Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

No. 66619-3-I/2

 RICHARD STABBERT, a single man; and 
 GLOBAL MARINE LOGISTICS, LLC, a                  )         No. 66619-3-I
 Washington limited liability company;
                                                  )         DIVISION ONE
                       Appellants,
                                                  )         UNPUBLISHED OPINION
                v.
                                                  )
 GLOBAL EXPLORER, LLC, a Washington 
 limited liability company; GLOBAL                )
 ENTERPRISES, LLC, a Washington 
 limited liability company; FRANK and             )
 JANE DOE STEUART, and the marital 
 community composed thereof, and                  )
 DEEPWATER CORROSION SERVICES, 
 a Texas corporation; STEUART                     )
 INVESTMENT COMPANY, a Delaware 
 Corporation,                                     )

                       Respondents.               )         FILED: April 2, 2012

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )
                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  Stabbert's claims for compensation under separate oral and 

written contracts were dismissed on summary judgment.  Stabbert argues the trial court 

                                                   2 

No. 66619-3-I/3

improperly granted summary judgment,           failed to adequately define the summary 

judgment record, improperly sealed declarations submitted by Stabbert's attorneys, and 

erred by concluding it did not have discretion to consider Stabbert's motion for 

discovery sanctions.  We affirm summary judgment on the written agreement and on 

the question of the record for summary judgment.  We reverse summary judgment on 

the oral contract and remand for further proceedings.   We conclude the motion for 

sanctions was moot.  Concerning the sealed declarations, we remand for the trial court 

to conduct an appropriate hearing.

                                            FACTS

       Richard Stabbert is the sole owner of Global Marine Logistics LLC (collectively, 

"Stabbert").  Global Explorer LLC, Global Enterprises LLC, Steuart Invest Company, 

and Frank Steuart are related respondents            (collectively, "Global").  Steuart was 

previously the manager of Global Explorer and is currently the manager of Global 

Enterprises.  Global Explorer owned a dive support vessel, called the Global Explorer,

until September 2006        when ownership       was transferred to Global Enterprises.  

Deepwater  Corrosion Services Inc. manufactures and sells products used to fight 

corrosion on underwater pipelines.  

       This case involves two separate contracts.  The first is an oral agreement 

between Stabbert and Global to market the Global Explorer to third parties.                 The 

second is a written agreement between Stabbert, Global, and Deepwater relating to 

promoting the use of Deepwater products.

   I.  Oral Agreement

                                                   3 

No. 66619-3-I/4

       In the Gulf of Mexico, oil companies award contracts to companies that perform 

construction, inspection, maintenance and repair services on oil platforms and 

pipelines.  Those companies, in turn, charter specialized dive support vessels to 

facilitate their work.  The Global Explorer is one such vessel.  

       In either 2002 or 2003, Global and Stabbert entered into an oral agreement.  

The essence of the agreement was that Global would pay Stabbert a five percent 

commission for any charters he procured for Global.  

       In November 2006, Global sought to reduce the agreement to writing.  Steuart 

stated that the written agreement was proposed because the verbal agreement "had 

the potential to lead to and uncertainty regarding the parties' rights and duties."  

Stabbert refused to sign it.  He claimed the agreement was being forced on him to 

avoid paying him commissions.       He was also concerned that a nondisclosure provision 

in the contract would prevent him from future work in the region and compromise his 

defense if he was sued because of Global's actions.  On February 1, 2007, Global 

terminated the oral contract with Stabbert. 

       In 2006, prior to his termination, Stabbert began discussing a charter with Grupo 

Diavaz S.A. de C.V. (Diavaz), a company that performs repair and maintenance work in 

the Gulf of Mexico.    In August 2007, sixth months after Stabbert's termination, Diavaz 

and Global entered into a long-term charter.  

   II. Written Agreement

       In April 2006, Stabbert, Global, and Deepwater entered a written agreement.  

