Lutz Tile, Inc. v. Krech

Citation: 151 P.3d 219Docket: 33573-5-II

Court: Court of Appeals of Washington; January 30, 2007; Washington; State Appellate Court

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Paul and Kathy Krech contested the trial court's admission of an expert report into evidence, arguing it was improperly admitted under the "catch-all" provision of ER 904. The report, authored by Eric Astrachan, assessed the color uniformity of tiles installed in the Kreches' home, concluding that the color variation was within industry standards. The trial court admitted the report because the Kreches failed to object within the specified fourteen days after receiving notice from Lutz Tile, Inc., who was suing the Kreches for breach of contract after they refused to pay for the tile work due to dissatisfaction with the color variation.

During the trial, multiple witnesses, including Lutz and the tile installers, testified that the color variations were normal. The court noted that all experts and relevant parties, including Kathy Krech, had initially been satisfied with the installation until Paul Krech expressed dissatisfaction. Ultimately, the court found the tile variations to be normal and within industry standards, ruling in favor of Lutz and requiring the Kreches to pay the outstanding amount due. The court's decision relied heavily on expert testimony and photographic evidence, concluding that some color variation is inherent in tile installations. Lutz argued the report was properly admitted due to its relevance and credibility, but the court expressed disagreement with this assertion.

Interpretation of court rules aligns with the principles used for statutory interpretation, emphasizing the intent of the drafting body. Clear language in rules is given its plain meaning. ER 904 aims to expedite the admission of documentary evidence, allowing certain documents to be admissible and authentic prior to trial unless opposed by the other party within the rule's timing framework. In civil cases, admissible documents under ER 904(a) include:

1. Medical records or bills from healthcare providers.
2. Bills for drugs or medical appliances.
3. Property damage estimates and corresponding receipts.
4. Weather or traffic reports.
5. Various forms of documentary evidence like photographs or maps.
6. Any other relevant document that has equivalent trustworthiness.

The "ejusdem generis" principle restricts general terms to items similar to specific terms listed. There is no existing authority interpreting ER 904(a)(6), and cases indicate the rule pertains primarily to routine documentary evidence rather than documents that provide conclusions or opinions. The Washington Supreme Court clarifies that documents intended to prove conclusions are inadmissible. Distinctions are made between documents prepared for medical treatment, which are covered by ER 904, and those prepared for forensic purposes, which are not. ER 904 is designed for objective documentary evidence where cross-examination is unnecessary, excluding subjective documents containing opinions or conclusions that require scrutiny. The examples in ER 904(a)(1-5) consist of factual documents, and the catch-all provision similarly applies to documents of factual nature, not opinions.

Astrachan's report, which included his opinion on tile color variation, was improperly admitted under the catch-all provision of ER 904(a)(6) because it contained conclusions that should not have been allowed. The court rejected Lutz's claim that any trustworthy document related to a material fact could be admitted under this rule. Although the admission was an error, it was deemed harmless and not prejudicial since the trial court based its decision on additional substantial expert testimonies from Lutz, two tile installers, and a national distributor, all of which supported the outcome. The Kreches contended that the report was inadmissible due to Astrachan's qualifications, hearsay issues, and lack of proper notice about its admission. However, these challenges were not addressed further as the court concluded that the report's admission was erroneous but did not affect the trial's fairness. Lutz requested attorney fees for what he claimed was a frivolous appeal, but the court ruled the Kreches' appeal was not frivolous due to genuine uncertainties regarding the evidentiary rule applied, thus denying the request for fees. The decision to affirm the trial court's ruling was unanimous among the judges.