Opinion
No. 56996-1-I.
November 13, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-2-05742-4, Gerald L. Knight, J., entered September 16, 2005.
Counsel for Appellant(s), Dan Gahn (Appearing Pro Se), Gold Bar, WA.
Counsel for Respondent(s), Stephan E. Todd, Attorney at Law, Bothell, WA.
Affirmed and remanded by unpublished per curiam opinion.
Daniel Gahn appeals the trial court's decision granting John and Sharla Spoelstras' motion to vacate a summary judgment. The trial court properly exercised its discretion by granting the motion to vacate the summary judgment because Gahn failed to provide notice to the Spoelstras of the motion for summary judgment. We affirm.
John and Sharla Spoelstra sued Daniel and Jane Doe Gahn in Snohomish County Superior Court. The Spoelstras made several claims against the Gahns, including fraud, extortion, unjust enrichment, and negligent misrepresentation. They alleged that Dan Gahn, who is not a lawyer, required them to give him a quit claim deed to more than 57 acres of property in exchange for his help in resolving some property disputes.
Attorney Jane Koler represented the Spoelstras and filed the complaint against the Gahns. Another attorney, Renee Lee, was assisting Koler, but the two attorneys did not work in the same office or law firm.
On May 6, 2005, Gahn filed a motion for summary judgment. He mailed a copy of the motion to the address that attorney Lee provided when she filed her notice of appearance. The address was for a box at a UPS store. Gahn apparently did not attempt to send a copy to the Spoelstras' other lawyer.
After mailing the copy of the summary judgment motion to Lee, Gahn received a return receipt showing that the mail was delivered on May 7, 2005, and that someone named Reva Cloy signed for the envelope. Before the summary judgment motion was heard, however, the envelope was returned to Gahn unopened with a notation that the box where it was sent had been closed.
Gahn appeared in court on June 15, 2005 for the hearing on his summary judgment motion, but neither the Spoelstras, nor either of their attorneys, appeared. Gahn failed to disclose to the court that the copy he mailed to attorney Lee had been returned unopened with a notation that the box was closed. Because the court file contained a declaration of mailing and a receipt showing that the mail was received, the judge granted Gahn's motion for summary judgment.
The effect of the summary judgment was to validate the quit claim deed from the Spoelstras to Gahn. Gahn recorded the quit claim deed and asked the Snohomish County Assessor's office to continue the property's open space status. That request led to an appraiser visiting the property, which alerted the Spoelstras to the summary judgment.
On August 29, 2005, the Spoelstras moved to vacate the judgment, which the court granted, finding:
1. The order granting summary judgment entered on June 15, 2005 is void in its entirety for want of jurisdiction. There was irregularity in the proceedings due to insufficient notice.
2. The plaintiffs and plaintiffs [sic] counsel did not have sufficient notice of the defendant's motion for summary judgment.
This appeal followed.
CR 60(b)
Gahn argues that the trial court abused its discretion when it granted the Spoelstras' motion to vacate the judgment. He argues that he properly sent notice of the motion to the Spoelstras' attorney and, therefore, there was no irregularity that warranted vacating the judgment. This argument is wholly unpersuasive.
Civil Rule 60(b)(1) provides the authority for vacating a judgment due to an irregularity in the proceedings:
. . .
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. 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:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.
An irregularity pursuant to CR 60(b)(1) occurs when there is a failure to follow a prescribed rule or mode of proceeding. Mosbrucker v. Greenfield Implement, Inc., 54 Wn. App. 647, 652, 774 P.2d 1267 (1989). "[I]t consists either in the omitting to do something that is necessary for the due and orderly conducting of a suit, or in doing it in an unreasonable time or improper manner." Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978).
This court reviews a trial court's decision whether to vacate a judgment under CR 60 for an abuse of discretion. Shaw v. City of Des Moines, 109 Wn. App. 896, 900, 37 P.3d 1255 (2002). We will not overturn the decision unless the trial court exercised its discretion on untenable grounds or for untenable reasons. Shaw, 109 Wn. App. at 901.
The trial court granted the motion to vacate the judgment because neither the Spoelstras nor their attorneys had notice of Gahn's motion for summary judgment before it was heard. A failure to provide notice when it is required is a procedural error that justifies vacation. See Gage v. Boeing Co., 55 Wn. App. 157, 164, 776 P.2d 991 (1989) (addressing lack of notice of a motion for default). Lack of notice is a tenable reason for vacating a summary judgment that essentially was entered ex parte. Bank of the West v. FH Farms, 123 Wn. App. 502, 506, 98 P.3d 532 (2004).
Gahn contends that the court abused its discretion because he complied with CR 5(b)(2)(A), the rule describing how service by mail is effected. Under that rule, service by mail is complete on the third day following the day that the papers were "deposited in the post office addressed to the person on whom they are being served, with the postage prepaid." CR 5(b)(2)(A). This misses the point.
Civil Rule 5(a) required that the Spoelstras be served with the motion for summary judgment. Proof that a document was mailed merely gives rise to a presumption that the mail was received. Bank of the West, 123 Wn. App. at 504. Gahn conceded during the hearing on the motion to vacate that the Spoelstras' attorney never saw the document he mailed her. The owner of the UPS store explained in a declaration that his employee had signed for the certified mail in error. The attorney had closed her box at the store, and the agreement allowing the store to act as the attorney's agent and accept mail on her behalf expired before Gahn mailed the package. The store returned the mail unopened to Gahn with a notation that the box to which the mail was sent had been closed. Gahn knew the Spoelstras had not received notice of the summary judgment hearing but failed to disclose that to the court. The trial court properly exercised its discretion when it granted the motion to vacate based upon lack of notice.
We affirm the order of the trial court and remand for further proceedings.
BAKER and DWYER, JJ., concur. Page 1044