Under the agreement, Stabbert and Global became the exclusive providers of 

                                                   4 

No. 66619-3-I/5

Deepwater technology in the Gulf of Mexico, and obtained the right to bid and perform 

contracts using Deepwater technology.  In addition, they were entitled to a 10 percent

commission for any sales of Deepwater products procured outside the bid process.  

Stabbert and Global were required to bid and perform contracts using  Deepwater's 

products, obtain and provide financing for the acquisition and installation of 

Deepwater's products in each bid, and provide the services of vessels to deploy 

Deepwater's products.  The contract also provided that Stabbert and Global would 

obtain "protected status" for Deepwater technology, and bear the cost of all related 

expenses, including licensing, registering, maintaining and enforcing those licenses 

and registrations.  

       In October 2006, James Britton, a Deepwater representative, sent Global a

notice of default indicating that Deepwater may terminate the agreement:

       Dear Frank [Steuart]:

       We have informally agreed that our business arrangement must be recast 
       since the Mexican staff of [Stabbert] and Global have been unable to 
       communicate and coordinate effectively with the Deepwater 
       representatives under the April 3, 2006 Services Agreement among 
       [Stabbert], Global and Deepwater.  Coordination, without which we cannot 
       succeed, is the obligation of [Stabbert] and Global under Section 4(d).

       In the hope of moving things forward, this is Deepwater's notice of default 
       given under Section 6 of the Agreement.  Please contact me promptly to 
       discuss the necessary adjustments in our business arrangement.  If we 
       can make some progress, it will not be necessary for Deepwater to 
       exercise its right to terminate the Agreement after having given its ten day 
       default notice.

       But, after receiving assurances from Global, Deepwater decided not to terminate 

the agreement.  Stabbert claims that, at that time, he was already very close to 

                                                   5 

No. 66619-3-I/6

obtaining protected status for Deepwater's technology.  Nevertheless, on January 23, 

2007, Steuart sent an e-mail to Britton with a copy to Stabbert:

       Jim,

       I have come to the same conclusion that you have that things aren't 
       progressing with respect to the cathodic protection program.  I know you 
       had an interest in terminating the agreement.  I actually think that if we did 
       so . . . and knowing the product now . . . that we can then bring a proposal 
       to you . . . discuss a deal . . . should one come up.

(Alterations in original.)

       Britton responded that he would call Steuart the next week.  Following the e-mail

exchange, Stabbert did not communicate with anyone at Deepwater for over two years.  

During those two years, neither Stabbert nor Global bid or performed any contracts 

using Deepwater's products.  Then, in March 2009, Stabbert wrote to Britton that he 

was ready to begin selling Deepwater's products.  Deepwater was unwilling to continue 

the relationship.  On June 4, 2009, Deepwater exercised its right to terminate the 

contract due to a lack of sales.  

   III. Procedural History

       Stabbert was originally represented by three attorneys: Scott Stafne, Dennis 

Moran, and Robert Windes.  The attorneys represented another company,

Representaciones y Distribuciones EVYA, S.A. de C.V. (EVYA), in related litigation.  

On September 1, Moran and Windes filed a notice of withdrawal, alleging a conflict of 

interest, and Stabbert filed a motion to continue the trial.  

       Two days later, on September 3, Global and Deepwater filed motions for 

summary judgment.  

                                                   6 

No. 66619-3-I/7

       On September 13, Stabbert filed an objection to the notice of withdrawal.  He 

requested an in camera review on the record to determine whether there was a conflict 

that necessitated the withdrawal.  On September 17, the trial court denied the motion to 

withdraw and the motion for a continuance.  It requested a declaration from Windes 

explaining the conflict, and indicated that the declaration could be sealed.  

       On September 20, Stabbert filed a consolidated opposition to the motions for 

summary judgment, and on September 27 Global and Deepwater filed replies.  

       On September 30, the trial court sealed a declaration from Windes and a 

declaration from Moran.  That same day, Stabbert and Stafne filed declarations 

indicating that Stabbert had terminated Moran and Windes.  Windes submitted a 

second declaration sealed by the court on October 1.  

