I f deciding a summaryjudgmentmotion. When applying the civil rules, we should employ practical, rather than technical 16 f.

# I**~**No. 31080-9-II1 DiscoverBank

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solutions to questions. Kohl v. Zemiller, 12 Wn. App. 370, 372, 529 P.2d 861 (1974). We should avoid procedural traps for the litigants. Gattv. Woody, 11 Wn. App. 504, 508,524 P.2d 452 (1974). We hold that under these circumstances, when a party opposing a summaryjudgment motion also has a pending summaryjudgment motion and the opposing party references affidavits supporting its summaryjudgment motion in its briefopposing the other party's summaryjudgmentmotion, the court should consider those affidavits when reviewing the first summaryjudgment motion. By ourruling, we do not preclude the trial court from striking the affidavits of James Ball and Joshua Smith on other grounds. The Lemleys objectedto one ormore of the affidavits because they were untimely and because the information and witnesses

were not previously disclosed in discovery. The trial court did not address these objections because it ignored the affidavits on another ground. Onremand, the trial court should address these objections ofthe Lemleys, ifand when the Lemleys renew their motion for summaryjudgment. Ourruling also does not address whetherJoshua Smith

orJames Ball qualifies to testify to the facts stated in their respective affidavits or whether either qualifies to identify the documents attached to their respective affidavits. Ifthe trial court denies theLemleys' motion to strike because ofuntimeliness or discovery violations, thetrial court will need to otherwise determine the admissibility of the two affidavits.

17No. 31080-9-III 

### DiscoverBankv. 

### Lemley

CONCLUSION We remand the case to the trial court for further proceedings. Ifthe Lemleys

renew their summaryjudgmentmotion, the trial court should consider affidavits submitted by DiscoverBank in support ofits summaryjudgmentmotion, unless the trial court rules that the affidavits should not be considered because ofthe failure to comply with discovery, because oftheir untimeliness, orbecause ofevidence rules. We also vacate thejudgmentin favor ofthe Lemleys and their counsel for attorney fees and costs. The trial court should readdress an award offees and costs, including fees and costs on appeal, upon completion ofthe case.

WE CONCUR:

# ~, , Korsmo, C.J. Kulik, J.P.T

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