Opinion
No. 64274-0-I.
September 13, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-2-18082-2, Steven C. Gonzalez, J., entered October 2, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Cox and Leach, JJ.
John Freeman appeals from the trial court's order denying his motion to vacate a judgment dismissing his claims against Gary Bergan and the law firm of Thomas Whittington Bergan Studebaker, Inc., P.S. (collectively Bergan). Because the court's denial of the CR 60 motion was a proper exercise of its discretion, we affirm.
I
In 2002 and 2003, Bergan represented Freeman's son in a marital dissolution case. Freeman paid his son's legal bills, sending about $29,000 directly to the firm to maintain a retainer account. Bergan did not dispute that it represented Freeman's son and that Freeman paid the funds. However, Bergan denied that Freeman himself was a client of the firm, and that he had a contract with the firm. Bergan contended it actively litigated the complicated case, but withdrew as counsel before the dissolution trial. Bergan maintained that Freeman's son authorized the firm to withdraw after he was sentenced to 20 years in prison.
In August 2005, Freeman filed a complaint against Bergan, alleging that the firm had over-billed him. Freeman's son was not a party to the suit. On August 15, 2007, the trial court dismissed Freeman's case with prejudice, and imposed sanctions on Freeman in the amount of $5,691.00, pursuant to CR 11. Although Freeman appealed, he did not prosecute his appeal and it was dismissed by a commissioner of this court on January 14, 2008. Freeman's motion to modify the commissioner's ruling was denied. Our Supreme Court denied his petition for review on December 2, 2008. On January 2, 2009, this court certified that the January 14, 2008 dismissal became the decision terminating review in the case, and mandated the case to the King County Superior Court.
On May 5, 2009, Freeman filed a complaint and independent action seeking to vacate the August 2007 judgment. He also requested $125,000 in damages, statutory costs, and unspecified additional equitable relief. Again, Freeman's son was not a party. Freeman alleged seven causes of action based on his contentions that Bergan committed fraud and made false statements to the court between September 12, 2005 and August 18, 2008. Freeman's allegations concerned Bergan's statements that there was no contractual "retainer agreement" between Freeman and Bergan, an issue central to his earlier failed lawsuit. On July 16, 2009, the trial court granted Bergan's motion for judgment on the pleadings, pursuant to CR 12(c), and dismissed Freeman's claims with prejudice.
CR 60(c) provides: "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding." Trial courts have broad discretionary power to fashion equitable remedies. Niemann v. Vaughn Cmty. Church, 154 Wn.2d 365, 385, 113 P.3d 463 (2005).
Thereafter, Freeman moved to vacate the July 2009 judgment, citing CR 60(4) and (11). The trial court denied Freeman's motion.
II
Freeman appeals from the trial court's order denying his CR 60(b) motion to vacate. He does not appeal from the underlying judgment dismissing his claims. The exclusive procedure to attack an allegedly defective judgment is by appeal from the judgment, not by appeal from a denial of a CR 60 motion. Bjurstrom v. Campbell, 27 Wn. App. 449, 451, 618 P.2d 533 (1980). Accordingly, only the propriety of the denial, not the alleged impropriety of the underlying judgment, is before this court. Bjurstrom, 27 Wn. App. at 450-51 (citing Browder v. Dep't of Corrections, 434 U.S. 257, 263 n. 7, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978)); RAP 2.2(a)(10) (appeal allowed from ruling on motion to vacate); RAP 2.4(c) (appeal from CR 60 ruling does not bring the final judgment up for review).
The only trial court order identified in Freeman's notice of appeal is the order denying his motion to vacate the July 16, 2009 judgment.
The decision to vacate a judgment under CR 60 is a matter of trial court discretion. Jones v. Home Care of Wash., Inc., 152 Wn. App. 674, 679, 216 P.3d 1106 (2009),review denied, 169 Wn.2d 1002 (2010). We will not disturb the trial court's decision unless it was manifestly unreasonable, or was based on untenable grounds or untenable reasons. In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118 (1990).
