Opinion
No. 61434-7-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-03278-7, Richard J. Thorpe, J., entered February 20, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Louis and Diana Tamarra appeal the denial of their motion to grant a new trial because their attorney inadvertently failed to appear at a bench trial. We decline to create a new rule imposing a duty on counsel or the trial court to investigate an attorney's failure to appear for a civil trial when the record reflects that notice of the trial date was provided in accordance with applicable rules. That the court could have acted within its discretion in inquiring further, or in later granting the motion for a new trial, does not establish that the court abused its discretion in declining to do so. Louis and Diana's additional challenge to the sufficiency of the evidence also fails. We find no abuse of discretion and affirm.
Because the parties share the same last name, first names are used for the sake of clarity.
DECISION
Louis and Diana Tamarra are Lyle Tamarra's parents. Lyle Tamarra married Denise Tamarra in 1991.
According to Denise, she and Lyle planned a family and wished to purchase a residence. Because Lyle had financial difficulties from a prior marriage, Louis and Diana agreed to assist them with the down payment and hold the title to the property. Denise and Lyle located a run-down manufactured home on approximately three acres for sale for approximately $99,000. With significant work, they believed the property would provide a good family home. To keep the mortgage payments at a rate they could afford, they needed to make a down payment of approximately $28,000. The couple had access to a $7,000 trust fund in Lyle's name and Louis and Diana offered to provide the balance of the down payment, $21,000, subject to eventual reimbursement. It was agreed that Denise and Lyle would be responsible for all subsequent payments because it was to be their house.
Over the next 15 years, Denise and Lyle had two children and lived with them on the property as their family home. Denise and Lyle paid all mortgage payments, tax payments, insurance payments, homeowner's association fees and repairs. They occasionally added to the mortgage payment to accelerate paying down the debt, and made several improvements to the grounds and the mobile home. Louis and Diana repeatedly confirmed with Denise, Lyle, and other family and friends that they regarded the home as belonging to Denise and Lyle.
In 2006, Denise and Lyle became estranged and Lyle moved out of the house. The couple dissolved their marriage in June, 2006.
Louis and Diana then filed unlawful detainer proceedings to evict Denise and their grandchildren from the home and to prepare to sell the property. Denise obtained counsel to pursue an equitable claim to the property. Denise's counsel exchanged correspondence with Louis and Diana's counsel, Bruce Galloway, in the fall of 2006, in which Galloway represented that Louis and Diana agreed to settle Denise's claim for 25 percent of the net proceeds of the sale. In reliance on that representation, Denise did not assert her claims in court or attempt to block the sale. Louis and Diana then sold the property in January 2007 for approximately $240,000. Louis and Diana thereafter refused to provide Denise any share of the sales proceeds.
Denise filed suit for imposition of a constructive trust and other equitable relief in March 2007, seeking reimbursement for her share of the community interest and, alternatively, for enforcement of the agreement to share sale proceeds. Lyle declined to participate in the lawsuit on either side. Denise named him as an involuntary plaintiff because of his interest in the equitable claim to the property. Their dissolution decree had expressly awarded Lyle a half interest in the proceeds of any community interest in the property.
Galloway filed a notice of appearance on behalf of Louis and Diana in March, and, after Denise's counsel filed a motion for default, a part-time associate in his office filed an answer in May. In accordance with local court rules, Denise's counsel filed and served a notice of trial setting on July 10, 2007. The notice indicated that the court would set a trial date on July 25, 2007. On July 25, the court set a trial date of November 8, 2007 at 9:00 a.m. Galloway did not attend the trial setting hearing. On July 27, the court clerk mailed both counsel notice of the trial date.
The parties were deposed in October, 2007. Galloway's associate represented Louis and Diana. In their depositions, Louis and Diana testified that Denise and Lyle had always agreed that they were merely renting the home. They also claimed to have made some of the insurance and repair payments on the property over the years. They acknowledged that Lyle and Denise had made the mortgage payments directly, that they had never claimed the payments as rental income for tax purposes, that they had never claimed tax deductions for expenses for the property, and that they had no documentation that they paid any expenses after the initial down payment. They also denied ever authorizing Galloway to settle Denise's claim for 25 percent of the property's net sale price, as Galloway had indicated in his email to Denise's counsel.
