§46.7SIGNIFICANT AUTHORITIES
There are few cases specifically citing CR 46. To understand the scope of exceptions, therefore, this section focuses on specific areas of the law in which courts have applied the rule that the grounds for an exception must be clearly presented to the trial court.
(1)Motion practice
Motion practice usually raises preservation of error issues relating to whether materials are properly before the court. As illustrated in the cases below, those objecting to materials before the court must also bring a motion to strike pursuant to CR 12(f).
A motion to strike offensive materials in a pleading must be made within 20 days after the service of the pleading containing the offensive materials. CR 12(f). Aparty's failure to move to strike offensive material in a pleading usually waives the objection. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 (1979). To preserve for appeal a claim that an affidavit is defective, a party must lodge an objection that specifies the deficiency and must move to strike the affidavit before the trial court's entry of summary judgment. Smith v. Showalter, 47 Wn.App. 245, 734 P.2d 928 (1987); Bonneville v. Pierce County, 148 Wn.App. 500, 509, 202 P.3d 309 (2008), review denied, 66 Wn.2d 1020 (2009).
Special care should be taken when an affidavit or deposition testimony is submitted in a case in which issues may arise under the Deadman's Statute, RCW 5.60.030. Failing to object to deposition testimony presented as part of a summary judgment waives the protection of the statute. Botka v. Estate ofHoerr, 105 Wn.App. 974, 981, 21 P.3d 723 (2001).
(2)Disqualification of trial judge
To disqualify a judge as a matter of right, a party must file an affidavit of prejudice in a timely fashion, which is before the court has made any discretionary ruling. RCW 4.12.050; In re Recall Charges Against Lindquist,n2Wn.2dl20,130-31,258P.3d9(2011);RiverParkSquare, L.L.C, 143 Wn.2d at 80; State v. Hansen, 107 Wn.2d 331, 333-34, 728P.2d593 (1986). See §40.6(3) in Chapter 40. (Rule 40. Assignment of Cases) of this deskbook.
In Henriksen v. Lyons, 33 Wn.App. 123, 652P.2d18 (1982), review denied, 99 Wn.2d 1001 (1983), the court refused to consider the argument of an appellant seeking to reverse a judgment on the grounds that the judge failed to disqualify himself. The court reasoned that the appellant had waived his right to review on that issue because he failed to bring the facts warranting recusal to the court's attention and to seek that relief. Accord MacCormick v. MacCormick, 513 A.2d 266 (Me. 1986) (issue of obligation to recuse based on improper ex parte communication with attorney not preserved for appeal when, with knowledge of communication, appellant failed to raise issue until over a month later).
In Buckley v. Snapper Power Equipment Co., 61 Wn.App. 932, 939, 813 P.2d 125, review denied, 118 Wn.2d 1002 (1991), Division I of the Court of Appeals specifically rejected an attempt to disqualify a trial judge that was made together with a motion for reconsideration. The court ruled that the motion was not timely and was thus waived. Id. at 940.
(3)Evidentiary rulings
Raising exceptions in the context of evidentiary rulings is discussed below.
(a)General rules
A party objecting to the admission or exclusion of evidence must comply with ER 103, which requires specific exceptions, the use of a motion to strike, and offer of proof when appropriate. ER 103 provides as follows:
RULE 103. RULINGS ON EVIDENCE
(a)Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1)Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike is made, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2)Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(b)Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may direct the making of an offer in question and answer form.
(c)Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d)Errors Raised for the First Time on Review. [Reserved -See RAP 2.5 (a).]
Even in death penalty cases, an evidentiary error is not preserved for appeal unless an objection was made at trial. State v. Davis, 141 Wn.2d 798, 850,10 P.3d 977 (2000). A separate objection must be made by each party. Id. Also, all grounds for the objection must be given. The court will not reverse on a theory not presented to the trial court. Reitz v. Knight, 62 Wn.App. 575, 584, 814 P.2d 1212(1991).
Generally, a trial court's ruling on admissibility of evidence is reviewed only for an abuse of discretion. Kimball v. Otis Elevator Co., 89 Wn.App. 169, 172, 947 P.2d 1275 (1997).
Procedurally, both an objection and the motion to strike must be timely. ER 103(a)(1); B.C. Ministry of Health v. Homewood, 93 Wn.App. 702, 714, 970P.2d381 (1999), review denied, 140 Wn.2d 1015 (2000); see also Lundberg v. Baumgartner, 5 Wn.2d 619, 622, 106P.2d566 (1940) (objection should be made as soon as the obj ectionable nature of response becomes apparent); State v. Leavitt, 49 Wn.App. 348, 357, 743P.2d270 (1987), aff'd, 111 Wn.2d 66 (1988) (objection one day after hearsay was admitted too late).
If the witness answers prior to the objection or in spite of it, a motion to strike should be made as well as a request for an instruction to disregard the evidence. State v. Stevens, 58 Wn.App. 478, 493-94, 794P.2d38, review denied, 115 Wn.2d 1025 (1990).
If evidence is admitted for a limited purpose, the party must request a limiting instruction or the evidence will be relevant for other purposes as well. State v. Russell, 111 Wn.2d 118, 123-24, 249P.3d604 (2011) (holding that if a limiting instruction is not requested for admitted ER 404(b) evidence, a trial court is not required to give a limiting instruction sua sponte); Lockwood v.A.C & S., Inc., 109 Wn.2d 235, 255-56, 744P.2d605 (1987).
ER 103(a)(2) requires that a party make an offer of proof to preserve error relatingto the exclusion of admissible evidence. The rule mandates that the substance of the evidence must be made known to the court by offer of proof. The rule reflects prerule cases discussing offers of proof. See Tomlinson v. Bean, 26 Wn.2d 354, 361-62, 173P.2d
972 (1946). An offer of proof (1) informs the court of the legal theory under which the offered evidence is admissible; (2) informs the court of the specific nature of the offered evidence so that the court may judge its admissibility; and (3) creates a record adequate for appellate review. Walker v. Bangs, 92 Wn.2d 854, 861...
