Opinion
No. 53980-9-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-04827-7. Judgment or order under review. Date filed: 03/12/2004. Judge signing: Hon. Philip G. Jr. Hubbard.
Counsel for Appellant(s), Edward Wilson (Appearing Pro Se), 11833 — 12th Ave S., Seattle, WA 98168.
Virgilia Wilson (Appearing Pro Se), 11833 — 12th Ave. South, Seattle, WA 98168.
Counsel for Respondent(s), Frank C. Demarco, Law Offices of Linn Schisel DeMarco, 860 SW 143rd St, Seattle, WA 98166-1585.
Edward and Jane Doe Wilson appeal the superior court order denying a motion to vacate the judgment quieting title in this boundary dispute. Wilson contends that the judgment was obtained by fraud because Wilson's own attorney did not provide notice that he was withdrawing or notice of the trial date. But any miscommunication between Wilson and Wilson's attorney was not fraud on the part of Bogue. Wilson also argues that the legal description set forth in his deed and title insurance policy rebuts the survey relied upon at trial, but the dimensions set forth in the legal description do not contradict the survey defining the location of the true boundary. Further, Wilson did not provide the trial court with any facts establishing a viable claim of adverse possession. We affirm.
FACTS
Brett and Jeanette Bogue filed a quiet title action alleging that the Wilson's concrete driveway encroached two feet onto their property. Wilson's attorney filed an answer including the defense that Wilson owned the disputed property by adverse possession.
On December 3, 2003, the case came on before the superior court for trial. Bogue presented the testimony of a surveyor confirming that Wilson's concrete driveway encroached two feet onto Bogue's property. Neither Wilson nor Wilson's attorney appeared for the trial. The court ruled for Bogue and on December 9, 2003, entered a judgment quieting title in Bogue and granting a judgment for attorney fees and costs.
In February 2004, Wilson filed a `motion to set aside quieting title by fraud on court.' On March 12, 2004, the superior court heard oral argument and denied the motion, concluding that Bogue had not obtained the judgment by fraud, and that Wilson had not demonstrated `the existence of a meritorious defense to the underlying action.'
DECISION
An appellant must provide assignments of error, and adequate legal authority to support appellant's arguments. A decision granting or denying a motion to vacate a judgment is discretionary and will be overturned on appeal only if the court based its decision on untenable grounds or untenable reasons. Under these standards, Wilson does not demonstrate any basis for relief on appeal.
RAP 10.3(a)(3).
Bohn v. Cody, 119 Wn.2d 357, 368, 832 P.2d 71 (1992).
Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978); Lane v. Brown Haley, 81 Wn. App. 102, 105, 912 P.2d 1040 (1996).
First, Wilson's brief does not include any assignments of error.
Second, Wilson focuses primarily upon allegations of fraud based upon the notice of withdrawal signed by Wilson's attorney in late November 2003 without notice to Wilson of the attempted withdrawal or notice of the pending December 3, 2003 trial date. A court may grant a party relief from judgment for fraud by the opposing party preventing a full and fair presentation of a case. But the record provided by Wilson does not reflect any misrepresentation or other form of fraud by Bogue. And Wilson provides no legal authority that lack of communication with one's own attorney is a basis to vacate or set aside a judgment.
CR60(b)(4); Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990); North Pac. Plywood, Inc. v. Access Rd. Builders, Inc., 29 Wn. App. 228, 232, 628 P.2d 482 (1981).
Third, Wilson argues that the superior court never addressed the defenses alleged in Wilson's answer, such as adverse possession. A defendant attempting to vacate a judgment on grounds such as fraud, excusable neglect or mistake, must demonstrate a prima facie defense based upon affidavits setting out the facts constituting the defense, and not merely stating allegations and conclusions. At the hearing on the motion to vacate, the superior court expressly asked Mr. Wilson, `had you been here, what defense would you have interposed?' Wilson responded that he was relying upon the legal description in his deed and title insurance. Those documents reflect that Wilson purchased the east 132.5 feet of the south 64 feet of lot 10, but they do not establish that his existing concrete driveway is located within those boundaries. Wilson did not set out specific facts disputing the Bogue's survey or supporting an adverse possession theory. The trial court expressly concluded that Wilson made no showing of a meritorious defense. In his brief on appeal, Wilson recounts the elements of adverse possession that were listed in Wilson's answer to the complaint, but such general allegations are not a prima facie showing of adverse possession.
Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd Hokanson, 95 Wn. App. 231, 239, 974 P.2d 1275 (1999).
Verbatim Report of Proceedings (March 12, 2004) at 4.
Finally, Wilson makes vague and general references to the Fifth, Ninth and Fourteenth Amendments, due process, equal protection, and 42 U.S.C. 1983. But his brief does not contain any specific legal argument establishing reversible error by the superior court.
Affirmed.