Opinion
Nos. 25409-7-III; 26215-4-III.
July 3, 2008.
Appeals from judgments of the Superior Court for Spokane County, No. 05-2-01232-8, Harold D. Clarke III, J., entered June 6, 2006 and February 9, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Brown, J.
This appeal follows the summary dismissal of a number of causes of action against a credit union following a nonjudicial foreclosure. The credit union appropriately proceeded with the foreclosure and there is no showing to the contrary. We therefore affirm the summary dismissal of the creditor's complaint.
FACTS
U.R.M. Credit Union loaned Stanley Sloan money in 1992. The loan contract was governed by Washington law. Mr. Sloan secured the loan with property in Post Falls, Idaho. The credit union recorded the deed of trust in Kootenai County, Idaho.
Mountain View Credit Union succeeded U.R.M. Mountain View then made two more loans to Mr. Sloan in 1993 and 1997. Again, both were secured by Mr. Sloan's Post Falls property. The loan documents list Mr. Sloan's address as 6007 East 12th Avenue, Spokane, Washington.
Mr. Sloan defaulted on the two loans in August 2002. Mountain View attempted to collect the amount due on both loans. Mr. Sloan told Mountain View's collection manager that he lived at 12403 East 3rd Avenue, Spokane, Washington. Clerk's Papers (CP) at 337.
Mountain View's attorney began foreclosure proceedings on the Post Falls property. Its lawyer mailed a notice of default and sale to Mr. Sloan at his East 3rd Avenue address. The lawyer tried to serve Mr. Sloan at the Post Falls property with notices of default and trustee's sale. He posted the notices on the property when servers failed to personally serve Mr. Sloan. The credit union also published the notice in a Kootenai County newspaper.
Mr. Sloan said he never actually received the notice because it was intercepted by his brother. Mr. Sloan attempted to pay off one of the defaulted loans and bring the second loan current. Mountain View refused to cash the check unless Mr. Sloan paid off both defaulted loans. It also told Mr. Sloan that the check would be "held" for five days. CP at 336. Mr. Sloan left Mountain View without depositing or cashing his check because Mountain View would not accept the check without placing a "hold" on it. CP at 337.
Mountain View sold Mr. Sloan's Post Falls property at a non-judicial foreclosure sale on March 11, 2003. It paid Mr. Sloan the excess funds.
Mountain View merged with Horizon Credit Union in February 2004. CP at 55. Horizon is the surviving entity. Id.
Mr. Sloan sued Mountain View, the trustee, the credit union's lawyer, and several Mountain View officers and employees for fraud, negligence, and outrage. He agreed to dismiss the case against the officers and employees. The remaining defendants were Horizon, the trustee, and the lawyer (we will collectively refer to them as "Mountain View").
Mountain View answered, denied the allegations, and asserted affirmative defenses. Mountain View moved to dismiss. The trial court granted the motion. Mr. Sloan then moved to vacate the judgment and amend his complaint. He argued for the first time that Mountain View mailed foreclosure notices to the wrong address (his East 3rd Avenue address instead of his East 12th Avenue address). The court denied Mr. Sloan's motion to vacate and amend.
DISCUSSION
Court's Refusal to Allow Amendment of Complaint
We review a trial court's decision to grant or deny a motion to amend pleadings for abuse of discretion. Del Guzzi Constr. Co. v. Global Nw. Ltd., 105 Wn.2d 878, 888, 719 P.2d 120 (1986). A court abuses its discretion when it exercises that discretion in a way that is "manifestly unreasonable, or . . . on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Mr. Sloan argues that the trial court erred when it denied his motion to amend his complaint to add a breach of contract claim.
A court should freely grant leave to amend when justice requires unless the opposing party would be prejudiced. CR 15(a); Olson v. Roberts Schaeffer Co., 25 Wn. App. 225, 227, 607 P.2d 319 (1980). The trial court, however, appropriately denies a motion to amend if an amended claim is duplicative or futile. Syputa v. Druck, Inc., 90 Wn. App. 638, 649, 954 P.2d 279 (1998); Shelton v. Azar, Inc., 90 Wn. App. 923, 928, 954 P.2d 352 (1998) (holding that the trial court abused its discretion when it granted a motion to compel because pursuit of new claim would be futile).
