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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JULIE A. JAMES,                             )       No. 66323-2-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
               v.                           )
                                            )       UNPUBLISHED OPINION
ROBERT L. WOODMAN and MARY C. ) 
WOODMAN, individually and as a              )
marital community,                          )
                                            )
                      Appellants.           )       FILED:  May 14, 2012

       Schindler, J.  --  Where a party is properly served with a notice to attend trial but 

refuses to do so, CR 43(f)(3) gives the trial court the discretion to strike the complaint 

or answer and enter judgment.  The record in this case supports the trial court's 

determination that the failure of the defendant Robert L. Woodman to appear at trial to 

testify was willful, but the record does not support the determination that the plaintiff 

was prejudiced or that the court affirmatively considered lesser sanctions.  We remand 

to the trial court to address on the record whether Woodman's failure to appear at trial 

substantially prejudiced the plaintiff and to consider the lesser sanctions.

                                            FACTS

       At approximately 5:30 p.m. on November 3, 2005, Julie A. James was walking  

No. 66323-2-I/2

across an unmarked crosswalk located at the intersection of SW 174th Street and

Vashon Highway SW. As Robert Woodman made a left turn in his Ford Windstar 

minivan from Vashon Highway SW, he struck James.  James landed on her left knee 

and right elbow.  James suffered a herniated disc, injury to her clavicle, and soft tissue 

injuries to her cervical, thoracic, and lumbar spine.  

       On October 24, 2008, James filed a "Complaint for Personal Injuries" against 

Robert Woodman and his spouse Mary Woodman. James claimed Robert Woodman's

negligence was the proximate cause of the "vehicle-pedestrian collision" and damages.  

James alleged that Woodman negligently or recklessly failed to stop for a pedestrian in 

an unmarked crosswalk in violation of RCW 46.61.235.  James also alleged Woodman 

was negligent in failing to yield the right of way, failing to keep a proper lookout, and to 

exercise caution. Woodman filed an answer denying liability and damages.  Woodman

alleged that James was negligent.  

       Trial was originally scheduled for April 19, 2010.  James scheduled Woodman's 

deposition for January 27, 2009.  However, because Woodman was unavailable, "the

deposition did not go forward." On January 29, Woodman filed a demand for a jury

trial. 

       In February, the parties filed a stipulated motion and order to change the trial 

date to the "mutually agreeable date of August 30, 2010, to accommodate Defendant's 

current health conditions." On March 1, the court entered an order changing the trial 

date from April 19 to August 30, 2010.  

       Approximately six weeks before trial, a new attorney for Woodman filed a notice 

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No. 66323-2-I/3

of appearance.  On July 28, James served Robert Woodman and Mary Woodman with 

a notice to compel attendance at trial.  On August 9, the parties filed a "Joint 

Confirmation of Trial Readiness." According to the Joint Confirmation, the parties had 

met and conferred, were aware of the deadlines and requirements in the pretrial order, 

and certified that the jury trial scheduled to begin on August 30 would last three to five 

days.  On August 23, Woodman filed motions in limine as well as proposed jury 

instructions.  

       At the beginning of the trial, the court states that during a chambers conference 

with the attorneys, the lawyers informed the court that Woodman "has indicated he will 

not be attending trial in spite of the proper service of notice."

       Woodman's attorney states on the record that Woodman had a stroke "within the 

last several months" but there was no medical documentation supporting the "idea that 

he is physically unable to attend trial."  

              I can tell the Court that Mr. Woodman has recently had a stroke.  
       I -- when I say recently, I mean within the last several months.  His wife is 
       ill.  He is . . . in his mid-eighties.  And I do have significant concerns over 
       whether he could or could not attend trial.  He has indicated to me that he 
       cannot attend trial.
              I have, however, been unable to obtain anything from any sort of 
       medical provider that would support that idea that he is physically unable 
       to attend trial.  And I and my office, and actually, Mr. Woodman's family 
       have all made great efforts to try to obtain something to that effect.  

       James's attorney questioned whether Woodman was unable to attend trial.  The 

attorney asked the court to review a videotape taken approximately 10 days earlier.  

The attorney states that the video shows Woodman attending an event on Vashon 

Island, and walking unassisted to stage to accept an award and perform.  

       I have an offer of proof, if the Court wanted to look at it.  Which is the 

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No. 66323-2-I/4

       videotape that I made myself of Mr. Woodman approximately two weeks 
       ago accepting an award for his musicianship over the many years and 
       playing his instrument and singing lyrics. And he looked quite fit to me.
              So, I don't dispute Counsel at all, but I query whether he could in 
       fact attend.

James's attorney asked the court to strike the answer and enter a default judgment 

under CR 43(f)(3).  

       In response, Woodman's attorney asked the court to strike "the liability defense"

but proceed to trial on damages. 

