FILED 


MARCH 18, 2014 


In the Office of the Clerk ofCourt 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


DISCOVER BANK, ISSUER OF THE ) 

DISCOVER CARD, ) No. 31080-9-111 

) 

Appellant, ) 

) 

v. ) 

) PUBLISHED OPINION 

MAURIE L. LEMLEY and DOE I, and their ) 

marital community composed thereof, ) 

) 

Respondents. ) 

FEARING, J. - Discover Bank filed suit against Maurie and Linda Lemley, 

husband and wife, for failing to pay a credit card debt. The trial court granted the 

Lemleys' summary judgment motion, ruling that Discover Bank failed to present 

admissible evidence establishing the Lemleys entered into a contract, let alone owed the 

bank the alleged $5,729.28. Discover Bank appeals the summary judgment order. The 

principal issue raised by the parties on appeal concerns the qualifications needed by an 

affiant on behalf of a major credit card company to identify the controlling contract with 

the debtor and establish the amounts owed, in response to a summary judgment motion. 

We do not address this issue, but instead remand the case to the trial court for another 

summary judgment hearing. At the new hearing, the court should consider the affidavits 
No. 31080-9-III 

Discover Bank v. Lemley 

despite their not being labeled in opposition to the Lemleys' summary judgment motion, 

unless they are inadmissible or should be stricken, in whole or in part, on other grounds. 

FACTSANDPRODECURE 

This outline of facts chronologically follows events during this lawsuit. Some of 

the underlying facts will emerge when identifying and outlining affidavits filed in support 

of and in opposition to summary judgment 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 myself and my wife 

lost our jobs. Our house was au[c]tioned off by the bank. We [went] 

home one night and the locks were changed. Then I find out that the 

fire I was in, the blood the[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 if I 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 making payments 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. 

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No. 31080-9-111 

Discover Bank v. Lemley 

On July 28,2011, Discover Bank moved for summary judgment. In support of its 

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. Included within the scope ofmy responsibilities 

includes the performance of collection and recovery services. I make 

this affidavit on the basis ofmy personal 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 govern the 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 Defendant has defaulted under the terms ofthe 

Cardmember Agreement by failing to make the payments due as 

required by the agreement. 

At the 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. 

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No. 31 080-9-III 

Discover Bank v. Lemley 

The first page attached to Patrick Sayers' affidavit is a Discover Financial Services 

"TM SALE DETAIL REPORT." CP at 17. Sayers' affidavit does not identify or explain 

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 of each page 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 last purchase by a 

charge on the card. Curiously, the comer also includes the time of 1 :37 p.m., which may 

suggest the date and time is the date ofprinting the document from a computer, but such 

date precedes the lawsuit by more than one year. Each page 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 intervening pages progressing periodically with the second. The attached 


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


Lemley did not sign the cardmember agreement, nor did any person on behalf of 

Discover Bank 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. It contains the terms and conditions of your Account, 

some ofwhich may have changed from earlier materials provided to 

4 

No. 31080-9-III 

Discover Bank v. Lemley 

you. In the event of any differences, this Agreement shall control. 

CP at 19. 

Sixty-three pages of credit 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 credit tactics employed by Discover Card to 

maximize revenue and personal details of Maurie Lemley's life. Of course, the truth of 

the information contained on the statements is subject to 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 summary judgment. The bank 

issued a blanket response to each interrogatory: 

Plaintiff responds to this request for production by providing the 

attached, relevant, non-privileged documents in its possession, custody 

and/or control. Plaintiff reserves the right to amend this response by 

providing additional relevant, non-privileged documents, if any, 

as they come into its possession, custody and/or control, if at all. 

CP at 548 (emphasis added). 

