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Singleton v. Naegeli Reporting Corp.

January 15, 2008

CANDY SINGLETON, ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, APPELLANT,
v.
NAEGELI REPORTING CORPORATION, RESPONDENT.



The opinion of the court was delivered by: Bridgewater, P.J.

PUBLISHED OPINION

Candy Singleton appeals from the trial court's decision under CR 12(b)(6) that Naegeli Reporting Corporation was exempt under the Washington Consumer Protection Act, chapter 19.86 RCW (CPA). We hold that administrative regulations did not specifically permit the complained of actions (i.e., inflating the number of pages in its transcripts by adding tab spaces and inserting new paragraphs which made the transcripts more expensive than they should have been) and thus do not qualify for exemption from the CPA. We reverse and remand for trial.

FACTS

In 2001, Candy Singleton filed a personal injury lawsuit in Kitsap County. Through her attorney, Singleton contacted Naegeli Reporting Corporation (Naegeli) to provide court reporters to report and transcribe oral testimony at depositions in her case.

Naegeli is a legal services firm that provides various services to legal professionals, including court reporting. It independently contracts licensed court reporters to record legal proceedings. According to Naegeli, when a party requests transcription of a legal proceeding, the court reporter transcribes the record and forwards that transcription to Naegeli. Naegeli then places the transcripts in a "standard" format. Clerk's Papers (CP) at 61, 85. Naegeli maintains that the standard format it uses:

[I]ncludes synchronization of the written transcript to the audio (or video) recording of the proceeding, key-word indexing, digital scanning of all exhibits, condensed versions of the transcript, and formatting of the text into a standardized form based on the guidelines promulgated in WAC 308-14-135 and the interpretations thereof disseminated by the Washington State Department of Licensing and the Washington State Attorney General's office.

CP at 61.

Singleton employed Naegeli to record depositions occurring on August 22, 2002; December 2, 2002; December 12, 2002; and June 3, 2003. Through her attorney, Singleton requested, paid for, and received transcripts of the depositions from Naegeli.

Singleton filed this action against Naegeli on December 12, 2005, on behalf of herself and similarly situated parties, claiming unjust enrichment and violation of the CPA.*fn1 She alleged that Naegeli was unjustly enriched because it charged and received "payment for the additional transcript pages which would not have been produced had [Naegeli] complied with Washington regulations, industry standards, and its own standards." CP at 18. She also alleged that Naegeli's practices "constitute unfair and deceptive acts and practices which are unlawful and are in violation of the Washington CPA." CP at 19. Singleton's precise complaint was that Naegeli inflated the number of pages in its transcripts by adding tab spaces and inserting new paragraphs, making the transcripts more expensive than they should have been.

On March 23, 2006, Naegeli filed a motion to dismiss the action under CR 12(b)(6). But it also submitted materials outside the pleadings as evidence to support its motion. In her response, Singleton also filed materials outside the pleadings as evidence to support denial of the motion. We cannot determine from the record whether the trial court treated this as a motion for summary judgment under CR 56 or decided it under CR 12(b)(6).*fn2 At a hearing on May 12, 2006, the trial court dismissed both the unjust enrichment and the CPA claims. But the trial court granted Singleton leave to file an amended complaint for her unjust enrichment claims.

Singleton filed her amended complaint on May 22, 2006. On June 16, 2006, the trial court then entered its decision dismissing the CPA claim and denying dismissal of the unjust enrichment claim. Singleton then filed a motion for reconsideration on June 26, 2006. The trial court denied that motion on July 18, 2006.

On August 16, 2006, Singleton filed a notice of discretionary review to this court. Following oral argument, our commissioner entered a ruling granting review on October 31, 2006.

ANALYSIS

I. Jurisdiction Over Appeal

As an initial matter, Naegeli asks us to dismiss Singleton's appeal as untimely. It contends that Singleton failed to note her motion for reconsideration for hearing within 30 days as CR 59(b) required. But Naegeli's argument lacks merit.

Application of court rules to a particular set of facts is a question of law that an appellate court reviews under a de novo standard. Buckner, Inc. v. Berkey Irrigation Supply, 89 Wn. App. 906, 911, 951 P.2d 338, review denied, 136 Wn.2d 1020 (1998).

"A necessary prerequisite to appellate jurisdiction is the timely filing of the notice of appeal." Buckner, 89 Wn. App. at 911. "An appellant generally has 30 days from the entry of judgment to file its appeal." Buckner, 89 Wn. App. at 911 (citing RAP 5.2(a)). But a timely motion for reconsideration will extend that deadline. Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wn.2d 366, 368, 849 P.2d 1225 (1993);*fn3 Buckner, 89 Wn. App. at 916; RAP 5.2(a), (e). "[F]ailure to note the motion at the time it is served and filed does not affect the extension of time for appeal under RAP 5.2(e)." Buckner, 89 Wn. App. at 916.

In this case, Singleton timely filed and served her motion for reconsideration. The trial court entered its order dismissing Singleton's CPA claim on June 16, 2006. Singleton filed and served her motion for reconsideration of that order on June 26, 2006, 10 days after the order for which she sought review. Singleton also filed her note for motion docket for her motion for reconsideration on June 26, 2006.

But Naegeli further argues that because Singleton noted her motion for reconsideration for July 21, 2006, 35 days after the court's initial order dismissing her CPA claim, her motion for reconsideration was "not timely disposed." Br. of Resp't at 42. Naegeli concedes that Singleton complied with Kitsap County Local Rule CR 59(b), but it argues that KCLRCR 59(b) is inconsistent with Civil Rule 59(b) and therefore ineffective. But again, Naegeli's argument lacks merit.

CR 59(b) provides in pertinent part:

A motion for a new trial or for reconsideration shall be filed not later than 10 days after the entry of the judgment, order, or other decision. The motion shall be noted at the time it is filed, to be heard or otherwise considered within 30 days after the entry of the judgment, order, or other decision, unless the court directs otherwise.

CR 59(b) (emphasis added). KCLRCR 59(b) states that a motion for reconsideration "shall be noted on the trial judge's departmental motion docket to be heard not sooner than thirty (30) but not later than forty (40) days after entry of the judgment, decree, or order, unless the court directs otherwise." Naegeli argues that KCLRCR 59(b) is improper because it enlarges the time a court can take action under CR 59(b). See CR 6(b) (stating that a court "may not extend the time for taking any action under rules . . . 59(b)"); CR 83 (superior courts may adopt local rules that are consistent with statewide rules); GR 7. But Naegeli's statutory interpretation is erroneous.

Contrary to Naegeli's assertion, KCLRCR 59(b) is consistent with CR 59(b). By its terms, CR 59(b) authorizes trial courts to establish noting dates for reconsideration motions that are different than those set in the rule. This is apparent from the clause "unless the court directs otherwise." See CR 59(b). Moreover, the committee comment to CR 59 states that the drafters intentionally included the word "directs" rather than "orders" in the CR 59(b) clause to provide flexibility that would permit the clerk of the court to adjust the ...


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