We consider on appeal only those questions raised by the appellant's assignments of error. US W. Commc'ns, Inc. v. Utils. Transp. Comm'n, 134 Wn.2d 74, 112, 949 P.2d 1337 (1997); RAP 10.3(g). An appellant's assignment of error is waived when it is neither stated nor argued. Puget Sound Plywood, Inc. v. Mester, 86 Wn.2d 135, 142, 542 P.2d 756 (1975).
Mr. Sloan does not brief the issue of whether "the trial court's denial of plaintiff's motion to amend his complaint regarding breach of contract constitutes an abuse of discretion." Appellant's Br. at 3. He merely states that the trial court denied his oral motion to amend his complaint to add a breach of contract claim. And he notes that he moved to amend his complaint at the summary judgment hearing. Mr. Sloan waived this issue by not arguing it. Puget Sound Plywood, 86 Wn.2d at 142.
Moreover, the record is not sufficient for us to review the issue. Bulzomi v. Dep't of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994). The record does not contain an order that denies Mr. Sloan's motion to amend. And it does not contain a transcript of the summary judgment hearing. There is nothing in the record on this issue to review.
Finally, the trial court's summary judgment order suggests that the court considered the breach of contract claim and dismissed it as a matter of law. The order states: "It should be noted Washington does not recognize a contract claim as to the foreclosure process itself. If that is a claim in this case, it fails a as matter of law. Udall v. T.D. Escrow Services, Inc., 132 WA App. 290[, 130 P.3d 908] (2006)[, rev'd on other grounds, 159 Wn.2d 903, 154 P.3d 882 (2007)]." CP at 92.
Mr. Sloan waived this issue and the record is not sufficient to permit review, in any event. Last Known Address
Mr. Sloan next contends that Mountain View breached its contract with him by failing to notify him at his East 12th Avenue address.
We review an order granting summary judgment de novo. Seybold v. Neu, 105 Wn. App. 666, 675, 19 P.3d 1068 (2001). A trial court should grant summary judgment in favor of a defendant only if the plaintiff fails to establish a prima facie case for an essential element of his claim. Id. at 676. We view the evidence and any inferences from that evidence in a light most favorable to the nonmoving party. Miller v. Jacoby, 145 Wn.2d 65, 71, 33 P.3d 68 (2001). We limit review to the record before the trial court. Wagner Dev., Inc. v. Fid. Deposit Co. of Md., 95 Wn. App. 896, 898 n. 1, 977 P.2d 639 (1999). In other words, we will not consider facts that were not presented to the trial court at the time it ruled on the motion for summary judgment.
Mr. Sloan does not argue that the court's order was improper on the record before it. He argues instead that summary judgment was improper because of a fact he discovered after the trial court entered its order granting summary judgment. Mr. Sloan contended that summary judgment was inappropriate because there is a genuine issue of fact as to whether Mountain View gave its attorney Mr. Sloan's correct address. Mr. Sloan concedes that this question of fact did not come to his attention until after the trial court entered summary judgment.
The record on summary judgment shows that Mr. Sloan lived at 12403 East 3rd Avenue, Spokane, Washington. It shows that this address was Mountain View's last known address for Mr. Sloan. Mountain View's attorney sent notices of default and foreclosure sale to this address.
Mr. Sloan sued Mountain View for negligence, fraud, and outrage. The trial court also considered whether Mr. Sloan raised a valid breach of contract claim. Mr. Sloan had to raise an issue of fact as to each element of his asserted causes of action to avoid summary judgment. Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 568, 27 P.3d 1208 (2001). He had to do so by setting forth specific facts. Hauber v. Yakima County, 107 Wn. App. 437, 448, 27 P.3d 257 (2001), aff'd, 147 Wn.2d 655, 56 P.3d 559 (2002). The summary judgment record does not support any of Mr. Sloan's causes of action.
Negligence: A cause of action in negligence requires a duty, breach of that duty, and damages that proximately result from the breach. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998).