Freeman first argues that he was entitled to vacatur on the ground of fraud, citing CR 60(b)(4). We disagree.
CR 60(b)(4) provides that "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding" for "[f]raud . . . misrepresentation, or other misconduct of an adverse party." The party attacking a judgment under CR 60(b)(4) must establish by clear and convincing evidence the existence of fraud that prevented it from fully and fairly presenting its case.Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990) (citing Peoples State Bank v. Hickey, 55 Wn. App. 367, 372, 777 P.2d 1056 (1989)). Our review is limited to determining whether the evidence shows that fraud, misrepresentation, or misconduct was "highly probable."Dalton v. State, 130 Wn. App. 653, 666, 124 P.3d 305 (2005). Mere allegations of fraud or impropriety are insufficient to warrant relief. Allison v. Boondock's, Sundecker's, Greenthumb's, Inc., 36 Wn. App. 280, 285-86, 673 P.2d 634 (1983); Bergren v. Adams County, 8 Wn. App. 853, 857, 509 P.2d 661 (1973).
Because the judgment at issue was based only on the pleadings, in order to prevail, Freeman would need to demonstrate that Bergan's pleadings were themselves fraudulent. However, the record, including Freeman's own pleadings, amply reveals that Bergan's statements were likely true. In its pleadings, Bergan consistently adhered to its position that it represented Freeman's son, not Freeman, and applied Freeman's payments to the son's retainer fee without a separate contract with Freeman. This was the substance of the earlier lawsuit in which Bergan prevailed. The record does not demonstrate a "high probability" that the 2009 judgment of dismissal was obtained by fraud that prevented Freeman from fully presenting his case. The trial court correctly ruled that Freeman was not entitled to relief under CR 60(b)(4). Dalton, 130 Wn. App. at 666-68.
Freeman next argues that he was entitled to vacatur under CR 60(b)(11), the section of the rule allowing for relief from judgment for "any other reason justifying relief." Specifically, Freeman argues that Bergan failed to meet its burdens of proof and persuasion, and that the trial court erred in granting Bergan's motion for judgment on the pleadings. However, the use of CR 60(b)(11) is confined to situations involving extraordinary circumstances not covered by other sections of the rule. Barr v. MacGugan, 119 Wn. App. 43, 45-46, 78 P.3d 660 (2003); In re Marriage of Hammack, 114 Wn. App. 805, 809-10, 60 P.3d 663 (2003); Tang, 57 Wn. App. at 655-56. This case presents no such scenario.
Freeman argues that the court made an erroneous ruling, not that the alleged mistake was attributable to extraordinary circumstances. A trial court's power to vacate judgments is not a means for the court to correct alleged errors of law.Bjurstrom, 27 Wn. App. at 451 (citing In re Ellern, 23 Wn.2d 219, 222, 160 P.2d 639 (1945); In re Estate of Jones, 116 Wash. 424, 428, 199 P. 734 (1921)). Freeman's motion to vacate did not present exceptional circumstances warranting relief under CR 60(b)(11).Tang, 57 Wn. App. at 655-56.
Finally, Freeman claims on appeal that the trial court incorrectly applied the doctrines of collateral estoppel or res judicata in granting Bergan's motion for judgment on the pleadings. Such alleged errors of law were not properly before the trial court on Freeman's CR 60 motion to vacate, and are not before this court in this appeal. LeMond v. Dep't of Licensing, 143 Wn. App. 797, 803, 180 P.3d 829 (2008) (whether collateral estoppel applies is a question of law);Landry v. Luscher, 95 Wn. App. 779, 782-83, 976 P.2d 1274 (1999) (whether res judicata applies is a question of law). Had Freeman wished to challenge the judgment on the basis of legal errors, an appeal should have been taken from the final judgment, not from the ruling on the motion to vacate.Bjurstrom, 27 Wn. App. at 451.
Affirmed.
We concur: