Opinion
No. 61362-6-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 07-2-02370-1, Steven J. Mura, J., entered February 8, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Larry Bevins appeals from the trial court's order vacating the default judgment he obtained in his suit for breach of contract against Robert Knapp. Because the trial court did not abuse its discretion in determining that Knapp had a prima facie defense to Bevins' claims and his failure to respond to the summons was the result of excusable neglect, we affirm. We also affirm the trial court's reasonable decision to deny an award of terms to either party.
FACTS
Larry and Sue Bevins (Bevins) hired Robert Knapp to construct a canvas top for their 43-foot boat for $9,000. When Knapp delivered the canvas, Bevins paid the final bill but asked Knapp to make certain repairs. Knapp agreed to provide additional work on the canvas at no extra charge.
Later, Bevins caused Knapp to be personally served with a letter, a summons, and a complaint. The letter, signed by Bevins' attorney, states in pertinent part:
We have been retained to represent Larry and Susan Bevins. To that end, enclosed is a summons and complaint . . . related to the botched canvassing job done by you on the Bevins' Bayliner some time ago. As you can see, the Bevins have authorized us to file the lawsuit seeking $9,000 plus interest and fees, which will easily exceed $20,000 by the time this matter comes before the Court.
However, before filing the lawsuit, the Bevins wanted to give you a final opportunity to resolve this matter. In doing so, they have authorized us to waive attorney fees and interest in exchange for payment of $9,000 so long as such payment is received by this firm within 20 days of the date this letter and the summons and complaint are served upon you.
In his complaint for breach of contract, unjust enrichment, and/or negligence, Bevins alleged that the canvas "leaked in many, many places, including the back drop leaking on to the cabin door itself and leaks inside the salon running down the wall." The canvas was missing "cutouts on the bridge side windows" as promised and there were "ripped outsnaps on the drop back." According to the complaint, Bevins requested repairs and Knapp agreed, but over the next several months, Knapp failed to make the repairs. Bevins demanded the return of the original canvas or a refund, but Knapp refused.
Knapp failed to respond or appear in the case. Bevins obtained a default judgment. Bevins' attorney sent Knapp a copy of the default judgment and demanded payment. Knapp moved to vacate the default judgment arguing that the attorney letter was misleading and that he had intended to respond to the suit when it was actually filed.
The trial court found:
As a result of [the attorney's] letter, Defendant reasonably thought he had not been sued, and would be given notice of any lawsuit filed against him, and an opportunity to defend against the Bevins' claims. This constitutes excusable neglect.
The trial court also found that Knapp acted with due diligence in hiring an attorney and filing a motion to vacate the default judgment within 30 days of receiving notice of it; that he presented a prima facie defense to the complaint; and that Bevins would not suffer substantial hardship if Knapp were allowed to defend the matter. The trial court set aside the default judgment and refused to award fees and costs to either party.
Bevins appeals.
DISCUSSION
As a preliminary matter, Bevins has filed a motion to strike Knapp's pro se respondent's brief, contending that Knapp filed the brief for the improper purposes of delay and to put facts not supported by the record before this court. We deny the motion to strike. This court is fully capable of determining whether the record supports the parties' contentions.
We review a trial court's decision on a motion to vacate a default judgment for abuse of discretion. Showalter v. Wild Oats, 124 Wn. App. 506, 510, 101 P.3d 867 (2004). To determine whether a defendant is entitled to vacation of a default judgment under CR 60, courts consider the following four factors: (1) whether there is substantial evidence to support a prima facie defense to the plaintiff's claim; (2) whether the moving party failed to timely appear in the action due to mistake, inadvertence, surprise, or excusable neglect; (3) whether the moving party acted with due diligence after notice of entry of the default judgment; and (4) whether the nonmoving party will suffer substantial hardship. White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968).
Bevins claims that the trial court erred in its consideration of the first two factors. Bevins first contends that the trial court abused its discretion in determining that Knapp presented substantial evidence of a prima facie defense. In determining whether evidence exists to support a prima facie defense, the trial court views the evidence, and the reasonable inferences therefrom, in the light most favorable to the moving party. Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 835, 14 P.3d 837 (2000). "[T]he trial court need only determine whether the defendant is able to demonstrate any set of circumstances that would, if believed, entitle the defendant to relief." TMT Bear Creek Shopping Ctr., Inc. v. Petco Animal Supplies, Inc., 140 Wn. App. 191, 203, 165 P.3d 1271 (2007).
Bevins contends that Knapp's declarations were inadmissible and the trial court erred by considering them. In his papers before the trial court, Bevins invited the court to "closely examine" the declarations and "compare them to" Bevins' declaration to determine whether Knapp presented a prima facie defense. Bevins did not ask the trial court to rule on the admissibility of the declarations and the trial court obviously considered them as Bevins requested. Under RAP 2.5(a), we need not consider Bevins' challenge to the admissibility of the declarations, interposed for the first time on appeal. "It is our duty to review evidentiary rulings made by the trial court; we do not ourselves make evidentiary rulings." Jacob's Meadow Owners Ass'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 756, 162 P.3d 1153 (2007).