On November 8, Denise and her counsel appeared, but no one appeared on behalf of Louis and Diana. At 9:45, the trial judge inquired of Denise's counsel if he had any idea where the defendants were. Counsel responded that Galloway's office had been on the case from the inception and that Galloway's associate had conducted the depositions in October. Counsel indicated that was the last he had heard. The court indicated counsel could call his first witness.
After Denise's testimony and the admission of several documentary exhibits, Denise's counsel rested and released the other witnesses they had scheduled to testify. The court recessed and returned with an oral decision finding Denise had established the elements of a constructive trust by clear, cogent and convincing evidence. The court accordingly directed that Denise should receive the net sale price of the property less Louis and Diana's contribution to the down payment with interest over the 15 years, which the court calculated as a total of $52,500.
Denise's counsel filed and served proposed findings of fact and conclusions of law. In response, Galloway's associate filed an objection and motion to set aside the verdict or vacate the judgment under CR 59 and CR 60, arguing that there was a procedural irregularity because her office did not receive actual notice of the trial date and she should be excused from having investigated the absence of such notice because of her inexperience in civil matters and local practice. The trial court denied the motion, and denied Louis and Diana's subsequent motion to reconsider. The court did however, grant relief to Lyle, who appeared in the action and sought one-half of the former marital community's interest in the sale proceeds. Louis and Diana appeal.
ANALYSIS
Louis and Diana argue that the trial court erred in denying their motion for a new trial under CR 59(a)(1) and CR 60(b). CR 59(a)(1) permits a trial court to vacate a verdict and grant a new trial on the grounds of irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial. CR 60(b), in relevant part, permits a court to grant a motion for relief from judgment or order on the grounds of: mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order. The standard of review for denial of a motion for a new trial is abuse of discretion. Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000).
Louis and Diana argue there was an irregularity in the proceedings because their counsel did not receive notice of the trial date, and that counsel's failure to ascertain the date should be considered excusable neglect.
Their argument overstates the actual record provided by the declarations Galloway and his associate submitted in support of the motion for a new trial. While Louis and Diana now assume the record established that Galloway's office did not receive notice of the trial date, Galloway admitted the possibility that there was "an inadvertent failure in my office procedures to properly note the trial date" and characterized the problem as a "failure to receive notice — or a breakdown in our own internal system", which caused him serious concern. He believed it more likely they had not received the notice, however, because he found no copy of the notice in his office. Galloway noted that the address the court used included both his post office box and his street address. He speculated that the postal carrier had perhaps delivered it to his street address where his mail could have been taken by pranksters attending a local community festival occurring around the time the notice was mailed. Because of a similar occurrence 20 years earlier, he believed he had previously asked the Superior Court Clerk's Office to use only his post office box in mailing him notices.
The trial court found unpersuasive the claim of irregularity based on the possibility that Galloway's office did not receive the notice. We cannot conclude that finding was an abuse of discretion. As Denise notes, the form of Galloway's address used by the court was exactly what Galloway had included on his notice of appearance, and was the same form the court used to mail out other notices, including the notice of trial setting, which Galloway acknowledged receiving.
Moreover, the trial court reasoned that even if Galloway's office did not receive the notice, any reasonable attorney should have checked with the court about the trial date long before the trial actually occurred. Again, we cannot find this conclusion an abuse of discretion on this record.
Galloway's associate explained that she was unfamiliar with Snohomish County civil practice due to her limited experience, primarily in criminal cases in other counties. However, Galloway was well aware that if counsel chose not to attend the trial setting hearing, under the local rules, the court would mail the trial date to the parties soon after the hearing. And Galloway acknowledged his office received notice of the trial setting and should have been aware that the court would set the trial date and notify the parties by mail on that date or shortly thereafter, which was exactly what the court did. As the trial court reasoned, this gave Galloway's office almost four months to ascertain the trial date by simply calling the court, looking at the court file, or contacting Denise's counsel.
The trial court also could reasonably discount other factors Galloway argued excused his office from concern about an approaching trial date. That Galloway did not receive advance notice about any ER 904 submissions was not significant because Denise did not propose such evidence. And the fact that the last deposition occurred just within the normal 35-day discovery cutoff was not significant because Denise's counsel had simply agreed to a brief continuance at Galloway's associate's request.
