Opinion
No. 23250-6-III
Filed: August 4, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No: 01-2-00417-1. Judgment or order under review. Date filed: 07/23/2004. Judge signing: Hon. Evan E. Sperline.
Counsel for Appellant(s), Harry Everett Ries, Attorney at Law, PO Box 1849, 406 W Broadway Ave Apt D, Moses Lake, WA 98837-3831.
Counsel for Respondent(s), Jeffrey B. Earl, Attorney at Law, 1334 S Pioneer Way, Moses Lake, WA 98837-2410.
Express Building Supply, Inc., sued Travis and Jane Doe Smith for foreclosure of a materialman's lien and damages. After a default judgment was entered, the Smiths successfully moved to vacate and a second trial was set. The Smiths' attorney neglected to attend the second trial and the court granted oral judgment for Express. Before entry of the written judgment, the Smiths moved for a new trial, reconsideration, or relief from judgment. The trial court granted the motion and reopened the judgment to take limited additional evidence. Express appeals this ruling, contending the trial court abused its discretion. We disagree, and affirm.
Facts
In April 2001, Express filed a summons and complaint in Grant County for foreclosure of a materialman's lien and for sums owed, plus interest. The complaint alleged Express had furnished material, labor, and supplies to the Smiths from April 2000 through October 2000. When the Smiths did not pay for these services, Express filed a claim of lien. Express sought foreclosure of the lien and $8,809, representing the sums owed plus interest to December 2000. It also requested attorney fees pursuant to chapter 60.04 RCW.
The Smiths were not represented by counsel at this time. They did not file an answer and did not appear at trial. In July 2001, the superior court entered a default judgment against the Smiths for $10,389 plus statutory attorney fees and costs. This judgment was amended on July 23, 2002 to add additional attorney fees and to foreclose the lien.
Two days after entry of the amended judgment, the Smiths moved to vacate. They argued that they did not understand that they needed to file an answer and they never received notice of Express's motion for default. The trial court entered an order vacating the default judgment, the Smiths filed an answer to the complaint through counsel, and the case was set for trial. When the first trial date was bumped by the court, both counsel were informed by the court administrator that the second trial date had become the 'first set.' Clerk's Papers at 121. However, the Smiths' counsel neglected to note the new date on his calendar.
On the date of the trial — May 27, 2004 — the Smiths' attorney and his staff were in Spokane for a bankruptcy training and never attended trial. The trial court allowed Express to present two witnesses who testified regarding the amounts owed by the Smiths. After Express's closing argument, the court orally granted the relief requested and asked counsel to prepare findings of facts and conclusions of law.
On June 4, 2004, before entry of the findings and conclusions and written judgment, the Smiths filed a motion for new trial, reconsideration, and relief from judgment. Citing CR 59 and CR 60(b), they declared that substantial justice had not been done and requested at a minimum a reopening of the judgment. In his affidavit in support of the motion, the Smiths' counsel accepted responsibility for the mistake and stated that the new trial would not be a hardship to Express.
The trial court granted the order to vacate the oral judgment on July 23, 2004. The court ruled that Express need not present additional evidence unless it chose to do so, and further ruled that the Smiths could not cross-examine Express's witnesses (unless Express offered further evidence). Additionally, the Smiths could not argue against the reasonableness of the attorney fees incurred in the first trial. A one-half day trial was ordered for the first available date and time. Express timely appealed this order.
Reopening an Oral Judgment
Express contends the trial court abused its discretion in granting the Smiths' motion for a new trial, reconsideration, and to vacate the oral judgment. It argues that the trial court failed to make necessary findings that the absence of the party was unavoidable.
Preliminarily, the Smiths move to dismiss the appeal, contending the trial court never entered a final order to appeal from. RAP 2.2(9) and (10) provide that a party may appeal as of right from orders on motions for a new trial and motions for vacation of judgment. The Smiths argue that the rule applies only to orders after a final, written judgment has been filed. However, CR 59(g) contemplates a scenario similar to the one in this case: 'On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.'
(Emphasis added.)
