Opinion
No. 31863-6-II
Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 98-2-00980-3. Judgment or order under review. Date filed: 05/10/2004. Judge signing: Hon. James E Warme.
Counsel for Appellant(s), Michael Allen Claxton, Attorney at Law, 1000 12th Ave Ste 2, PO Box 1549, Longview, WA 98632-7934.
Counsel for Respondent(s), Michael William Frey, Attorney at Law, 600 Royal St Ste B, Kelso, WA 98626-1167.
Mark S. Horn appeals an order vacating his favorable judgment in a property line dispute with Wesco Properties, Inc. He argues that (1) Wesco failed to show he fraudulently presented inaccurate survey information, (2) the evidence on which Wesco relies is not newly-discovered, and (3) Wesco's motion to vacate the judgment was untimely. Agreeing that Wesco failed to show extraordinary circumstances justifying vacation of a final judgment, we reverse.
FACTS I. Previous Appeal From Judgment
In the first appeal in this case, we affirmed a trial court ruling in Horn's favor, describing the facts as follows:
At issue is the boundary between Mt. Pleasant Acreage Tracts and the Carrolton Crest Plat. The boundary runs approximately north-south. The northern portion of the boundary runs between Carrolton Crest lot 1 and Mt. Pleasant lot 6. At the southern end, the border runs between Carrolton Crest lot 10 and Mt. Pleasant lot 19. Horn owns lots 17 and 18 of Mt. Pleasant Tract. Lot 18 also lies on the Mt. Pleasant-Carrolton Crest boundary. Horn's mother owns lots 15 and 16, and he resides with her on lot 15.
When Horn was 15 years old, his family built a fence to contain cattle on lot 18. Horn testified that the fence was built in the field, approximately 25 feet short of the actual boundary because the boundary line was covered in overgrown vegetation. Horn's mother transferred lots 17 and 18 to him in 1997. Shortly thereafter, he noticed that there had been some logging and clearing on the lot adjacent to his. He walked along his property line and discovered Wesco Properties, Inc. had cleared the land up to the cattle fence on lot 18. Both Horn and Wesco hired surveyors to determine the correct boundary line. The surveys disagreed; Horn filed this lawsuit, and the matter was resolved in Horn's favor.
Horn's surveyors were Marvin Dunn and Norman Oleson. They testified that they found a monument consisting of an iron bar in a mound of stone at the corner of lots 10 and 19, the southern point of the common boundary. They also found an iron pipe monument at the northeast corner of Carrollton Crest. These were the same monuments used in an earlier survey done by Cecil Donnely. The line between the monuments was consistent with the boundary alleged by Horn.
Wesco hired Dorrell A. Germunson in 1997 to run a boundary line along the west line of the Mt. Pleasant tracts. Germunson testified that he found an iron rod in a stump, which he relied upon in his initial survey as the southeast corner of Wesco's property. Germunson's first survey was similar to Dunn and Oleson's. However, Horn complained to the Board of Registration for Professional Engineers and Land Surveyors, and the Board asked Germunson to redo it. In his second survey, Germunson used a legal description from a 1928 deed and disregarded the iron rod at the southern end of the boundary. The second survey placed the boundary on the fence line, 25 feet into lot 18.
Wesco also hired Phil Gustin to survey the outside perimeter of Carrolton Crest. Gustin testified he found the iron pipe in the northeast corner of Carrolton Crest and used it to plot the boundary line. However, he used the distances shown on the tract, and monuments pertinent to Carrolton Crest's western boundary to determine the southern point of the common boundary.
The court found that (1) the northern monument was not disputed; (2) three different surveyors found the iron pipe monument to the south and relied on it to draw their maps; (3) Germunson's second survey was questionable because, as he admitted, he was irritated about Horn's complaint; and (4) in determining property lines, monuments take priority over metes and bounds.
Wesco v. Horn, No. 28890-7-II, Ruling Affirming Judgment at 1-3 (August 1, 2003). Clerk's Papers (CP) 37-39 (footnote omitted). We ruled that substantial evidence supported the trial court's findings and affirmed. Our mandate followed on December 16, 2003.
II. Motion To Vacate Judgment and Second Appeal
In January 2004, apparently in response to Horn's attempt to have Wesco remove a pipeline from the disputed strip, Wesco filed a motion to vacate the superior court ruling that we had affirmed on appeal. Filed under CR 60(b)(4), Wesco alleged that Horn had introduced fraudulent testimony and a fraudulent survey at trial, causing the trial court to enter judgment in Horn's favor. Wesco relied on disciplinary proceedings against Horn's surveyors resulting from a complaint Wesco's surveyor had filed against them.
The superior court agreed with Wesco's contentions, entered an order vacating judgment, and set the matter for a new trial. The court reasoned:
Based on the argument of counsel, the pleadings and evidence presented, the Court finds that the judgment of May 29, 2002 was directly procured by the Plaintiff's use of fraudulent evidence at trial, to wit: fraudulent testimony of Marvin Dunn to the effect of his qualifications as a licensed surveyor and his determinations with regard to the ultimate issue at trial; a fraudulent survey done by Norman Oleson recorded on June 1, 2001, subsequently discovered to be a failure on numerous counts by the State of Washington Board of Registration for Professional Engineers and Land Surveyors; and fraudulent testimony of Norman Oleson to the effect of the existing conditions and measured inconsistencies, methods of surveying as well as other factors underlying his survey conclusions on the ultimate issue at trial.