       On October 1, the trial court held a hearing on the motions for summary 

judgment.  That day, Stafne filed an additional declaration.         On October 3, Stabbert 

signed, and claims he submitted, another declaration.  

       On October 4, Stabbert filed a motion for sanctions against Deepwater, set for 

October 12.  

       On October 11, the trial court granted summary judgment.  

       On October 20, Stabbert filed a motion for reconsideration.  

       On January 4, 2011,  the trial court denied the motion for sanctions and the 

motion for reconsideration.  

       Stabbert appeals.

                                        DISCUSSION

                                                   7 

No. 66619-3-I/8

       Stabbert claims on appeal that summary judgment was improper,                   because 

genuine issues of fact remain.  He argues there are remaining  issues regarding 

whether Global owes him commissions for the August 2007 Diavaz charter and whether

Global and Deepwater repudiated the written agreement.  

       Stabbert also asserts a variety of other errors.  He argues that the trial court 

failed to consider the October 1 Stafne and October 3 Stabbert declarations, improperly 

sealed his former attorneys' declarations, and abused its discretion by denying 

Stabbert's motion for sanctions.  

   I.  Summary Judgment

       We review a summary judgment order de novo.  Hadley v. Maxwell, 144 Wn.2d 

306, 310-11, 27 P.3d 600 (2001).  Summary judgment is appropriate if there is no 

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

matter of law.  CR 56(c).  A material fact is one upon which the outcome of the litigation 

depends, in whole or in part.  VersusLaw, Inc. v. Stoel Rives, LLP, 127 Wn. App. 309, 

319, 111 P.3d 866 (2005).  The moving party bears the burden of demonstrating there 

is no genuine issue of material fact, and we view all facts and reasonable inferences in 

the light most favorable to the nonmoving party.  Id. at 319-20.  Once the moving party 

makes an initial showing of the absence of any genuine issue of material fact, the 

nonmoving party must respond with more than conclusory allegations, speculative 

statements, or argumentative assertions of the existence of unresolved factual issues.  

Ruffer v. St. Frances Cabrini Hosp. of Seattle, 56 Wn. App. 625, 628, 784 P.2d 1288 

(1990).

                                                   8 

No. 66619-3-I/9

       A.     Oral Agreement

       In general, a broker is not entitled to a commission unless he is the procuring 

cause of the transaction that is ultimately consummated.  Guenther v. Equitable Life 

Assurance Soc'y of the U.S., 23 Wn.2d, 65, 72, 159 P.2d 389 (1945).  A broker is the 

procuring cause of a transaction when he locates a purchaser who is willing and able to 

purchase according to the terms of the seller.  See Clarkson v. Wirth, 4 Wn. App. 401, 

405, 481 P.2d 920 (1971).  In other words, it is not enough to locate the purchaser; the 

broker's efforts must have actually led to the transaction on which the broker claims 

commissions.  Roger Crane & Assocs., Inc. v. Felice, 74 Wn. App. 769, 776-77, 875 

P.2d 705 (1994).  The deal must be consummated within a reasonable time for the 

broker to be entitled to a commission.  Thayer v. Damiano, 9 Wn. App. 207, 210-11, 

511 P.2d 84 (1973).  

       But, there is nothing that prevents parties from agreeing to a rule other than the 

procuring cause rule.  See, e.g., Prof'ls 100 v. Prestige Realty, Inc., 80 Wn. App. 833, 

838, 911 P.2d 1358 (1996) ("Although a contract could provide for payment of 

commissions to a broker for being something less than the procuring cause of a sale, 

the language in this contract does not so provide.").

       Indeed, Stabbert argues that the parties agreed that all Stabbert had to do was 

bring a potential client to the table.  Determining the terms of an oral agreement is an 

issue of fact.  See, e.g., Duckworth v. Langland, 95 Wn. App. 1, 6-7, 988 P.2d 967 

(1998).  Thus, if there is a genuine issue as to a material term of the oral agreement, 

then summary judgment was inappropriate.