Pursuant to CR 59(g), the trial court here entertained a motion for a new trial and decided to take additional testimony. Powell v. Schultz, 4 Wn. App. 213, 216, 481 P.2d 12 (1971) (CR 59(g) authorizes a trial court to reopen). The court did not need to reopen a final, written judgment, because one had not been entered. Our review is authorized under RAP 2.2(9) and case law. See In re Pawling, 101 Wn.2d 392, 395, 679 P.2d 916 (1984) (reopening an oral judgment does not violate CR 59); Zulauf v. Carton, 30 Wn.2d 425, 428, 192 P.2d 328 (1948) (the trial court's discretion in reopening a case for additional evidence is subject to review). Accordingly, the Smiths' motion to dismiss for lack of jurisdiction is denied.
As noted above, a trial court's decision to reopen a case to take additional evidence is reviewed for abuse of discretion. Tsubota v. Gunkel, 58 Wn.2d 586, 591, 364 P.2d 549 (1961); Finley v. Finley, 47 Wn.2d 307, 313, 287 P.2d 475 (1955); Ghaffari v. Dep't of Licensing, 62 Wn. App. 870, 875-76, 816 P.2d 66 (1991). If the trial court has made an oral decision, but that decision has not been reduced to a written judgment, the formalities for vacation or reconsideration of the judgment or for a new trial do not apply. A trial court's oral judgment has no binding effect until it is formally incorporated into findings of fact, conclusions of law, and the judgment. Ferree v. Doric Co., 62 Wn.2d 561, 566-67, 383 P.2d 900 (1963). Until the written judgment is entered, the trial court is free to alter, modify, or completely abandon the oral decision. Id. at 567. And until the formal judgment, a defendant is free to use whatever tactics are appropriate to obtain a judgment in his or her favor. Seidler v. Hansen, 14 Wn. App. 915, 917, 547 P.2d 917 (1976).
Express contends the reopening of an oral judgment after a party's no-show must be based upon a finding that the absence of the party was unavoidable. But Zulauf, cited for this proposition, simply holds that facts showing that the absence of the party was unavoidable are sufficient to grant a motion to reopen a cause. Zulauf, 30 Wn.2d at 428. An unavoidable absence is but one circumstance that may be considered in the trial court's decision to grant or deny a motion to reopen. Express argues that the incompetence or neglect of a party's attorney usually is not sufficient for relief from judgment under CR 60(b) in a civil action, citing Lane v. Brown Haley, 81 Wn. App. 102, 107, 912 P.2d 1040 (1996). But the trial court does not need to address the requirements of a CR 60(b) motion for relief from final judgment or a CR 59 motion for new trial when it is considering whether to reopen a cause before judgment has been entered. See Cerjance v. Kehres, 26 Wn. App. 436, 441, 613 P.2d 192 (1980) (the restrictions on granting a new trial do not apply when the trial court has not yet rendered a final judgment).
The trial court has broad discretion to give further study to the issues and to consider additional evidence after rendering an oral decision. In re Marriage of Harshman, 18 Wn. App. 116, 120, 567 P.2d 667 (1977), overruled on other grounds by In re Marriage of Elam, 97 Wn.2d 811, 650 P.2d 213 (1982). Here, Express offers no argument that it will be prejudiced by the trial court's decision, and none appears in the record. The trial court limited the Smiths to a showing of evidence, without an opportunity to cross-examine Express's witnesses, and ordered the Smiths to pay attorney fees and costs for the trial they did not attend. Because the trial court's decision was neither manifestly unreasonable nor based on untenable grounds, we find no abuse of discretion. In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005).
Attorney Fees
Both parties request attorney fees on appeal pursuant to their contract and RCW 60.04.181(3), which provides that '[t]he court may allow the prevailing party in the action, whether plaintiff or defendant, as part of the costs of the action, . . . attorneys' fees and necessary expenses incurred by the attorney in the superior court, court of appeals, supreme court, or arbitration, as the court or arbitrator deems reasonable.' RCW 60.04.181(3) addresses a court's discretion to award attorney fees and expenses in an action on a materialman's lien. Frank v. Fischer, 108 Wn.2d 468, 477, 739 P.2d 1145 (1987) (applying former RCW 60.04.130 (1995)).
In this case, the determination of the prevailing party in the action on the materialman's lien has not yet been made. The trial court is the proper forum to determine whether fees are appropriate under RCW 60.04.181(3) and the contract. See McAndrews Group, Ltd. v. Ehmke, 121 Wn. App. 759, 765-66, 90 P.3d 1123 (2004) (remand after reversal of a summary judgment order).
Affirmed. The motion to dismiss the appeal is denied.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and KURTZ, J., Concur.