The Lemleys deemed Discover Bank's responses deficient and counsel held a 

telephonic conference as required by CR 26(i). During the conference, which was 

recorded, the Lemleys' counsel asked bank counsel, "You've done a reasonable ... effort 

to respond to these [requests for production], correct?" CP at 891. Counsel responded, 

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No.31080-9-III 

Discover Bank v. Lemley 

"Right, yes." CP at 891. Continuing his line of questioning, the Lemleys' counsel asked, 

"At this time are you planning to produce any further documents?" CP at 898. Discover 

Bank counsel replied, "No, I'm not planning 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 summary judgment 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 of a contract. 

On May 24, Discover Bank filed its own second motion for summary judgment. 

The deadline for hearing dispositive motions was June 25. Summary judgment motions 

are heard in Spokane County Superior Court on Fridays, and the only Friday that 

complied with the deadline and afforded sufficient notice to the Lemleys was June 22. 

The judge assigned to hear the case was not available on June 22, so Discover Bank filed 

a motion to shorten time and to permit its- summary judgment motion to be heard 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' 

summary judgment on June 15. 

James Ball signed an affidavit in support of Discover Bank's renewed motion. 

Ball's affidavit reads, in part: 

6 

No. 31080-9-III 

Discover Bank 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 

of my personal knowledge and a review of the 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 behalf of DB Servicing Corporation, as servicing affiliate ofDiscover 

Bank, and have reviewed the records with respect to the account at issue. 

4. As a Team Leader for the Legal Placement Department for DB 

Servicing Corporation, I manage employees who approve and maintain 

accounts placed with our attorney network in order to enter judgment on 

behalf ofDiscover Bank. I am familiar with the manner and methods by 

which Discover Bank and DB Servicing Corporation create and maintain 

their business records, including computer records of accounts such as 

records of activities, charges and payments. All such records were made at 

or near the time of the events recorded and were made and kept in the 

ordinary course ofthe business of Discover 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 of Mr. 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 ofthe Application and original 

Cardmember Agreement is attached hereto as Exhibits 1 and 2. The 

Cardmember Agreement provided 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. If required 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 of the change and to new 

charges made after that date. You may be offered the 

opportunity to reject some of the changes, and if you do, you 

7 

No. 31080-9-III 

Discover Bank v. Lemley 

must notify us in writing within 15 days after the mailing of 

the notice of the change at the address provided in the notice 

ofchange, in which case your Account will be closed and you 

must pay us the balance that you owe us under the existing 

terms of the unchanged Agreement. Otherwise, you will have 

agreed to the changes in the notice. Use of your Account 

after the effective date of change 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 of the product, 

service, or benefit. 

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 of Discover Bank's 

second summary judgment motion. Smith testified, in the affidavit, in part: 

8 

No. 31080-9-111 

Discover Bank 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 of 

my personal knowledge and a review ofthe files and records maintained by 

Discover with 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 

Discover Bank, an FDIC Insured Delaware State Bank. I am authorized to 

make this Affidavit on behalf ofDB Servicing Corporation, as servicing 

affiliate ofDiscover Bank, and have reviewed the records with respect to 

the account at issue. 

3. The records produced with this Affidavit are in the possession 

and control of, and were created and/or maintained 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 their business records, including 

computer records of accounts such as records of activities, 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 of 

Discover 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. 

4. Attached hereto as Exhibit A are true and accurate copies of 

statements sent the Lemleys from November 2006 to September 20 I O. 

These statements ... are ofthe original transaction history and were 

reprinted for this litigation. Attached as Exhibit B are true and correct 

copies ofpayment stubs and checks from the Lemleys, making payment on 

their Discover account. 

CP at 366-67. 

Joshua Smith attached to his affidavit the same account statements attached to 

Patrick Sayers' affidavit. Smith attached to his affidavit more checks and payment 

coupons than attached to the earlier summary judgment brief. 