                                                   9 

No. 66619-3-I/10

       Steuart offered the following characterization of the oral agreement:

       In approximately 2003, Global Explorer, LLC and plaintiff Richard 
       Stabbert ("Stabbert") entered into an oral agreement for Stabbert to 
       market the GLOBAL EXPLORER in Mexico (the "Oral Contract").  The 
       terms of the Oral Contract were that Stabbert would be paid a five percent 
       commission on any charters of the GLOBAL EXPLORER which came 
       about as a direct result of Stabbert's efforts to secure a charter.  Stabbert 
       worked in this capacity individually and through a company he owns, 
       Global Marine Logistics, LLC ("GML").  Sometimes Stabbert would share 
       his five percent commission with another marketing agent, and at other 
       times he would keep the entire commission for himself and GML.  
       Plaintiffs would only be paid if their efforts resulted in a charter, meaning 
       that if no charter was signed, no commission was paid to Plaintiffs 
       regardless of how much work they put into marketing the GLOBAL 
       EXPLORER.  The Oral Contract was terminable at will by either party.  
       Plaintiffs were free to provide marketing services to other vessels while 
       the Oral Contract was in force.  The Oral Contract did not include any 
       agreement to indemnify or defend Plaintiffs in any way for any reason.

In contrast, Stabbert stated:

       In late 2002, I entered into an oral contract with Global Explorer LLC to 
       market the vessel, exclusively, in the United States and Mexico for a 
       commission of 5% on all charter revenues.  The vessel was marketed 
       initially to U.S. companies, even prior to completion of her certificates. . . . 
       My oral agreement with Global Explorer LLC was to find customers that 
       could utilize the vessel and to educate the customer with regards to the 
       operational capabilities of the Vessel.  I would then provide Frank Steuart 
       with the customer name and the general outline of customer 
       requirements.  If a charter was eventually entered into with the customer, I 
       would receive a 5% commission on the charter and all extensions for use 
       of the vessel, regardless of what project it performed for the customer.  
       My obligation was to find the customer and to create a successful 
       dialogue between the customer and the vessel owners.  I would then 
       make the customer available to Frank Steuart to arrange the terms and 
       conditions of the actual charter and to complete the preparation of a 
       master time charter.

       Stabbert stated that he started negotiations with Castro in 2003.  In 2006 and 

2007, Julio Castro was the executive vice president             for Diavaz.  Ultimately,  his 

communications led to a November 2006 draft  charter agreement for Castro.  In 

                                                  10 

No. 66619-3-I/11

depositions, Steuart did not dispute that Stabbert was in contact with Diavaz in 2006.  

       Then, in July 2007, Castro wrote an e-mail to Stabbert: "This is to confirm our 

interest in the [Global] Explorer for a six month contract wi[t]h 2 one month extensions.  

Please confirm availability and day rate."  Castro apparently did not know that Stabbert 

had been fired.

       Nevertheless, in a declaration, Steuart stated that, "[a]ll of Castro's negotiations 

to charter the GLOBAL EXPLORER were with me exclusively.  Stabbert was not 

involved in negotiating the Diavaz/GE [charter] in any way."  In a supporting 

declaration, Castro stated:

       I first became aware of the GLOBAL EXPLORER at some point prior to 
       late 2006.  I recall that my first contact from the GLOBAL EXPLORER was 
       Frank Steuart, and he has been my primary contact with the GLOBAL 
       EXPLORER since then.  I have known Richard Stabbert for many years.  I 
       do not recall ever negotiating any terms or charters with Richard Stabbert 
       involving the GLOBAL EXPLORER.  My negotiations involving any 
       prospective charters of the GLOBAL EXPLORER have always involved 
       Frank Steuart, and never involved Richard Stabbert.

He further stated:

       Shortly before the Diavaz/GE [charter] was signed in early August 2007, I 
       was contacted by Frank Steuart, who informed me the GLOBAL 
       EXPLORER was available for Charter.  Following that contact, Frank 
       Steuart and I negotiated the Diavaz/GE [charter] fairly quickly.  Diavaz 
       had not considered the GLOBAL EXPLORER for the 2004 Diavaz/PEMEX 
       Contract prior to the summer of 2007, and Richard Stabbert and I never 
       had any negotiations regarding the chartering of the GLOBAL 
       EXPLORER for any work on the 2004 Diavaz/PEMEX contract.  