The record suggests that Mountain View had a duty (pursuant to Idaho Code § 45-1506) to send notice of foreclosure to Mr. Sloan's last known address. It shows that Mountain View sent Mr. Sloan's notice of foreclosure to 12403 East 3rd Avenue, Spokane, Washington. Mr. Sloan told Mountain View that he lived at the East 3rd Avenue address, contrary to what Mr. Sloan now argues. He admitted that he lived at the address throughout the default and foreclosure proceedings. He did not argue that notice was not sent to the correct address. He argued that notice was not received.
The record does not show that Mountain View breached its duty to notify Mr. Sloan of foreclosure. It sent notices to what Mr. Sloan said was his "last known address." The trial court properly concluded that Mr. Sloan failed to establish his negligence claim.
Fraud: "The nine elements of fraud are: (1) representation of an existing fact; (2) materiality; (3) falsity; (4) the speaker's knowledge of its falsity; (5) intent of the speaker that it should be acted upon by the plaintiff; (6) plaintiff's ignorance of its falsity; (7) plaintiff's reliance on the truth of the representation; (8) plaintiff's right to rely upon it; and (9) damages suffered by the plaintiff." Stiley v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996).
Mr. Sloan fails to show that the record on summary judgment contains any evidence to support fraud. His claim appears to stem from alleged statements that William P. Robinson, Mountain View's chief executive officer, made to him. These allegations were made in Mr. Sloan's second amended complaint, which was not considered by the trial court for summary judgment purposes. And Mr. Sloan dismissed Mr. Robinson from the case by stipulation before the summary judgment hearing.
Mr. Sloan did not try to show fraud in any of the documents reviewed by the trial court on summary judgment. And he fails to analyze it on appeal. The cause of action was properly dismissed.
Outrage : "The elements of the tort of outrage are: (1) extreme and outrageous conduct; (2) that the actor intends to cause, or is reckless in causing, emotional distress; and (3) that actually results in severe emotional distress to the plaintiff." King v. Hutson, 97 Wn. App. 590, 597, 987 P.2d 655 (1999). The conduct must be "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (emphasis omitted) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). Summary judgment is proper if the court determines that no reasonable person would regard the conduct in question as extreme and outrageous. Keates v. City of Vancouver, 73 Wn. App. 257, 263-64, 869 P.2d 88 (1994).
Mr. Sloan failed to offer any evidence to establish the elements of outrage. For example, he did not produce evidence, or even argue, that he has suffered emotional distress as a result of Mountain View's actions. The trial court then properly dismissed Mr. Sloan's claim of outrage.
Breach of Contract : Any failure to perform a contractual duty constitutes a breach. Restatement (Second) of Contracts § 235(2) (1981). And an injured party is generally entitled to those damages necessary to put that party in the same economic position it would have occupied had the breach not occurred. Rathke v. Roberts, 33 Wn.2d 858, 865-66, 207 P.2d 716 (1949).
Mr. Sloan argued that Mountain View breached the contract between them because he did not receive a notice of foreclosure at his last known address. Mr. Sloan admitted that he lived at 12403 East 3rd Avenue. And the record shows that Mountain View sent notice to that address. Mr. Sloan, however, said he never actually received the notice because it was intercepted by his brother. Mr. Sloan's relationship with his brother was strained. And he thought Mountain View should have known that he did not receive notice when the return receipt showed that he did not sign it.
The question before the court on summary judgment was whether Mountain View notified Mr. Sloan of the foreclosure sale. The question was not whether Mountain View mailed notice to the most recent address Mr. Sloan gave Mountain View in writing.
The loan contract states, "[n]otice will be mailed to you at the most recent address you have given the credit union in writing." CP at 592. Mountain View's duty was to mail notice to Mr. Sloan. It did not have a duty to ensure that Mr. Sloan was the person who actually received and signed for the notice. The record shows that Mountain View satisfied its duty to mail notices to Mr. Sloan. He told it he lived at the 3rd Avenue address. CP at 481.
