Opinion
No. 64878-1-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for Skagit County, No. 08-2-00439-5, Susan K. Cook, J., entered February 5, 2010.
Affirmed by unpublished opinion per Grosse, J., concurred in by Appelwick and Schindler, JJ.
Newly discovered evidence justifies vacation of a judgment only if the evidence is material and could not, by due diligence, have been discovered in time to move for a new trial. Because the newly discovered evidence in this case satisfies neither of these prerequisites, and because appellant otherwise fails to demonstrate error, we affirm the order denying appellant's motion to vacate, approving the referee's report and proposed sale, and directing the parties to execute closing documents.
FACTS
In 1998, Dennis Diedrich filed suit in Snohomish County to dissolve his meretricious relationship with Sue Sherman and to quiet title to a 40-acre tract they purchased in Skagit County. The court ordered Diedrich to arrange for the property to be logged. Proceeds from the logging were to be used to subdivide the tract into two parcels. Sherman would then choose and receive title to one of the parcels. The parties subsequently logged the property and split the proceeds but a subdivision never occurred.
In March 2008, Sherman filed the present action in Skagit County for partition and negligence. The complaint alleged that Diedrich had negligently failed to subdivide the property and that, due to a zoning change, the parcel could now be subdivided only by suing Skagit County. Sherman requested a judgment partitioning Diedrich's half of the 40 acres to her and awarding damages for his negligent failure to subdivide the property.
In March 2009, the Skagit County Superior Court dismissed Sherman's negligence and contempt claims on summary judgment and ordered the property sold. The court concluded that a "physical subdivision is impossible" and granted Diedrich a "partition of the property by sale, which is the only other available remedy when physical division of the property cannot be accomplished." Sherman appealed and this court affirmed in an unpublished opinion. Sherman v. Diedrich, noted at 154 Wn. App. 1006 (2010).
In December 2009, a court-appointed referee filed a report recommending that the subject property be sold to the Washington State Department of Natural Resources (DNR) for $63,000. Diedrich asked the court to approve the sale.
In February 2010, Sherman filed a motion opposing the proposed sale and a separate motion to vacate the 2009 judgment that ordered a partition by sale. In a supporting declaration, she alleged, among other things, that she was in the process of suing DNR for "land locking" the property, that DNR was "trying to purchase this property to avoid a lawsuit," that the referee was biased, and that newly discovered evidence showed that the property was subdividable and therefore need not be sold. In her motion to vacate, she alleged that a county employee had recently informed her that "the property was dividable by interest, with each party having a separate 20 acre division." In his response, Diedrich said he spoke to the same county employee and confirmed that the county would not object to a sale of an interest in the property. He argued, however, that this evidence was neither material nor newly discovered.
Following a hearing on February 5, 2010, the superior court denied Sherman's motion to vacate, approved the referee's report, and ordered Diedrich and Sherman to "sign all documents necessary and incidental to closing the sale to the State of Washington, Department of Natural Resources for the sum of $63,000." Sherman appeals.
Diedrich moves to strike exhibits attached to Sherman's briefs on appeal. The motion is granted as to all exhibits that were not included in the clerk's papers or otherwise properly made a part of the record on appeal.
ANALYSIS
Sherman first contends the court abused its discretion in denying her motion to vacate the March 2009 summary judgment. She claims newly discovered evidence warranted vacation of the judgment. There was no abuse of discretion.
We review the denial of a motion to vacate for abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000).
CR 60(b)(3) provides that a court may vacate a judgment on the basis of "[n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b)." A court will not grant vacation under this rule unless the newly discovered evidence is material. In her motion to vacate, Sherman alleged that an employee in the Skagit County Planning and Development Department told her in January 2010 that the parties' 40-acre parcel "was dividable by interest, with each party having a separate 20 acre division." But she made no showing that this evidence could not have been timely discovered through the exercise of due diligence. Nor did she demonstrate that this evidence was material to the 2009 judgment. As Diedrich points out, evidence that the property can be subdivided by interest does not undermine the conclusion in the 2009 judgment that the " physical subdivision" ordered by the court in 1998 was impossible.
Vance v. Offices of Thurston County Comm'rs, 117 Wn. App. 660, 671, 71 P.3d 680 (2003).
(Emphasis added.)
Sherman next assigns error to the superior court's failure to apply proof of service requirements to Diedrich's motion to approve the proposed sale. Nothing in the record before us demonstrates that this argument was properly raised below. Sherman has not provided a verbatim, narrative, or agreed report of proceedings for the hearing on the motion. RAP 9.1(b). And her conclusory statement below that she did "not feel she has been given the time allowed under the law to respond" is insufficient to preserve her current claim of noncompliance with specific service rules. Although Sherman made more detailed arguments regarding service in her February 26, 2010 motion to vacate the order approving the sale, that motion was filed 20 days after entry of the order being appealed and 18 days after Sherman filed her notice of appeal. It is therefore beyond the scope of this appeal. Finally, Sherman offers no basis for raising this claim for the first time on appeal. See RAP 2.5(a).
We note that Sherman has not provided or appealed the court's March 31, 2010 letter ruling on the motion.
Sherman also contends the court erred "in ignoring the misrepresentation of Referee Jeff Ingman of Plaintiff's property, being unfair and b[iased, and] acting as a [dual] agent." She fails, however, to support this contention with meaningful analysis or authority. We therefore decline to consider it.
An appellant proceeding pro se must comply with all procedural rules, In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993), and failure to do so may preclude review. State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999). This court generally will not consider arguments that are unsupported by pertinent authority or meaningful analysis. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments not supported by authority); State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (insufficient argument); RAP 10.3(a).
Last, Sherman contends the sale violated RCW 7.52.360 because it was sold by one government entity (the court) to another (DNR), and because the referee knew the DNR representative involved in the sale and was aware that Sherman was suing DNR for allegedly landlocking her property. This statutory challenge was not raised below, and Sherman offers no basis to raise it for the first time on appeal. In any event, the claim is meritless. The sale was not between government entities because the court was not a party to the sale. And Sherman fails to demonstrate how the referee's alleged familiarity with the DNR representative and knowledge of her lawsuit against DNR violates the statute.
RCW 7.52.360 provides in part that no referee in a partition action "shall be interested in any purchase [.]"
Affirmed.