Opinion
No. 56840-0-I.
October 2, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-19256-1, William L. Downing, J., entered August 5, 2005.
Counsel for Appellant(s), Darryl Parker, Premier Law Group, PLLC, 3131 Elliott Ave Ste 710, Seattle, WA, 98121-1047.
Counsel for Respondent(s), Ruth Nielsen, Nielsen Law Office Inc PS, Po Box 31119, Seattle, WA, 98103-1119.
Affirmed by unpublished per curiam opinion.
Relief from a judgment or order under CR 60(b)(11) is limited to extraordinary circumstances that are not present in this case. Accordingly, we affirm the trial court's ruling denying Kimberlylanae Minor's motion for relief from an order compelling arbitration.
FACTS
In July 2004, Minor sued 24 Hour Fitness for unauthorized use of her image in its fitness facilities. In its answer, 24 Hour Fitness alleged that under Minor's membership agreement, her claims had to be submitted to arbitration and that she had to pay for the cost of arbitration. 24 Hour Fitness subsequently filed a motion to stay the proceedings and compel arbitration. Minor argued that the dispute was not covered by the arbitration agreement. On February the trial court granted the motion to stay and compel arbitration.
In May, 2005, Minor sent the American Arbitration Association (AAA) a filing fee of $375. AAA then informed the parties that 24 Hour Fitness was required to pay a fee of $1,125. When 24 Hour Fitness pointed out that the parties' contract required Minor to pay all arbitration fees, AAA billed Minor for the additional $1,125. Minor asserted that the arbitration clause was unconscionable and refused to pay the additional fee. On July 14, 2005, AAA terminated the arbitration proceeding.
On July 21, 2005, Minor filed a motion for relief from the order compelling arbitration under CR 60(b)(11). She argued that given the "newly discovered information" regarding her responsibility for the additional $1,125 fee, enforcement of the order would effectively deny her a forum for her claims. 24 Hour Fitness responded that Minor's arguments could have been raised in response to the motion to compel arbitration, that CR 60(b)(11) was inapplicable, and that her motion was really an untimely motion for reconsideration. In an attached declaration, counsel for 24 Hour Fitness stated that "[t]he American Arbitration Association has the fees for arbitration stated on its website at www.adr.org" and that the fee information had been "readily available on the AAA website or by contacting AAA directly."
On August 5, 2005, the trial court denied Minor's motion for relief, stating: "[w]hile it is sympathetic to the plaintiff in lieu of these developments, the court finds it is precluded on procedural grounds from granting the requested relief." Minor appealed, and this court set an appealability hearing. A commissioner of this court referred the appealability issue to the panel hearing the merits.
DECISION
Minor seeks review of the order denying her motion to vacate the order compelling arbitration. Minor contends the former order is appealable as a matter of right under RAP 2.2(a)(3). We need not resolve this issue because even assuming the order is appealable, the court properly denied Minor's motion to vacate.
A trial court's decision on a motion to vacate is discretionary and is ordinarily reviewed for manifest abuse of discretion. But when, as here, a court disposes of such a motion on procedural grounds, our review is de novo. Applying that standard of review, we conclude that the court did not err in denying Minor's motion.
Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000).
Cf. In re Marriage of Thompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999).
Minor's sole basis for vacating the order compelling arbitration was CR 60(b)(11). That rule allows vacation of an order or final judgment for "[a]ny other reason justifying relief" from judgment. Cases have limited the use of CR 60(b)(11), however," — to situations involving extraordinary circumstances not covered by any other section of the rule.'" Those circumstances must relate to "irregularities extraneous to the action of the court or questions concerning the regularity of the court's proceedings." The rule is typically invoked in unusual situations involving reliance on mistaken information. The neglect of a party's own attorney does not qualify for relief under the rule.
Minor argues that CR 60(b)(3), which governs motions to vacate based on newly discovered evidence, does not apply here since the rule specifically refers to evidence that "could not have been discovered in time to move for a new trial under rule 59(b)[.]" (Emphasis added). We assume without deciding that the rule is not applicable to this case.
In re Marriage of Tang, 57 Wn. App. 648, 655, 789 P.2d 118 (1990) (quoting In re Marriage of Yearout, 41 Wn. App. 897, 902, 702 P.2d 1367 (1985).
See In re Marriage of Yearout, 41 Wn. App. at 902.
In re Marriage of Tang, 57 Wn. App. at 656.
Lane, 81 Wn. App. 102, 107, 912 P.2d 1040 (1996).
In her motion to vacate, Minor claimed that the cost of arbitration was "newly discovered information," but she failed to support that allegation. To qualify as an "extraordinary circumstance" justifying relief under CR 60(b)(11), a claim of newly discovered evidence must involve something more than the belated discovery of a claim or evidence that could have been discovered prior to the order sought to be vacated. In this case, Minor was on notice prior to the motion to compel that 24 Hour Fitness expected her to pay the cost of any arbitration. Despite that notice, she did not challenge the arbitration provision as prohibitively expensive until she moved to vacate the order compelling arbitration. In that motion, she offered little justification for not raising the claim earlier, stating only that the "shocking result of the arbitration clause [had not been] readily apparent" before the AAA informed her of the fee. Then, when 24 Hour Fitness filed a declaration stating that fee information had always been available on the AAA website, Minor filed nothing in response.
The party seeking relief through a motion to vacate bears the burden of establishing that relief is warranted. See CR 60(e)(1); Washington Mill Co. v. Marks, 27 Wash. 170, 174, 67 P. 565 (1902).
Significantly, a case cited by Minor, Mendez v. Palm Harbor Homes, Inc., 111 Wn. App. 446, 452-53, 45 P.3d 594 (2002), demonstrates that a party can determine the cost of arbitration and raise the type of argument Minor raises here prior to a court's ruling on a motion to compel arbitration. Counsel's failure to do the same in this case is not grounds for relief under CR 60(b)(11).
Lane, 81 Wn. App. at 107.
In short, on the record developed below, there was no basis for concluding that the fee evidence was newly discovered or qualified as "extraordinary circumstances" warranting relief under CR 60(b)(11). Therefore, 24 Hour Fitness correctly argued, and the trial court properly concluded, that there was no "legitimate procedural basis for setting aside the court's order to compel arbitration." We recognize that Minor's alleged loss of access to a forum for her claims is a significant matter warranting the attention of the courts, but, for the reasons stated above, the circumstances in this case simply do not come within the narrow ambit of CR 60(b)(11).
See Mortenson Co. v. Timberline Software, 93 Wn. App. 819, 836, 970 P.2d 803 (1999) (no basis for relief under CR 60(b)(11) where motion to vacate to add claims was brought five months after judgment and claims could have been added prior to judgment).
Affirmed.
BECKER and AGID, JJ.