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Ellerman v. Centerpoint Prepress Inc.

January 13, 1997


Appeal from Superior Court of King County. Docket No: 93-2-17708-9. Date filed: 12/22/94.

Rehearing Deferred July 8, 1997,

Authored by C Kenneth Grosse. Concurring: Ann L. Ellington, Ronald E. Cox.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- Michael J. Ellerman appeals the judgment entered against him in his action seeking the recovery of unpaid wages. Ellerman claims that Betty Handly, the sole respondent on appeal, was Ellerman's employer, not Centerpoint Prepress, Inc. (Centerpoint), the company for whom Ellerman worked. Alternatively, Ellerman claims that Handly was an agent or vice principal of his employer and therefore is the party liable for the unpaid wages. We disagree and affirm.

This opinion will not be published. The facts are known to the parties and will be mentioned only insofar as necessary to an understanding of this opinion.

Ellerman raises two preliminary, largely procedural, issues which we will briefly address. First, he claims that Handly should not be permitted to supplement the clerk's papers with a letter opinion issued by the trial court, from which the findings of fact and Conclusions of law were drawn, because the document was never filed below. However, the copy of the document appearing in the supplemental clerk's papers filed in this court contains a stamp from superior court showing that it was in fact filed in that court on December 22, 1994, the date the judgment against Ellerman was filed. *fn1 RAP 9.6(b)(1)(E) provides that clerk's papers must include, inter alia, any written opinion, findings of fact, or Conclusions of law. Since Ellerman failed to include the letter opinion in his designated clerk's papers, it was proper for Handly to seek to supplement the clerk's papers with the letter opinion.

Next, Ellerman contends that the trial court erred by allowing Handly to put on a case in chief, or alternatively, by failing to sanction her, because she failed to exchange a witness and exhibit list prior to trial as required by King County Local Rule (KCLR) 16(a)(3). Under the circumstances, we disagree. Pursuant to KCLR 16(a)(3), parties to a case governed by a case schedule, as here, must exchange lists of witnesses and exhibits not later than 21 days before the scheduled trial date. Handly never filed a list of witnesses or exhibits.

Pursuant to KCLR 16(a)(4), the parties must file a joint statement of evidence not later than five court days before the scheduled trial date, which is to contain a list of witnesses and exhibits the parties intend to call and offer at trial. The joint statement was prepared by Ellerman's attorney and, according to the signature page, was "approved via telephone" by Handly's counsel. The document states that because Handly failed to file a list of witnesses and exhibits, she did not plan to call witnesses, but rather would rely on cross examination.

At trial, defense counsel called the defendant Handly. Ellerman's counsel objected on the ground that Handly had not submitted a witness list. Handly's counsel stated that he had informed opposing counsel of his intent to call Handly and did not bother to prepare a witness list since Handly appeared on Ellerman's list as an adverse witness. The trial court held that Handly could testify since she was a party. The court decided that other witnesses who had testified during Ellerman's case in chief could also testify if called by the defense, but that Handly could not introduce any new documentary evidence or call any other witnesses. As it turned out, the defense called only Handly and Rosemary Widener, whom Ellerman had previously called.

The local rule allows use of witnesses and exhibits not listed if the court so allows "for good cause and subject to such conditions as Justice requires." KCLR 16(a)(3). In limiting the defense witnesses to the defendant and to those who had testified during presentation of the plaintiff's case, and in barring the introduction of any new evidence, the trial court resolved the matter in a fair and equitable manner. Also, the trial court had previously allowed Ellerman to call a witness who was not listed on his witness list. Although court rules are obviously enacted for a purpose and should not be disregarded by those at whom they are directed, the trial court's decision to allow the witnesses was fair and reasonable under the circumstances and allowed presentation of a more complete set of facts to the fact-finder. We find no error in the trial court's actions.

Turning to the merits, Ellerman claims that Handly was liable as an employer under RCW 49.48.010 for payment of the wages due him for his employment by Centerpoint. We disagree.

RCW 49.48.010 provides in part:

When any employee shall cease to work for an employer, whether by discharge or by voluntary withdrawal, the wages due him on account of his employment shall be paid to him at the end of the established pay period[.]

The statute also makes it unlawful for an employer to withhold or divert any portion of an employee's wages unless the deduction is required by federal or state law, agreed upon by the employee and employer, or for medical, surgical, or hospital care pursuant to rule or regulation. RCW 49.48.010. Violation of ...

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