              I -- there are a number of different remedies under Civil Rule 43.  
       It's not simply a default judgment.  The Court could alternatively strike out 
       the liability defense and have the case proceed to trial on the issue of 
       general damages only. The medical specials have been stipulated 
       already. . . . [S]o that's another alternative as well that I would pose.

       The court concluded Woodman's failure to appear at trial was prejudicial to 

James because "the Defense is this case is an absolute denial of liability, the presence 

of Mr. Woodman is not simply procedural; the presence of Mr. Woodman is rather 

essential, I would assume, to the Defendant's case.  It's also rather essential, in fact, to

the Plaintiff's case." Because Woodman was properly served with the notice to compel 

attendance at trial, and there was "no evidence that in fact there is a medical basis for 

his inability to respond," the court granted the motion to strike the answer and enter a 

default judgment.

       The written findings of fact state, in pertinent part:  

       This matter came before the Court for trial on August 31, 2010.  The 
       plaintiff properly served upon the defendants a Notice to Compel 
       Attendance at Trial in accordance with CR 43.  The plaintiff filed proof of 
       service with the Court.  Defense counsel represented that Defendant 
       Robert Woodman was unable to attend trial and testify because of ill 
       health.  Defendant's counsel and defendant's daughter had made best 
       efforts to obtain written evidence regarding Mr. Woodman's ill health.  

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No. 66323-2-I/5

       Despite their efforts, they had been unable to obtain any written evidence 
       as of August 31, 2010. The plaintiff presented to the Court a video tape 
       of Mr. Woodman playing his fiddle and singing at a folk festival on 
       Vashon Island on August 21, 2010, which plaintiff argued refuted the 
       defendant's claim of Mr. Woodman's inability to attend deposition or 
       testify at trial.  The Court finds that the defendants have failed to appear 
       and testify at trial and that the Answer of the defendants should be 
       stricken and that judgment should be entered for the plaintiff.

       The written conclusions of law state, in pertinent part:  

       The Court concludes that the defendants failed to appear for trial and 
       were thus unavailable to testify.  The Court considered the available 
       remedies for defendants' failure to testify and concludes that striking the 
       Answer and ordering entry of judgment against the defendants is the 
       appropriate remedy in this case.  On August 31, 2010 in open court, upon 
       plaintiff's motion, the Court Granted PLAINTIFF'S MOTION TO STRIKE 
       DEFENDANTS' ANSWER AND FOR ENTRY OF JUDGMENT pursuant to 
       CR 43.

       The parties stipulated to special damages in the amount of $12,950.  James 

testified about the accident and general damages.  The trial court entered findings of 

fact and conclusions of law and judgment against Robert and Mary Woodman in the 
amount of $121,178.50 on September 21.1  The findings describe the accident and the 

serious injuries James suffered, and lost earning potential. The court awarded James 

$7,742 in loss of income; $25,000 in lost future earnings; and $85,000 in general 

damages.

       On October 1, Woodman filed a "Motion to Vacate Default Judgment and for 

Reconsideration and/or 'New' Trial."  Woodman asserted that entry of the judgment 

violated due process because the court did not find that his failure to attend trial was 

willful, that James was prejudiced, and the court did not explicitly considered lesser 

       1 The court concluded Woodman was entitled to a $10,000 offset for funds paid to James by his 
insurance company.
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No. 66323-2-I/6

sanctions. 

       In support of the motion, Woodman filed a declaration from his daughter Elaine 

Jewett, signed on October 1.  In the declaration, Jewett states that Woodman "suffered 

a stroke several months ago," that her mother has cancer, and that she provides daily 

care for her parents.  Jewett also states that Woodman "is frail, has memory problems, 

is easily confused, and has been forbidden to drive by his neurologist."  Jewett says

that Woodman has three physical therapy appointments per week and takes naps 

throughout the day.  But Jewett said that she was unable to obtain documentation from 

a doctor stating that her father could not attend trial due to illness.  Jewett says that she 

called Woodman's neurologist once and left a message but did not receive a response,

and that she visited the office of his cardiologist once but "[t]here was no one in the 

office at the time of my visit so I was unable to obtain anything in writing from him."  

Jewett said she did not attempt to get documentation of her father's condition from his 

primary care physician because Woodman was in the process of transitioning to a new 

doctor.  Jewett acknowledged that Woodman performed at the music festival in August 

and "[h]e was able to play, but not like he used to."

       In opposition, James argued that the record supported the trial court's decision 

to strike the answer and enter the judgment.  James pointed out that Woodman did not 

request a continuance of the trial date, or seek a perpetuation deposition or protective 

order, and Woodman did not provide medical documentation to support the claim that 

he was unable to attend trial.  The court denied Woodman's motion to vacate the

judgment.

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No. 66323-2-I/7

                                          ANALYSIS

       On appeal, Woodman contends the record does not support the trial court's

decision to strike the answer and enter judgment under CR 43(f)(3).  Woodman argues

entry of the judgment violated due process because the court did not find Woodman 

willfully refused to attend trial, that his failure to attend trial was prejudicial, or that the 

court expressly considered lesser sanctions on the record.