Mr. Sloan now asserts that Mountain View breached its contractual duty to send notice because it failed to send notice to the most recent address that he gave Mountain View in writing (i.e., 6007 East 12th Avenue). CP at 364-65. Again, this argument was not before the court during summary judgment proceedings. Mr. Sloan specifically declared that his last known address was the East 3rd Avenue address during the summary judgment proceedings. CP at 481. And this court is restricted to reviewing only the record that was before the trial court. Wagner Dev., 95 Wn. App. at 898 n. 1. Mr. Sloan then failed to raise a genuine issue of material fact to justify a breach of contract claim.
Mr. Sloan failed to produce evidence to show a prima facie case of negligence, fraud, outrage, and breach of contract; therefore, summary judgment was proper here. Seybold, 105 Wn. App. at 676.
Finally, it is clear beyond argument here that Mr. Sloan received the necessary notices. He even tried to cure the default at one point. Motion to Vacate the Judgment
We review a trial court's decision to deny a motion to vacate an order of dismissal for manifest abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). Discretion is abused when a court bases its decision on untenable grounds or untenable reasons. Olver v. Fowler, 161 Wn.2d 655, 663, 168 P.3d 348 (2007).
Mr. Sloan argues that the trial court abused its discretion when it did not grant his motion on the basis of an irregularity under CR 60(b)(1).
A "court may relieve a party . . . from a final judgment, order, or proceeding . . . for . . . [m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order . . . or . . . [a]ny other reason justifying relief from the operation of the judgment." CR 60(b)(1), (11). Mistake of fact is not a statutory ground that supports a vacation of judgment. Handley v. Mortland, 54 Wn.2d 489, 493, 342 P.2d 612 (1959).
The trial court here rejected Mr. Sloan's motion to vacate under CR 60(b)(1) because it determined that Mr. Sloan asserted a fact that was within his specific knowledge (his address in 2002 through 2003) and then claimed that the fact was wrong after the court entered summary judgment. It stated that "[w]hen a competent party, with no mental deficit, asserts facts that are within his knowledge, and the Court relies upon those facts, then a party cannot claim surprise, mistake, inadvertence, or neglect." CP at 354. Where Mr. Sloan lived and received mail in 2002 and 2003 is likely a fact that Mr. Sloan knew or should have known before the court entered summary judgment. He cannot now ask the court to vacate judgment because he gave the court the wrong address by mistake. The trial court's basis for rejecting Mr. Sloan's motion is reasonable. Handley, 54 Wn.2d at 493.
The court also specifically noted that Mr. Sloan did not allege an irregularity in his motion to vacate. CP at 354. "Irregularities which can be considered on a motion to vacate a judgment are those relating to want of adherence to some prescribed rule or mode of proceeding." In re Guardianship of Adamec, 100 Wn.2d 166, 174, 667 P.2d 1085 (1983). The record supports the trial court's statement. CP at 143-47, 267-78. In fact, Mr. Sloan raised CR 60(b)(1) as a ground for relief but argued only that he inadvertently misfiled a motion and brief. CP at 147. He did not cite to a rule or procedure that the parties or court failed to follow. A court acts reasonably when it denies a motion because it is not supported with argument or facts.
The trial court also rejected Mr. Sloan's CR 60(b)(11) motion because there was no extraneous or procedural irregularity. Trial courts reserve CR 60(b)(11) for situations involving extraordinary circumstances not covered by any other section of CR 60(b). In re Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985). Those circumstances must relate to "irregularities extraneous to the action of the court or questions concerning the regularity of the court's proceedings." Id.
Again, the record suggests that Mr. Sloan discovered post-summary judgment that Mountain View did not send notice to 6007 East 12th Avenue, which is where he now claims he lived in 2002 and 2003. Such a discovery does not concern the regularity of court proceedings. And it is not an "extraneous irregularity" but a change in what he believes to be true. Id. (change in party's circumstances (e.g., income) is not an extraneous irregularity that justifies granting CR 60(b)(11) motion); cf., In re Marriage of Flannagan, 42 Wn. App. 214, 221-22, 709 P.2d 1247 (1985) (change in law is an extraneous irregularity that justifies granting CR 60(b)(11) motion). The trial court therefore had reasonable grounds for denying Mr. Sloan's motion to vacate.
We affirm the judgment of the trial court.
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.
WE CONCUR:
Schultheis, C.J.
Brown, J.