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McCormick v. Lake Washington School District12/6/1999
ied McCormick's motion for reconsideration.
ANALYSIS
In reviewing a summary judgment order, the Court of Appeals engages in the same inquiry as the trial court, evaluating the matter de novo. Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993). The appellate court considers the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c); Kruse, 121 Wn.2d at 722.
We first consider whether McCormick's affidavit contradicts her prior sworn deposition. McCormick says she filed the declaration to clarify specific facts and circumstances regarding her employment status, and that the declaration does not contradict her earlier deposition. The District argues that McCormick's declaration contradicts her recorded deposition on numerous salient issues. The District further argues that McCormick's declaration was created solely to introduce an issue of material fact where there is none.
Self-serving affidavits contradicting prior depositions cannot be used to create an issue of material fact. "When a party has given clear answers to unambiguous {deposition} questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Klontz v. Puget Sound Power & Light Co., 90 Wn. App. 186, 192, 951 P.2d 280 (1998) (citing Marshall v. AC & S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989)). But in Safeco Ins. v. McGrath, 63 Wn. App. 170, 817 P.2d 861 (1991), the court found the above rule inapplicable where the subsequent sworn testimony was not in "flat contradiction" to previous testimony. In Safeco, the subsequent testimony was used to offer explanation of the prior sworn statements. 63 Wn. App. at 174-75.
McCormick's declaration presents a different account than the prior deposition. First, when asked whether Anderson personally had authority to offer her a position, McCormick answered: "I don't know about that." In her declaration, however, McCormick says unequivocally that Anderson had apparent authority. Second, when asked whether the alleged offer of employment was a simple question, "{d}o you still want the job?" and nothing more specific, McCormick answered "yes." In her declaration, McCormick attests that Becky Anderson expressly offered her the position of .5 special education teacher. Finally, McCormick claims in her declaration that after the District received the negative references, Anderson told her that the offer of "permanent employment" was "revoked" immediately. But McCormick does not mention this in her deposition. In fact, in her deposition she said that Anderson had mentioned that "there was no way they could offer me anything . . . ."
McCormick's declaration presents new information and a different recollection of events. Her declaration represents a change in testimony and does not merely explain her prior deposition. McCormick's declaration is in "flat contradiction" to her deposition and therefore may not be used to determine whether issues of material fact exist.
McCormick's claims turn on whether she was a permanent employee. McCormick argues that the court's decision to grant summary judgment was erroneous because Anderson had apparent authority to hire permanent employees and made an offer of employment to her. McCormick argues that a verbal contract was formed. The District, on the other han
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