       We review the decision to enter judgment as a sanction for abuse of discretion.  

Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 684, 41 P.3d 

1175 (2002).  A trial court abuses its discretion when its decision is manifestly 

unreasonable or based on untenable grounds.  T.S. v. Boy Scouts of Am., 157 Wn.2d 

416, 423, 138 P.3d 1053 (2006); Magaña v. Hyundai Motor Am., 167 Wn.2d 570, 582-

83, 220 P.3d 191 (2009).  

       CR 43(f)(3) gives the court discretion to strike a party's pleadings if that party 

refuses to attend trial or give testimony.  CR 43(f)(3) provides, in pertinent part:

       If a party or a managing agent refuses to attend and testify before the 
       officer designated to take his deposition or at the trial after notice served 
       as prescribed in rule 30(b)(1), the complaint, answer, or reply of the party 
       may be stricken and judgment taken against the party.

       It is well established that when a trial court strikes an answer and enters

judgment as a sanction for violation of a discovery order under CR 37, it must be 

apparent from the record that (1) the party's refusal to obey the order was willful or 

deliberate, (2) the party's actions substantially prejudiced the opponent's ability to 

prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction 

would probably have sufficed.  Rivers, 145 Wn.2d at 686.  The same requirements

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No. 66323-2-I/8

obviously also apply to the sanctions imposed under CR 43(f)(3).    

       Relying primarily on the declaration of his daughter and Gillett v. Lyndon, 40

Wn.2d 915, 246 P.2d 1104 (1952), Woodman claims that the record does not support 

the trial court's finding that the refusal to attend trial was willful.  Woodman argues that 

the finding that Woodman "failed" to appear at trial despite proper notice does not 

constitute a finding of willfulness.  

       In Gillett, a cancer patient sued "a sanipractor and drugless healer" for false 

promises to cure her cancer.  Gillett, 40 Wn.2d at 915-16.  The court concluded that

because "[i]t was shown that plaintiff was unable to attend because of her illness," the 

plaintiff did not refuse to attend and testify.  Gillett, 40 Wn.2d at 918.  

       Here, unlike in Gillett, Woodman did not show he was unable to attend because 

of his illness.  Woodman provided no evidence of a medical basis for his inability to 

attend either at trial or in support of his motion to vacate.  Jewett's declaration contains 

no dates of her attempts to contact Woodman's doctors or the date of her father's 

stroke.  The record shows that Woodman was able to attend and perform at a music 

festival, and walk to the stage unassisted approximately 10 days before trial.  Where 

the failure to comply with the notice to attend trial is without reasonable excuse, " 'the 
refusal [i]s willful.' "  Rivers, 145 Wn.2d at 6932 (quoting Anderson v. Mohundro, 24 

Wn. App. 569, 574, 604 P.2d 181 (1979)). The trial court's determination that 

Woodman was absent without reasonable excuse, and therefore refused to attend trial, 

is supported by the record.

       Although the record establishes willfulness, we conclude that as in Rivers, the 

       2 (Internal quotation marks and citation omitted.)

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No. 66323-2-I/9

record does not show that the trial court considered the question of prejudice and 

lesser sanctions.  Rivers, 145 Wn.2d at 693-96. In Rivers, the court referred to 

discovery violations and the alleged effect on the defense, but never affirmatively 

stated on the record why the defendant was substantially prejudiced in its ability to 

prepare for trial

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No. 66323-2-I/10

and did not consider lesser sanctions. Rivers, 145 Wn.2d at 694.

       The trial court on the record did consider lesser sanctions, but only by 
       stating in the order, "The court has considered lesser sanctions of terms 
       and exclusion of testimony, but has determined that dismissal of 
       [Petitioner's] complaint with prejudice is the only appropriate remedy."
              . . . Whether she should be subject to the drastic sanction of 
       dismissal cannot be determined under the limited language used by the 
       trial court in its order of dismissal.  Before resorting to the sanction of 
       dismissal, the trial court must clearly indicate on the record that it has 
       considered less harsh sanctions under CR 37. Its failure to do so 
       constitutes an abuse of discretion.
Rivers, 145 Wn.2d at 696.3

       Likewise here, the trial court did not clearly state on the record the reasons why 

Woodman's failure to appear and testify was prejudicial, or why the lesser sanction that 

Woodman proposed to strike the answer denying liability but proceed to a jury trial on 
damages was not appropriate.4 See Rivers, 145 Wn.2d at 695 (sanctions should be 

proportional to the nature of the violation and the surrounding circumstances).  

       We reverse the trial court's order entering judgment against Woodman under CR 
43(f)(3) and remand.5

WE CONCUR:

       3 (Brackets in original) (footnote omitted).

       4 Article I, section 21 of the Washington State Constitution states that "[t]he right of trial by jury 
shall remain inviolate."
       5 We grant Woodman's motion to strike appendix 1 to the brief of respondent.

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