9 

No. 31 080-9-III 

Discover Bank v. Lemley 

Neither Joshua Smith's nor James Ball's affidavit stated they were filed in 

opposition to the Lemleys' second summary judgment motion. Nevertheless, the caption 

to Discover Bank's memorandum opposing the Lemleys' renewed summary judgment 

motion included the language, "AND IN SUPPORT OF ITS MOTION FOR 

SUMMARY JUDGMENT." CP at 354. The memorandum requested that the trial court 

consider the 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' summary judgment motion by noting that the Lemleys, in their initial response 

to its complaint, stated they "realize[d they] asked for this credit card." CP at 355. 

Discover Bank also pointed to the Lemleys' use of the credit card and the cancelled 

checks as evidence that they contracted with the bank. 

The Lemleys objected to Discover Bank's motion for a summary judgment 

hearing on shortened time, on the twin grounds that the bank should not wait until near 

the deadline to file the motion and the bank based its motion on evidence not produced 

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 of its summary judgment motion, Discover Bank claimed 

that the Lemleys never sought in discovery the original cardmember agreement attached 

10 

No. 31080-9-III 

Discover Bank v. Lemley 

to James Ball's affidavit, since the request for production sought signed agreements and 

the original agreement was not signed. The Lemleys did not seek to strike the affidavit of 

Joshua Smith. 

On June 15, the Spokane County Superior Court heard oral argument on the 

Lemleys' motion for summary judgment. At the beginning of the 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 

earlier ruling. 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 

sustained the 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 noted to be heard 

together to afford notice to court and parties as to the evidence to be considered." CP at 

851. 

At the conclusion of the June 15 summary judgment hearing, the court stated: 

The burden to [Discover Bank] in summary judgment[,] when the 


motion is being brought by [defendants,] is to establish at least 


questions of material facts on their prima facie case. 


II 

No. 31080-9-III 

Discover Bank v. Lemley 

As the court has reviewed the documents that have been provided 

since the original denial of summary judgment 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 of that debt 

were, how they were defined, what are the material components of that 

contract. 

CP at 712. "It does not," the court explained, "provide adequate evidence as a matter of 

law to computer generate a copy ofwhat might have been terms at a particular point 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 that the 

affidavit and supporting documents Discover Bank submitted in "opposition to [the 

Lemleys'] Motion for Summary Judgment and in support 0/[Discover's} Motion/or 

Summary Judgment do not contain the ... reliable foundation, pursuant to Court Rule 

56( e), to establish that the Affiant had 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 of its case-damages-entitled the 

Lemleys to summary judgment. 

In a motion to reconsider, Discover Bank contended the court erred when it 

refused to consider the affidavits and exhibits filed in support of its own motion for 

summary judgment. In their response to the motion, the Lemleys argued that the court 

12 

No. 31080-9-III 

Discover Bank v. Lemley 

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 memorandum jointly offered in opposition to the Lemleys' motion and in support 

ofthe bank's motion. The court, however, refused to consider the attachments to the 

memorandum because of a lack of authentification. "Any other summary judgment 

pleadings," the court explained, "were clearly designated for [Discover's] own later 

scheduled ... noticed hearing." CP at 851. IfDiscover intended that 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. 

LA W AND ANALYSIS 

Discover Bank contends the trial court made three errors when granting the 

Lemleys summary judgment. First, the trial court erroneously ignored affidavits 

submitted in support ofDiscover's motion for summary judgment. Second, even without 

those additional pleadings, the affidavits submitted in opposition to the Lemleys' motion 

were sufficient to establish an issue of material fact. Third, even if all affidavits were 

properly excluded, the Lemleys' own admissions and conduct raised 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 of Joshua Smith and James Ball on 

13 

No.31080-9-III 

Discover Bank v. 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 of Appeals decision and two Washington decisions that indirectly address 

our question, in addition to Washington's liberal policy of applying its civil rules. 