       Global claims that the August 2007 charter agreement was for a different project 

than the one Stabbert was negotiating with Diavaz in 2006.  Castro explains that in 

2006, Diavaz was bidding on two contracts with PEMEX, a Mexican state-owned oil 

                                                  11 

No. 66619-3-I/12

company.  Those contracts required the use of a moon pool, which is an access way 

that allows dive operations to occur through the bottom of the vessel, rather than from 

the deck.  Indeed, Stabbert stated he was working on a contract that required a moon 

pool.  And, the draft charter from 2006 mentioned the installation of a moon pool, which 

the Global Explorer did not have.  

       But, Castro explained, the August 2007 charter stemmed from a 2004 PEMEX 

contract that did not require a moon pool.  That assertion is consistent with the fact that 

the August 2007 charter does not contain a moon pool requirement.  

       The charter agreements themselves do not mention any specific projects or 

contracts.  Thus, the only evidence tying the charters to specific PEMEX contracts is 

Castro's declaration.  But, some of Castro's other statements are contradictory.  Castro 

claimed he never spoke with Stabbert about the Global Explorer, however there is at 

least one e-mail from Castro to Stabbert inquiring about the vessel's availability.  This 

raises an issue of credibility.  

       It is not enough to "'merely recite the incantation, "Credibility," and have a trial 

on the hope that a jury may disbelieve factually uncontested proof.'"  Howell v. Spokane 

& Inland Empire Blood Bank, 117 Wn.2d 619, 627, 818 P.2d 1056 (1991) (quoting 

Amend v. Bell, 89 Wn.2d 124, 129, 570 P.2d 138 (1977)).   But, Stabbert does not 

merely recite "credibility."  Rather, Stabbert alleged in his declarations a different 

version of the oral contract that would entitle him to a commission.  He claims that he 

created a successful dialogue between Diavaz and Global, and that that is all he had to 

do to be entitled to a commission.  He also asserts that he had the exclusive right to 

                                                  12 

No. 66619-3-I/13

market the Global Explorer.  Diavaz and Global's initial contact undisputedly occurred 

while Stabbert was still employed by Global.  The evidence in the record does not 

establish conclusively that Stabbert could not have been a procuring cause of the 

specific charter.  In a light most favorable to Stabbert, there are material issues of fact

regarding whether Stabbert was the procuring cause of the charter.  On the issue of the 

oral agreement, summary judgment was improper.

       B. Written Agreement

       A party repudiates a contract when there is "a positive statement or action by the 

promisor indicating distinctly and unequivocally that he either will not or cannot 

substantially perform any of his contractual obligations."  Lovric v. Dunatov, 18 Wn. 

App. 274, 282, 567 P.2d 678 (1977).  An intent not to perform may not be implied from 

doubtful and indefinite statements that performance may or may not take place.  

Wallace Real Estate Inv., Inc. v. Groves, 124 Wn.2d 881, 898, 881 P.2d 1010 (1994).

       Stabbert argues that there was a genuine issue of material fact regarding 

whether Global and Deepwater repudiated the written agreement.  He claims that, in 

addition to lost commissions, he lost the right to use, distribute, market, and install 

Deepwater's technology.  

       Stabbert offers various explanations for the alleged repudiation, but very limited 

evidence.  For instance, he places significant emphasis on Global's and Deepwater's 

economic motives to repudiate.  But, economic motive would only explain why Global 

and Deepwater repudiated the contract.  It is not evidence that Global and Deepwater 

actually repudiated the contract.  Moreover, Stabbert has not provided any evidence 

                                                  13 

No. 66619-3-I/14

that suggests Global or Deepwater actually profited from the alleged repudiation.

