Opinion
No. 65259-1-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-2-02410-5, Julie A. Spector, J., entered March 19, 2010.
Affirmed by unpublished opinion per Lau, J., concurred in by Cox and Schindler, JJ.
After a bench trial, the court entered judgment against defendant James Henches for fraud, violation of the Consumer Protection Act, and breach of contract. Henches appeals the denial of his CR 60(b)(1) and (11) motion to vacate the judgment. He asserts that Harold Crovisier's attorney improperly served the notice of presentation and proposed judgment on his attorney by an unsigned word attachment to an e-mail. But because Henches' attorney consented to the electronic service, we affirm.
FACTS
Crovisier had difficulty making payments on his condominium. Henches loaned Crovisier money in exchange for Crovisier's agreement to sell the condominium to Henches. Under foreclosure threat, Crovisier coerced Henches into executing several additional documents, including a price reduction, an addendum to the promissory note that effectively eliminated any payment to Henches, and escrow documents directing the escrow to distribute all sale proceeds to Henches.
Crovisier sued Henches on January 9, 2008. Just before trial, new counsel appeared for Henches. Henches' counsel e-mailed a notice of appearance to Crovisier's counsel, asking if he would accept service by e-mail. Crovisier's counsel replied, "email is fine." The day before trial, Henches' counsel e-mailed his exhibit list, witness examination estimate, trial brief, and proposed findings of fact and conclusions of law to Crovisier's counsel. Crovisier's counsel never objected to the electronic service.
The court held a one-day trial on December 2, 2009. On December 3, 2009, Crovisier's counsel e-mailed Henches' counsel — "I recently sent you a copy of my proposed findings by email. Can we agree to serve documents electronically?" Henches' counsel replied by e-mail, "Yes." The record shows the parties consented to service by e-mail.
On December 7, 2009, Crovisier's counsel sent an e-mail to the trial court's bailiff, stating, "I efiled a proposed judgment, a notice of presentation for 12/15/09, a declaration re attorney's fees and a declaration of service today. Working copies should be assembled and sent to [the judge]. Please let me know if you do not receive them." He also sent a copy of this e-mail to Henches' counsel.
Also on December 7, 2009, Crovisier's counsel sent Henches' counsel an e-mail stating, "Matt, I am enclosing my notice of presentation and proposed judgment. I will send you a declaration re attorney's fees and a declaration of service by separate email." This e-mail attached the notice of presentation and proposed judgment as word documents. The notice of presentation was signed electronically as "s/Kirk R. Hines." The proposed judgment was not signed by Crovisier's counsel. Henches' counsel did not respond.
The judgment was filed on December 16, 2009. Henches filed a motion to vacate, which was denied. He appeals.
ANALYSIS
Henches assigns error to the trial court's denial of his motion to vacate. He argues, "Sending an unsigned word processor file is not service within the meaning of CR 5, and the judgment was therefore improperly granted." Br. of Appellant at 3. He argues specifically that the judgment was entered as a result of irregularity in obtaining it because: (1) the parties did not agree in writing to accept service by e-mail, (2) the notice of presentation and proposed judgments were in Microsoft Word format, (3) these documents were not signed, (4) the contents of the e-mail containing the attachments were vague, (5) he did not acknowledge receiving the e-mail nor did plaintiff's counsel inquire about their receipt, and (6) Crovisier's counsel did not "provide a copy to Henches afterwards." Appellant's Br. at 3. Crovisier responds by arguing that Henches consented to the electronic service.
We review denial of a CR 60(b)(1) or 60(b)(11) motion to vacate judgment under an abuse of discretion standard. Haley v. Highland, 142 W.2d 135, 156, 12 P.3d 119 (2000); In re Marriage of Jennings, 138 Wn.2d 612, 625-26, 980 P.2d 1248 (1999).
CR 60(b) provides in relevant part,
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(I) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
. . . .
(II) Any other reason justifying relief from the operation of the judgment.
First, Henches asserts that there was no agreement for electronic service. But the parties expressly agreed that they would receive service electronically. When asked by opposing counsel if, "we agree to serve documents electronically," Henches' counsel responded by e-mail, "Yes." CR 5(b)(7) provides in part, "Service under this rule may be by delivering a copy by any other means, including facsimile or electronic means, consented to or in writing by the person served." An e-mail can constitute a writing. See, e.g., ER 1001. We conclude the parties expressly consented to electronic service.
Second, Henches asserts that sending the documents in Microsoft Word format was insufficient. In his opening brief, he cites no authority for this proposition. We therefore need not consider it. Sorenson v. Pyeatt, 158 Wn.2d 523, 543, 146 P.3d 1172 (2006) ("we adhere to the general rule that this court will not address an argument "raised for the first time in a supplemental brief and not made originally by the petitioner or respondent within the petition for review or the response to petition.'" (quoting Cummins v. Lewis County, 156 Wn.2d 844, 851, 133 P.3d 458 (2006)); Beal for Martinez v. City of Seattle, 134 Wn.2d 769, 777, 954 P.2d 237 (1998) (where a party cites no authority for a proposition, the issue is not properly before the court).
Third, Henches asserts that the documents were not signed. The notice of presentation had an electronic signature as set forth in GR 30(D)(2)(A). And Henches has cited no authority that Crovisier's counsel was required to serve a signed copy of the proposed judgment. He cites CR 11, which requires parties to sign pleadings, motions, and legal memoranda. But he cites no authority that a proposed judgment is a pleading, motion, or memoranda. We therefore need not consider this argument.
Fourth, Henches complains that the e-mail containing the documents was vague. It was not. The e-mail said, "I am enclosing my notice of presentation and proposed judgment." This is precisely what the email contained.
Fifth, Henches argues that he did not acknowledge receipt of the e-mail, nor did Crovisier's attorney inquire about its receipt. But CR 5(b)(7) makes electronic service ineffective only if "the party making service learns that the attempted service did not reach the person to be served." Henches has not alleged that this is the case, and we therefore reject the argument.
Finally, Henches argues that Crovisier's counsel did not "provide a copy to Henches afterwards." Br. of Appellant, at 3. Henches does not explain this argument, nor does he cite any authority for it. We therefore need not consider it.
CONCLUSION
Because Henches' attorney consented to electronic service, the trial court did not abuse its discretion in denying the motion to vacate the judgment. Crovisier is entitled to attorney fees on appeal. RCW 19.86.090; Washington State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 336, 858 P.2d 1054 (1993) ("Attorneys' fees on appeal are recoverable under the Consumer Protection Act."). We affirm.