CP at 40-41.
Horn appealed the trial court's vacation of judgment. Wesco filed a motion on the merits, which this court denied on January 12, 2005.
RAP 2.2(a)(10) allows an appeal from an order vacating a judgment even when the matter is set for a new trial.
ANALYSIS
Under CR 60(b)(4), a court may grant relief from judgment for fraud when the moving party shows by clear, cogent, and convincing evidence that (1) the adversary made a knowing and false representation of material fact; (2) the moving party was ignorant of that falsity; (3) the moving party reasonably relied on the representation; and (4) the moving party suffered damage. Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990), review denied, 116 Wn.2d 1009 (1991); N. Pac. Plywood, Inc. v. Access Rd. Builders, Inc., 29 Wn. App. 228, 232, 628 P.2d 482, review denied, 96 Wn.2d 1002 (1981).
CR 60(b)(4) provides:
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:
. . . . .
(4) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
A party may also show that the adversary's misrepresentation caused the entry of a judgment such that the losing party was prevented from fully and fairly presenting its case or defense. Lindgren, 58 Wn. App. at 596. To prove a misrepresentation, there must be 'specific knowledge and intent by the wrongdoer.' Sarvis v. Land Res., Inc., 62 Wn. App. 888, 893, 815 P.2d 840 (1991), review denied, 118 Wn.2d 1020 (1992). 'It is immaterial whether the misrepresentation was innocent or willful. The effect is the same whether the misrepresentation was innocent, the result of carelessness, or deliberate.' Peoples State Bank v. Hickey, 55 Wn. App. 367, 371, 777 P.2d 1056 (citing Bros Inc. v. W.E. Grace Mfg. Co., 351 F.2d 208, 211 (5th Cir. 1965) and Plattner v. Strick Corp., 102 F.R.D. 612, 614 (N.D.Ill. 1984)), review denied, 113 Wn.2d 1029 (1989).
The rule is aimed at judgments which were unfairly obtained, not at those which are factually incorrect. For this reason, the conduct must be such that the losing party was prevented from fully and fairly presenting its case or defense. Plattner v. Strick Corp., supra at 615-16 (citing Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 421, 43 S. Ct. 458, 67 L. Ed. 719 (1923)); Atchison, T[opeka] S[anta] F[e] Ry. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957).
Peoples State Bank, 55 Wn. App. at 372.
Finally, we note that vacating a final judgment is an extraordinary remedy, granted only in extraordinary circumstances. Metlyn Realty Corp. v. Esmark, 763 F.2d 826, 831 (7th Cir. 1985) (quoting C.K.S. Eng'r, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir. 1984)).
Here, Wesco failed to meet at least the first of the elements of proof set out above: Wesco failed to show that Horn made a knowing and false representation of material fact. There is no evidence in the record, much less clear and convincing evidence, that Horn procured false testimony. Wesco does not even make such a claim. Rather, the record shows that Horn procured experts Dunn and Oleson to establish his property line. While in hindsight it appears that Dunn and Oleson were careless, inaccurate, and misrepresented their surveyor qualifications, Horn was not responsible for any inaccurate details they provided. Metlyn Realty, 763 F.2d at 833.
Furthermore, at the first trial, Wesco used its own survey by Phil Gustin to challenge vigorously Horn's Dunn-Oleson survey, the Donnelly survey, and the first Germunson survey. And, according to its own proposed findings of fact, Wesco was aware at the time that Dunn was not a licensed surveyor. In essence, then, Wesco has previously challenged the accuracy of Horn's Dunn-Oleson survey and lost this point at the first trial.
Wesco responds that it has established fraud because the State Board's investigation revealed that
Mr. Dunn and Mr. Oleson intentionally ignored the rules of surveying, made up dimensions that did not exist, disregarded a highway centerline crucial to the survey, recorded an ambiguous survey which upon inspection with the field notes, failed to meet error of closure standards . . . evidence of the Dunn-Oleson line concurring with Cecil Donnely's previous survey was false . . . evidence that both Mr. Dunn and Mr. Oleson testified falsely that they were licensed surveyor's [sic] in the state of Oregon at the time of trial.
Br. of Respondent at 3-4.
Wesco acknowledges it has no proof that Horn procured false testimony. Rather, it asserts that Dunn's and Oleson's fraudulent testimony led to the original trial court's finding that the Dunn-Oleson line was the true boundary, the crux of the matter at issue.
Wesco had ample opportunity at the original trial to present its case and defenses, to argue about the quality or lack of quality of the surveys and surveyors, and to point out extensively any deficiencies in both the Dunn-Oleson survey and their surveying methods. That the State Board some years later found deficiencies in the Dunn-Oleson survey could likely persuade a trial court not to rely on that survey. But absent proof that, in presenting this survey at the original trial, Horn deliberately introduced false testimony or misled the original trial court, the interests of finality must prevail. See Pettet v. Wonders, 23 Wn. App. 795, 800-01, 599 P.2d 1297, review denied, 93 Wn.2d 1002 (1979) (forgery so serious it permeated the entire trial record). Thus, Wesco has failed to establish it was entitled to a new trial under CR 60(b)(4).
Because Wesco failed to establish that the judgment directly resulted from the fraud, misrepresentation, or misconduct of an adverse party, we need not address Horn's remaining claims about Wesco's lack of diligence and jurisdiction.
We hold that the trial court erred in vacating the judgment in Horn's favor and reverse.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and VAN DEREN, J., Concur.