       Stabbert also argues that, in addition to seeking commissions, he alleged in his 

complaint that he lost licensing rights, and that Deepwater failed to honor Stabbert's 

exclusive right to market and install the technology.  But, he does not assert that he 

attempted to bid or perform any contracts, let alone that he did so and Deepwater 

refused to provide the technology.  What Stabbert did or did not allege in his complaint 

is immaterial if he has no evidence that he actually lost his rights under the contract.  

       Finally, Stabbert mentions in passing that the repudiation was an attempt to 

avoid paying commissions under the oral agreement.  It is true that Global terminated 

the oral agreement a week after the e-mail from Steuart to Deepwater.  But, nothing in 

the written agreement mentions the oral agreement or the relationship between Global 

and Stabbert.  Stabbert has not articulated any duty that Global owed him under the 

written agreement.  The agreement entitled Stabbert and/or Global to bid and perform 

contracts using Deepwater technology.  It did not say that Stabbert could only use 

Global's vessel, or that Global was required to let Stabbert use its vessel.  Global's 

decision not to exercise its rights to bid and perform any contracts using Deepwater 

technology did not affect Stabbert's legal rights to do so. 

       Thus, the only evidence of repudiation is limited to the notice of default from 

Deepwater and the e-mail from Steuart to Deepwater.  But, after the notice of default,

Deepwater determined it would not terminate the agreement at that time.  Stabbert is 

unable to rebut that assertion.

       The e-mail from Steuart to Deepwater is no more helpful for Stabbert.  It did not 

                                                  14 

No. 66619-3-I/15

definitively say that any of the parties would not perform their obligations.  Rather, it 

indicated that "things aren't progressing," that Steuart knew Deepwater had "an interest 

in terminating the agreement," and that, if they did terminate the agreement, then

Steuart and Deepwater should talk about a deal in the future.  The e-mail may indicate

that Steuart had a desire not to  enforce the contract, but indicates nothing about 

Deepwater's intention.  Britton indicated in response that he would call Steuart, not that 

he agreed termination was desirable.  This is not an unequivocal mutual expression of 

an unwillingness to perform contractual obligations by Steuart and Deepwater.  

       In March 2009 Stabbert e-mailed Deepwater to express that he was ready to sell 

Deepwater technology.  That e-mail indicates that he did not consider the contract to 

have been repudiated.  Further, he has not presented any evidence that, prior to March 

2009, he contested the alleged repudiation or informed Global and Deepwater that he 

believed they had repudiated the contract.

       The e-mail from Steuart could not speak for Deepwater, and Deepwater never 

responded to the substance of Steuart's message.  Britton and Stabbert stated that

they never communicated after the e-mail.  And, Stabbert has not alleged that Britton or 

anyone else at Deepwater ever told him the agreement was terminated.  Deepwater's 

mere  silence was not a positive statement or action indicating its unwillingness to 

perform its contractual obligations.

       On the issue of the written services agreement, summary judgment was proper.  

There is no genuine issue of material fact regarding whether Global and Deepwater 

repudiated the written agreement.  

                                                  15 

No. 66619-3-I/16

   II. Consideration of Declarations

       Stabbert alleged in his motion for reconsideration that the trial court failed to 

precisely specify the documents it considered.  He claimed that the trial court's failure 

to do so was an irregularity that prejudiced him because the record for review was not 

adequately specified.  In particular, he claimed that the summary judgment orders did 

not specify whether or not the court considered the October 1 Stafne declaration or the

October 3 Stabbert declaration.  

       In its order denying Stabbert's motion for reconsideration, the trial court clarified

that it did not consider "any material not listed in the Orders Granting Summary 

Judgment."      The orders granting summary judgment specifically enumerated the 

documents the trial court considered.  The enumerated documents did not include the 

October 1 Stafne declaration or the October 3 Stabbert declaration.  Still, Stabbert 

argues that the trial court's ruling is ambiguous because the court indicated that it 

considered "the records and files herein."  Stabbert's reading is untenable.  The trial 

court specified precisely what it considered.  The more specific statement is not 

trumped by the general statement that it considered the record.  Consequently, 

Stabbert's argument that he was prejudiced because the summary judgment record was 

not defined is without merit.  

       Alternatively, Stabbert argues that the trial court erred if it did not consider the 

October 1 Stafne declaration or the October 3 Stabbert declaration.  Global argues it 

was within the trial court's discretion to not consider untimely declarations that were 

filed after the summary judgment hearing.  But, Stabbert correctly points out that there 

                                                  16 

No. 66619-3-I/17

is nothing in the record indicating that Global or Deepwater objected to the timeliness 

of the declarations.  We do not reach the issue of the timeliness of the filings.

       Regardless of the trial court's reasoning, Stabbert's argument  on appeal is 

limited to a conclusory statement that the declarations should have been considered.  

He states that the October 1 Stafne declaration, which contained additional Steuart 

deposition testimony, indicated that "Steuart's testimony in all the depositions and 

declarations has been inconsistent."  He offers no citation to specific portions of the 

declarations.  He does not explain why the declarations would have precluded 

summary judgment.  He does not articulate the standard of review or the specific rule 

that the trial court should have granted reconsideration under.  His legal argument is 

limited to a statement that a "party may submit additional evidence after a decision on 

summary judgment has been rendered, but before a formal order has been entered."  

Meridian Minerals Co. v. King County, 61 Wn. App. 195, 202-03, 810 P.2d 31 (1991).  

That argument alone, without any mention of what the additional declarations would 

have shown,     is insufficient to show the trial court abused its discretion by not 

considering the declarations or granting reconsideration.

       We note that there is some confusion surrounding the October 3 Stabbert 

declaration.  In its order denying Stabbert's motion for reconsideration, the trial court 

indicated that it did not, for purposes of summary judgment, consider "the Declaration 

of Mr. Stafne dated 10/3/10."  It further explained that the declaration and attached 

exhibits contained substantial amounts of inadmissible hearsay and that the admissible 

portions did not establish any genuine issues of material fact.  Stabbert claims that 

                                                  17 

No. 66619-3-I/18

does not make sense because there is no October 3 Stafne declaration, only an 

October 3 Stabbert declaration.  Global responds that the trial court must have been 

referring to a Stafne declaration filed on October 4 in support of Stabbert's motion for 

sanctions.  That declaration indicates on the first page that it was signed by Stafne on 

October 3.  

       Global further points out that it is unclear whether the October 3 Stabbert 

declaration was even filed before the October 11 orders granting summary judgment.  

Indeed, the first time it appears in the appellate record is as an attachment to a 

declaration filed in support of Stabbert's motion for reconsideration on October 20.  

       Nevertheless, we have reviewed the October 1 Stafne declaration, the October 3 

Stabbert declaration, and the October 4 Stafne declaration.  Even if not untimely filed, 

none of those declarations, together with their attachments, raise any additional issues 

that would have precluded summary judgment or justified reconsideration.  Accordingly, 

any error was harmless.

   III. Sealed Declarations

       Stabbert's motion for reconsideration also  alleged that sealing his attorneys' 

declarations was an irregularity that prejudiced him and justified reconsideration.  On 

appeal, he argues that his sealed declarations were sealed to protect his attorney-

client privilege, that he is willing to waive that privilege, and that he should be able to 

see the documents.  He also filed a motion to modify the commissioners July 25, 2011 
ruling denying his motion to unseal the declarations.1

       1  Together with his motion to modify, Stabbert requests that we compel Global 
to comply with RAP 10.3 and provide additional citations to the record.  Stabbert's 
request is denied.

                                                  18 

No. 66619-3-I/19

       GR 15 provides the circumstances under which court files may be sealed.  The 

trial court must hold a hearing and enter findings that the sealing is justified by an 

identified compelling privacy or safety concern.  GR 15(c)(2).  Further, the right to a 

public trial is guaranteed by article I, section 10 of the Washington State Constitution.  