With his motion to vacate the default judgment, Knapp filed a declaration stating that after he delivered the canvas, he agreed to "tighten the `front screen' by adjusting the zipper, tighten the rear portion of the top by shortening the canvas and remove and modify both side windows by adding a 3/4" binding on the `smiley faces.'" He also stated that "[a]t no time prior to this lawsuit, did Mr. or Mrs. Bevins mention or complain about any other aspect of my work, nor did they indicate the canvas cover leaked." Knapp stated that he had inspected the canvas and found that "[t]here were no visible defects in my work and there was no evidence the canvas cover was leaking. In light of the recent . . . windstorm, it would not have surprised me to see ripped snaps, but none were visible."
Knapp also filed the declaration of James Dunstone, a professional marine canvas fabricator who inspected the canvas. Dunstone stated, "I could find no defects in the workmanship of the canvas cover for the boat, no ripped outsnaps on the cover, and Mr. Knapp's work appeared to be consistent with the standards of the trade. It also did not appear to be leaking, although there was condensation on the inside of the canvas top, which is normal."
Viewed in the light most favorable to Knapp, these declarations allow for a reasonable inference that the cover was properly constructed and did not leak as a result of poor craftsmanship. Under these circumstances, the trial court did not abuse its discretion by concluding that Knapp presented a prima facie defense to the complaint.
Bevins next claims that the trial court abused its discretion by ruling that Knapp's failure to timely appear was the result of excusable neglect. In his declaration, Knapp stated:
Even though the summons and complaint were enclosed, I understood [the attorney's] letter to mean that a lawsuit had not been started. Based on the letter, I thought that I would be given notice of the filing of the lawsuit, so that I could then hire an attorney to defend myself. . . . Because I believed [the attorney] when he said a lawsuit had not been filed, I ignored the summons and complaint, and considered it all part of a threat to sue me, should I fail to pay the $9,000 within 20 days.
Bevins contends that Knapp had no excuse for failing to read the plain language of the summons. But as indicated in his declaration, Knapp relied on the letter alone to conclude that the lawsuit had yet not been filed and he would receive notice of the suit when it was filed. And "ambiguous, apparently inconsistent written communications served with a summons and which have the potential for misleading the defendant into not timely responding to the complaint warrant the vacation of a default judgment later taken." Wilma v. Harsin 77 Wn. App. 746, 750, 893 P.2d 686 (1995).
The attorney's letter stated that Bevins "had authorized" the filing of the suit, but wanted to give Knapp "a final opportunity to resolve" the matter "before filing the lawsuit." The trial court correctly determined that this language has the potential for misleading a defendant into not timely responding to the complaint. Under these circumstances, the trial court did not abuse its discretion in concluding that Knapp's failure to respond was the result of excusable neglect. Thus, Bevins fails to demonstrate any abuse of discretion in the trial court's order vacating the default judgment.
Bevins also assigns error to the trial court's decision denying his request for attorney fees and costs. Citing CR 55(c)(1), Bevins contends that the imposition of terms is a prerequisite to vacating the judgment. The plain language of the rule does not support this assertion. CR 55(c)(1) provides that the court may set aside a default judgment "[f]or good cause shown and upon such terms as the court deems just." Bevins fails to cite any authority to support his reading of this rule.
The cases Bevins cites to do not support his claim that a trial court abuses its discretion by denying a request for fees. See Pamelin Indus., Inc. v. Sheen-U.S.A., Inc., 95 Wn.2d 398, 403, 622 P.2d 1270 (1981) (where default judgment had been granted as a CR 37 sanction for discovery violations, trial court did not abuse discretion by setting aside default judgment on condition that defendants pay plaintiffs' attorney fees and post $50,000 performance bond); Wachovia SBA Lending v. Kraft, 138 Wn. App. 854, 859, 158 P.3d 1271 (2007), review granted, 163 Wn.2d 1011 (2008) (attorney fee award is mandatory under RCW 4.84.330 where (1) action is on a contract, (2) contract contains unilateral attorney fee provision, and (3) there must be a "prevailing party"); Friebe v. Supancheck, 98 Wn. App. 260, 269, 992 P.2d 1014 (1999) ("Because we reinstate the default judgment in full, we vacate the award of terms."); Berger v. Dishman Dodge, Inc., 50 Wn. App. 309, 748 P.2d 241 (1987) (award of attorney fees not challenged on appeal).
"[A] trial court may award terms to either a moving or opposing party when considering a motion to set aside a default judgment." Housing Auth. of Grant County v. Newbigging, 105 Wn. App. 178, 192, 19 P.3d 1081 (2001). Bevins asked the trial court to award fees, arguing that terms "are uniformly awarded" when a trial court vacates a default judgment. Knapp also requested fees, arguing, among other reasons, that (1) Bevins' attorney negligently misled Knapp into believing he had not been sued; and (2) Bevins' attorney should be sanctioned for citing an unpublished opinion to the trial court in his request for attorney fees. Under these circumstances, the trial court exercised its discretion and refused to award fees to either party. Bevins fails to demonstrate any abuse of that discretion.
Bevins requests fees on appeal under RAP 18.1(b) if his appeal is successful. Because we affirm the trial court in all respects, we deny Bevins' request for fees on appeal.
Knapp also presents a bare request for attorney fees and costs on appeal without citation to authority regarding the grounds for such an award. We therefore deny his request for attorney fees on appeal. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998). However, as the prevailing party on appeal, Knapp is entitled to an award of costs under RAP 14.2, subject to compliance with RAP 14.4.
Affirmed.