Louis and Diana nonetheless assert that the court abused its discretion on the morning of trial by failing to inquire further as to the reason for their counsel's failure to appear. In support of this argument they cite dicta from Tacoma Recycling, Inc. v. Capitol Material Handling Co., 34 Wn. App. 392, 396 n. 1, 661 P.2d 609 (1983). In Tacoma Reclycling, a prevailing party proposed findings, conclusions, and a judgment without prior notice of presentation to the opposing party, who had failed to appear for trial. The court accordingly reversed the judgment for failure to comply with the notice requirements for entry of the judgment because a failure to appear for trial is not equivalent to a default by failing to appear in the action at all. Tacoma Recycling, 34 Wn. App. 392 at 396. Louis and Diana cite a footnote in which the Tacoma Recycling court observed that it would have been reasonable for counsel to telephone opposing counsel on the morning of counsel's nonappearance for trial. They ask this court to impose a duty on trial courts to ascertain the reason an attorney fails to appear at a civil trial before proceeding further when that attorney had engaged in the discovery process.
As Denise points out, however, Tacoma Recycling actually holds that under CR 40(a)(5), the court may properly proceed to trial in civil matters even when one party fails to appear. Tacoma Recycling, 34 Wn. App. at 394-95. The actual error regarding presentation of findings and a judgment that occurred in Tacoma Recycling did not occur in this case. Moreover, even if the Tacoma Recycling dicta is understood as establishing that a trial court does not abuse its discretion in inquiring further when one party does not appear for trial, it by no means holds that a court abuses its discretion by declining to do so.
Louis and Diana also argue that the trial court should have found it significant that Galloway's office failed to confirm the matter for trial two weeks before the trial date in accordance with Snohomish County Local Rule (40)(d)(1). Nothing in that rule, however, requires the court to remind counsel of a failure to confirm or makes confirmation by both parties a necessary prerequisite to proceeding to trial on the scheduled date.
Louis and Diana essentially ask this court to create a new rule out of whole cloth requiring a detailed investigation when counsel fails to appear for trial. We find no reason in law or equity to do so here. Nothing in the record gives the slightest hint that either the court or Denise's counsel committed any error or impropriety in setting the trial date or providing Galloway's office notice of the same. In our adversarial system neither opposing counsel nor the court is required to manage an attorney's calendar. Therefore, while we agree that the trial court would not have abused its discretion in inquiring further, we cannot hold that it necessarily abused its discretion by failing to do so.
We also reject Louis and Diana's attempts to analogize to the law governing motions to vacate default judgments. We agree with the court in Tacoma Recycling that the circumstances are not analogous. See Tacoma Recycling, 34 Wn. App. 392 at 395-96. Moreover, even if we employed the analysis Louis and Diana advocate, the trial court would not have been required to grant relief here. Haller v. Wallis, 89 Wn.2d 539, 546, 573 P.2d 1302 (1978) (trial court's decision not to vacate a stipulated order under CR 60(b) affirmed where there was no evidence of fraud or collusion and none of the irregularities charged was attributable to the court or the party resisting the motion).
We accordingly conclude that the trial court did not abuse its discretion in denying Louis and Diana's motion for a new trial and motion to reconsider.
Louis and Diana next challenge the sufficiency of the evidence to support the trial court's finding of a constructive trust. We decline to consider this argument because the record provided to this court is incomplete.
An appellant must provide the record necessary for this court to resolve the issue raised on appeal. State v. Bache, 146 Wn. App. 897, 903, 193 P.3d 198 (2008); State v. Meas, 118 Wn. App. 297, 303 n. 6, 75 P.3d 998 (2003). Louis and Diana did not designate any of the exhibits from the trial to this court for consideration on appeal. See RAP 9.6. It appears that the exhibits included numerous documents supporting Denise's claim that, from the time of the property's acquisition through her 15 years of occupancy, she and Lyle made many expenditures, repairs and improvements that were consistent only with a reasonable belief that they were owners, not merely renters. The record also reflects that the court specifically considered those exhibits and relied on them in rendering its decision. Under the circumstances, Louis and Diana's failure to provide those exhibits to this court precludes consideration of the issue.
Denise requests attorney fees on appeal, but provides no argument or authority supporting an award of fees here. We therefore deny the request for fees. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710-11 n. 4, 952 P.2d 590 (1998).
We find no abuse of discretion or other error and accordingly affirm.