Opinion
No. 56714-4-I.
June 26, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-2-39887-0, Steven C. Gonzalez, J., entered July 18, 2005.
Counsel for Appellant(s), James N. Jr Jory, Anderson Law Group PLLC, 20819 72nd Ave S Ste 110, Kent, WA 98032-2390.
Counsel for Respondent(s), David Ruzumna, Law Office of David Ruzumna PLLC, 1411 4th Ave Ste 1510, Seattle, WA 98101-2247.
Affirmed by unpublished per curiam opinion.
A ruling denying a motion to vacate or amend a judgment is reviewed for abuse of discretion. Because the motion to vacate or amend the original judgment in this case was untimely and lacked merit in any event, the trial court did not abuse its discretion in denying it. We affirm.
FACTS
In 2002, the Anderson Law Group (ALG) agreed to provide its employee, attorney David Ruzumna, with a company car. When Ruzumna left ALG in 2003, he returned the leased car to ALG attorney Timothy McGuinness. Ruzumna also prepared, and McGuinness signed, the following indemnity agreement: Tim McGuinness agrees to indemnify, defend, and hold Ruzumna harmless for any and all liability arising from McGuinness or McGuinness' agents (or others using the vehicle w/or w/o McGuinness' permission) use or possession of the vehicle, as well as all lease payments and disposition fees (including excess mileage charges) associated w/the vehicle.
In September 2003, the lessor attempted to repossess the vehicle from Ruzumna for failure to make lease payments. Ruzumna referred the lessor to McGuinness, who ultimately returned the car to the lessor. In October 2003, the lessor billed Ruzumna for approximately $7,021, the balance due under the lease.
In October 2003, Ruzumna sued McGuinness, McGuinness' wife, and their marital community for breach of contract, monies due, promissory estoppel, and unjust enrichment.
In March 2004, the trial court granted summary judgment for Ruzumna and ordered McGuinness to pay him $7,021.16, prejudgment interest, costs, and $4,843 in attorney fees. In July 2004, Ruzumna settled with the lessor for $4,823.70.
McGuinness appealed the judgment, arguing that the indemnity agreement was invalid. Meanwhile, Ruzumna commenced proceedings to collect the judgment, and McGuinness paid the judgment amount into the court registry. This court subsequently affirmed the judgment.
Ruzumna then moved the court to disburse the judgment and to award supplemental fees of $5,919.46. McGuinness resisted the motion, arguing that Ruzumna had failed to adequately support his supplemental fee request. On May 31, 2005, the trial court entered a supplemental judgment awarding Ruzumna $5,919.46 in additional fees. McGuinness moved for reconsideration, arguing that the court had failed to apply the lodestar criteria for reasonable attorney fees or enter findings supporting the award. On June 14, 2005, the court denied the motion. McGuinness did not appeal.
On June 30, 2005, McGuinness moved to vacate or, alternatively, amend `the judgment entered on March 23, 2004 and affirmed on appeal.' In a supporting declaration, McGuinness alleged he learned after the supplemental fee award that Ruzumna had settled the underlying action with the lessor in 2004 for $4,823. With interest, the total amount Ruzumna paid the lessor was $5,051, over $2,000 less than the $7,355 judgment Ruzumna obtained against McGuinness under the indemnity agreement. McGuinness argued that the original judgment should be vacated or, alternatively, amended to reflect Ruzumna' actual loss.
On July 18, 2005, the trial court denied the motion to vacate. On August 16, 2005, McGuinness appealed that decision.
DECISION
McGuinness contends the trial court abused its discretion in denying his motion to vacate or amend the original judgment. He argues that the court should have either vacated or amended the judgment because it did not reflect Ruzumna's actual loss and the amount owing under the indemnity agreement. We disagree for several reasons.
We review the denial of a motion to vacate under CR 60 for abuse of discretion. DeYoung v. Cenex Ltd., 100 Wn. App. 885, 894, 1 P.3d 587 (2000).
First, the motion to vacate or amend the judgment was untimely. The motion, which was filed on June 30, 2005 and relied on CR 59 and CR 60(b)(1), (3), and (11), sought vacation or amendment of `the judgment entered on March 23, 2004 and affirmed on appeal on February 22, 2005.' To the extent the motion relied on CR 59(a), it was untimely since it was filed well beyond the 10-day periods set forth in CR 59(b) and (h). To the extent the motion relied on CR 60(b)(1) and (3), it was untimely since it was filed more than one year after the challenged judgment. CR 60(b). And assuming without deciding that the motion was timely for purposes of CR 60(b)(11), the trial court did not abuse its discretion in denying relief under that subsection of the rule. CR 60(b)(11) allows vacation of an order or final judgment for `[a]ny other reason justifying relief' from judgment. Cases have limited the use of CR 60(b)(11) "to situations involving extraordinary circumstances not covered by any other section of the rule." The circumstances alleged here are covered by CR 60(b)(1) or (3). There is no basis for relief under CR 60(b)(11).
(Emphasis added).
Tang, 57 Wn. App. at 655 (quoting In re Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985)).
McGuinness also argued below that the court had authority to vacate the judgment under `Cr 60(a)(9) . . . in order to obtain substantial justice.' No such rule exists. McGuinness presumably meant to cite CR 59(a)(9), which allows a new trial when `substantial justice has not been done.' But as previously noted, a motion for relief under that rule must be brought within 10 days of the judgment. Because McGuinness' motion was filed more than a year after the judgment at issue here, he cannot obtain relief under CR 59(a)(9).
Second, even if the motion could be construed as challenging the May 31, 2005 supplemental judgment awarding additional fees, it was still properly denied. The motion to amend under CR 59 was untimely as to the May 2005 supplemental judgment because it was not filed within 10 days of that judgment. Although the CR 60 motion to vacate would be timely as to that judgment, nothing in the motion challenged the additional fee award. Therefore, McGuinness' current challenges to that award need not be considered since they are raised for the first time on appeal. RAP 2.5(a). There is thus no basis to vacate the 2005 supplemental judgment.
CR 59(h).
Finally, setting aside the untimeliness of the motions, McGuinness' argument that newly discovered evidence and indemnity principles warrant relief from the original judgment is unpersuasive. He points out that Ruzumna ultimately paid the lessor several thousand dollars less than the amount the court awarded him under the indemnity agreement. He also alleges that he did not learn of that fact until long after entry of the original judgment. But the essence of McGuinness' argument is that he was only liable under the indemnity agreement for the amount Ruzumna actually paid to the lessor. That argument could have been made prior to or during the appeal from the original judgment, which ordered McGuinness to pay the debt asserted by the lessor, rather than the amount Ruzumna actually paid. CR 60(b) is not a substitute for a direct appeal and `is not intended to be used as a means for the court to review or revise its own final judgments, or to correct any errors of law into which it may have fallen.' Ruzumna's request for attorney fees on appeal under RAP 18.1(b) is denied.
Tang, 57 Wn. App. at 654. A motion to vacate is not a substitute for a direct appeal. Bjurstrom v. Campbell, 27 Wn. App. 449, 451, 618 P.2d 533 (1980). Judgment in this case arguably contained an error of law in that it ordered indemnity for an amount the indemnitor had not yet paid.
Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811 (1947) (quoting 1 Black on Judgments (2d ed.) 506, § 329).
Affirmed.
GROSSE, ELLINGTON and SCHINDLER, JJ.