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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

AUDLEY BECKER, an individual,               ) 
                                            )       No. 66468-9-1 
                      Respondent,           )
                                            )       DIVISION ONE
              v.                            )
                                            ) 
ITMSOURCE, INC., a Washington               ) 
corporation (UBI #602055369); and           ) 
DARREN VARNADO, aka DARREN                  )
PLATER, and JANE DOE and their              )       UNPUBLISHED OPINION 
marital community,                          )
                                            )       FILED:  June 11, 2012
                      Appellants.           ) 
________________________________) 

       Becker, J.  --  ITMSource Inc. and Darren Varnado contend the trial court 

erred by entering summary judgment against them after they neglected to file 

responses to the plaintiff's motion for summary judgment or discovery requests.  

We affirm.  

                                        FACTS

       According to pleadings filed in the trial court, Audley Becker worked for 

ITMSource as a sales executive from February 2003 until Becker's resignation 

effective September 4, 2009.  Darren Varnado was the president and chief 

executive officer of the company.  On December 17, 2009, Varnado was  

No. 66468-9-I/2

personally served with Becker's summons and complaint for breach of contract

and exemplary damages under chapter 49.52 RCW.  Becker alleged ITMSource

and Varnado had failed to pay the remainder of Becker's agreed upon wages, 

benefits, and commissions, totaling $139,412.64, as well as medical insurance 

premiums totaling $1,195.50.  Varnado answered on January 8, 2010, claiming 

lack of knowledge and therefore denying all allegations in the complaint.

       On May 11, 2010, Varnado was served with Becker's requests for 

admission and for production of documents.  Varnado did not respond.  

       On September 10, 2010, Becker moved for summary judgment.  He asked

the court to rule under CR 36 that by failing to reply to his requests for 

admission, Varnado had, as a matter of law, "admitted" each allegation 

contained in the requests.  Varnado did not file any response to Becker's

summary judgment motion.

       The court heard argument on the motion on October 29, 2010.  Varnado 

appeared at the hearing pro se.  The court granted Becker's motion for summary 

judgment.  The court entered judgment holding ITMSource and Varnado jointly 

and severally liable to Becker in the amount of $277,978.80 plus reasonable 

attorney fees and costs. 

       Varnado retained counsel and moved for reconsideration, which was 

denied.  This appeal followed.

                                        analysis

       This court reviews summary 
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No. 66468-9-I/3

judgment orders de novo, engaging in the same inquiry as the trial court.  

Cornish Coll. of the Arts v. 1000 Virginia Ltd. P'ship, 158 Wn. App. 203, 216, 

242 P.3d 1 (2010), review denied, 171 Wn.2d 1014 (2011).  Summary judgment 

is appropriate "if the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law."  CR 56(c).  We construe the evidence and 

inferences from the evidence in favor of the nonmoving party.  Cornish Coll., 158 

Wn. App. at 216.  

       Varnado and ITMSource (collectively Varnado) contend the trial court 

erred by refusing to grant them additional time under CR 56(f) to respond to 

Becker's motion. The record supplied on appeal does not show that Varnado 

requested a continuance from the trial court, that he filed an affidavit presenting 

reasons justifying such a continuance, or that any particular piece of admissible 

evidence had been previously "unavailable" to him, such as would justify 

application of this rule.  See Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 

474 (1989).  Varnado has cited no authority requiring the trial court to raise the 

question of a CR 56(f) continuance sua sponte.  The court's failure to grant a 

continuance under this rule was not a manifest abuse of discretion.  MRC 

Receivables Corp. v. Zion, 152 Wn. App. 625, 629, 218 P.3d 621 (2009).

       Varnado contends his situation warranted an exemption from strict 

application of CR 56(f) because he appeared pro se at the hearing.   He cites no 

authority supporting such a broad grant of 3 

No. 66468-9-I/4

exemption from the rule. 

       Varnado contends under CR 59(a)(7) that the evidence before the court 

presented no reasonable inference justifying a ruling in favor of Becker.  

Varnado ignores the effect of CR 36.  That rule provides, in pertinent part: 

                  (a) Request for Admission.
              . . . .
              Each matter of which an admission is requested shall be 
       separately set forth.  The matter is admitted unless, within 30 days 
       after service of the request, or within such shorter or longer time as 
       the court may allow, the party to whom the request is directed 
       serves upon the party requesting the admission a written answer or 
       objection addressed to the matter, signed by the party or by his 
       attorney . . . .
              . . . . 
              (b) Effect of Admission.  Any matter admitted under this 
       rule is conclusively established unless the court on motion permits 
       withdrawal or amendment of the admission.

CR 36 (emphasis added).  As indicated in the trial court's minute entry, Varnado 

did not respond to Becker's discovery requests.  As a result of this omission, 

Varnado admitted the facts alleged therein, which were sufficient to support the 

judgment.  

       Varnado argues his failure to respond to Becker's discovery requests was 

immaterial since by answering the complaint he "essentially already answered" 

Becker's requests for admission.  Varnado cites no authority requiring, or even 

permitting, a court to consider a litigant's answer in place of CR 36 discovery 

responses.  Varnado failed to comply with the requirements of CR 36:  

       A denial shall fairly meet the substance of the requested 
       admission, and when good faith requires that a party qualify his 
       answer or deny only a part of the matter of which an admission is 
       requested, he shall specify so much of it as is true and qualify or 
       deny the remainder.  An answering 4 

No. 66468-9-I/5

       party may not give lack of information or knowledge as a reason for 
       failure to admit or deny unless he states that he has made 
       reasonable inquiry and that the information known or readily 
       obtainable by him is insufficient to enable him to admit or deny.

CR 36(a) (emphasis added).

       Varnado contends the requests for admission improperly called for 

Varnado to "admit or deny facts central to the questions of liability and damages 

which are questions for the jury and/or fact finder."  Varnado fails to identify any 

individual request he deems objectionable.  And the time for objecting to the 

scope of Becker's discovery requests has passed.  See CR 36(a).

       Varnado contends the court improperly rested its ruling on technicalities 

while avoiding the merits.  The record does not support this characterization.  

The court ruled in this matter more than five months after Varnado was 

personally served with Becker's discovery requests, and nearly two months after 

Becker moved for summary judgment.  Varnado was not deprived of an 

opportunity to present his defense.

       Varnado contends the court should have reconsidered its ruling because 

his lack of response was due to a medical disability and legal problems.  The 

record does not support his claim.  To the contrary, it establishes that Varnado 

was capable of swiftly retaining counsel to assist him in this matter, as shown by 

the motion for reconsideration filed by counsel no fewer than seven days after 

the judgment was entered.  There was no abuse of discretion. 

                                              5 

No. 66468-9-I/6

       Affirmed.

WE CONCUR:

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