In Fair Housing Council o/Riverside County, Inc. v. Riverside Two, 249 F.3d 

1132, 1134-35 (9th Cir. 2001), the federal court prescribed the scope ofpleadings a 

district court must review to determine whether summary judgment is appropriate, under 

the circumstances when opposing parties file cross motions for summary judgment. The 

plaintiffs, unlike the defendant, did not file evidence in opposition to the defendant's 

motion for summary judgment. Instead, they "relied on the evidence that they had 

submitted in support oftheir motion for summary judgment." Id. The trial court granted 

the defendant's motion for summary judgment because, 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 "that the district court was required to 

review the evidence properly submitted in support of [plaintiffs'] motion to determine 

whether it presented a disputed issue of material fact precluding summary judgment in 

favor of [d]efendants." Id. The trial court must consider each party's evidentiary 

showing, regardless of under which motion the evidence was tendered. Id. Numerous 

United States District Courts within the Ninth Circuit Court of Appeals have followed the 

14 

No. 31080-9-III 

Discover Bank v. 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. Discover Bank, 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 

summary judgment 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 of these 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 of Joshua Smith and James Ball as opposing the Lem1eys' summary 

judgment motion, Discover Bank captioned its summary judgment brief as supporting its 

motion and opposing the Lemleys' motion. The brief declared that the Smith and Ball 

affidavits should be reviewed when addressing the Lemleys' summary judgment motion. 

In Mithoug v. Apollo Radio ofSpokane, 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 court granted the employer summary judgment. Its order stated that 

it did not consider depositions on file. The order did not declare the reason for ignoring 

the depositions, but the reason may have been that the depositions were not attached to a 

15 

No.31080-9-III 

Discover Bank v. Lemley 

brief or affidavit. When reviewing the summary judgment 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 court had entered 

an order publishing 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 summary judgment motion. CR 56(c) directs 

the court to consider "pleadings, depositions, answers to interrogatories, and admissions 

onfile, together with the affidavits, if any." (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 court to consider any admissible evidence found in 

its file when deciding a summary judgment motion. 

In Peterson v. Pacific First Federal Savings & Loan Ass 'n, 23 Wn. App. 688, 598 

P.2d 407 (1979), our court reversed the trial court's denial of a summary judgment 

motion brought by the defendant. The trial court ignored the defendant's admissions to 

the plaintiffs 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 summary judgment to the defendant. A liberal reading of Peterson also i 

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

I 

I 

f deciding a summary judgment motion. 

When applying the civil rules, we should employ practical, rather than technical 

16 f. 

I 

~ 
No. 31080-9-II1 

Discover Bank v. Lemley 

solutions to questions. Kohl v. Zemiller, 12 Wn. App. 370, 372, 529 P.2d 861 (1974). 

We should avoid procedural traps for the litigants. Gatt v. Woody, 11 Wn. App. 504, 

508,524 P.2d 452 (1974). We hold that under these circumstances, when a party 

opposing a summary judgment motion also has a pending summary judgment motion and 

the opposing party references affidavits supporting its summary judgment motion in its 

brief opposing the other party's summary judgment motion, the court should consider 

those affidavits when reviewing the first summary judgment motion. 

By our ruling, we do not preclude the trial court from striking the affidavits of 

James Ball and Joshua Smith on other grounds. The Lemleys objected to one or more 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. On remand, the trial court 

should address these objections of the Lemleys, if and when the Lemleys renew their 

motion for summary judgment. Our ruling also does not address whether Joshua Smith 

or James 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 the Lemleys' motion to strike because of untimeliness or 

discovery violations, the trial court will need to otherwise determine the admissibility of 

the two affidavits. 

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No. 31080-9-III 

Discover Bank v. Lemley 

CONCLUSION 

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

renew their summary judgment motion, the trial court should consider affidavits 

submitted by Discover Bank in support of its summary judgment motion, unless the trial 

court rules that the affidavits should not be considered because of the failure to comply 

with discovery, because of their untimeliness, or because of evidence rules. 

We also vacate the judgment in favor of the Lemleys and their counsel for attorney 

fees and costs. The trial court should readdress an award of fees and costs, including fees 

and costs on appeal, upon completion ofthe case. 

WE CONCUR: 

~,, 

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

18