That right may be limited only to protect significant interests, and any limitation must be 

carefully considered and specifically justified.  Indigo Real Estate Servs. v. Rousey, 

151 Wn. App. 941, 948, 215 P.3d 977 (2009).  When determining whether to seal a file, 

the trial court should (1) consider whether the proponent of sealing made a showing of 

the need for closure; (2) give anyone present the opportunity to object; (3) analyze 

whether the method from curtailing access is both effective and the least restrictive 

method; (4) weigh the competing interest of the parties and the public and consider 

alternative methods; and (5) make a decision that is no broader in application or 

duration than is necessary to serve its purpose.  Seattle Times Co. v. Ishikawa, 97 

Wn.2d 30, 37-39, 640 P.2d 716 (1982).

       Here, the trial court clearly indicated that it did not consider the attorneys' 

declarations for purposes of summary judgment.  We presume that judges are capable 

of finding adjudicative facts fairly while ignoring incidental influences.  Harris v. 

Hornbaker, 98 Wn.2d 650, 666, 658 P.2d 1219 (1983).  The trial court considered the 

declarations only for purposes of evaluating the attorneys' withdrawal, and Stabbert 

fired the attorneys before the trial court could even make that determination.  Sealing 

the declarations did not prejudice Stabbert, because they were not considered for 

purposes of summary judgment.  It follows that it was not an abuse of discretion to deny 

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the motion for reconsideration, because sealing the declarations was not an irregularity 

that prejudiced Stabbert.

       Nevertheless, the trial court did not follow the required procedures for sealing 

the declarations.  Specifically, it did not hold a hearing and enter findings that satisfy 

either GR 15 or the Ishikawa factors.  We remand for the trial court to either hold a 

hearing and enter appropriate findings, or unseal the declarations.  See Indigo, 151 

Wn. App. at 951.

   IV. Motion for Sanctions

       The trial court held a hearing on the summary judgment motions on October 1.  

Three days later, on October 4, Stabbert filed a motion for discovery sanctions against 

Deepwater.     The motion requested that the trial court order sanctions for failing to 

respond to interrogatories, compel Deepwater to produce certain documents, and order 

Deepwater to sign discovery verification pages pursuant to the civil rules.  The motion 

was set to be heard on October 12.  On October 11, the trial court granted the motions 

for summary judgment.

       On January 4, the day it denied the motion for reconsideration, the trial court 

denied the motion for sanctions.  It concluded that Stabbert did not comply with CR 

26(i), which "precludes this Court from 'entertaining any motion or objection with 

respect to [r]ules 26 through 37 unless counsel have conferred with respect to the 

motion or objection.'"  

       Stabbert correctly points out that CR 26(i) "'should be read as permitting a trial 

court to not consider a motion to compel discovery unless counsel have conferred and 

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the movant has certified that fact.  CR 26(i) should not be read as prohibiting a trial 

court from exercising its discretion to waive a conference and certification if, under the 

particular circumstances, that will fairly and sensibly streamline the progress of the 

case.'"  Amy v. Kmart of Wash. LLC, 153 Wn. App. 846, 853, 223 P.3d 1247 (2009) 

(quoting Case v. Dundom, 115 Wn. App. 199, 205, 58 P.3d 919 2002) (Morgan, J., 

Dissenting)).

       But, Stabbert did not file his motion for sanctions until after the hearing on 

summary judgment had been held.  He did not request that the trial court shorten the 

time for the motion for sanctions, nor did he request that the trial court continue the 

motion for summary judgment until after it had heard the motion for sanctions.  

Consequently, the trial court granted Deepwater's motion for summary judgment on 

October 11, a day before the motion for sanctions was set to be heard.  At that point, 

the motion for sanctions was moot.

   V. Attorney Fees

       Deepwater requests attorney fees pursuant to the services agreement and RAP 

18.1.  The services agreement provides that "the substantially prevailing party" in any 

action arising under the agreement shall be entitled to reasonable attorney fees at trial 

and appeal.  As the prevailing party, we award Deepwater reasonable attorney fees for 

this appeal.

       We affirm in part, reverse in part, and remand for further proceedings.

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WE CONCUR:

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