Allison v. Boondock's, Sundecker's & Greenthumb's, Inc.

• Decision Date: 19 December 1983
• Docket Number: No. 10893-0-I,10893-0-I
• Citation: 673 P.2d 634,36 Wn.App. 280
• Court: Washington Court of Appeals
• Parties: Rhonda Colleen ALLISON, Respondent, v. BOONDOCK'S, SUNDECKER'S & GREENTHUMB'S, INC., a Washington corporation, d/b/a Lion O'Reilly's and B.J. MonkeyShines', Appellant.

Page 280

36 Wn.App. 280

673 P.2d 634

Rhonda Colleen ALLISON, Respondent, v. BOONDOCK'S, SUNDECKER'S & GREENTHUMB'S, INC., a Washington corporation, d/b/a Lion O'Reilly's and B.J MonkeyShines', Appellant.

No. 10893-0-I.

Court of Appeals of Washington Division 1.

Dec. 19, 1983.

Review Granted Feb. 17, 1984.

Diamond & Sylvester, Alan D. Judy, Seattle, for appellant.

Kleist & Davis, Inc., P.S., Donald K. Davis, Seattle, for respondent.

RINGOLD, Judge.

Boondock's, Sundecker's & Greenthumb's, Inc. (Boondock's) appeals an order denying its motion to vacate a default judgment. Boondock's contends the trial court erred in denying the motion because the judgment was void and was obtained in a deceptive and unfair manner. We find no error and affirm.

Boondock's is a Washington corporation in the restaurant business under its corporate name and as Lion O'Reilly's & B.J. Monkeyshine's (O'Reilly's). On December 21, 1978, the plaintiff, Rhonda Allison, was a customer at O'Reilly's. She attempted to open a viewing window in the booth where she was seated. The window fell, traumatically amputating the tip of her right index finger. Allison incurred medical expenses of $517.10, which Boondock's insurance carrier paid on June 20, 1979.

One year later, Allison filed a personal injury complaint against Boondock's. The complaint alleged that as a result of Boondock's negligence, Allison suffered "permanent ... personal injuries" and lost wages. The complaint prayed for "general damages in an amount to be proven at the time of trial and for such other sums as the evidence may show to be fair, just and adequate." The complaint was served on Boondock's vice president at corporate headquarters in Seattle. Boondock's did not answer or appear, and on August 5, 1980, the court entered an order of default against it. Following a hearing on the issue of damages, the court found that Allison suffered $3740 in lost wages, and that she was left with a permanent disability and suffered $30,000 in general damages. The court entered findings, conclusions and judgment for $33,740 on August 21, 1980. Boondock's did not receive notice of the damages hearing, the presentation of findings and conclusions, or the entry of the judgment. Allison initiated proceedings to collect the judgment on October 6, 1981. Upon receiving notice of these proceedings, Boondock's moved to vacate the default judgment pursuant to CR 60(b)(5) and (11). The motion was denied, and Boondock's appeals.

CR 60(b)(5)

Boondock's concedes that it was properly served with the complaint in this action. It contends that the judgment was void for lack of due process because it awarded damages for injuries not specified in the complaint and in an amount exceeding the complaint's prayer.

A party has a due process right to "assume that the relief granted on default will not exceed or substantially differ from that described in the complaint and may safely allow a default to be taken in reliance upon this assumption." Columbia Valley Credit Exchange, Inc. v. Lampson, 12 Wash.App. 952, 954, 533 P.2d 152 (1975). A judgment rendered in excess of the relief requested in the complaint without giving the defendant notice and an opportunity to be heard is void to the extent it differs from the complaint. State ex rel. Adams v. Superior Ct., 36 Wash.2d 868, 872, 220 P.2d 1081 (1950). The judgment may be challenged by a CR 60(b)(5) ¹ motion brought within a reasonable time after the entry of judgment. Columbia Valley Credit at 956, 533 P.2d 152.

Allison's complaint alleged she had suffered a permanent injury and lost wages, and prayed for general damages in an amount to be proven at trial. This comports with the requirements in RCW 4.28.360 ² for pleading personal injury actions. CR 55(b)(2) ³ specifies the procedure to be followed in entering a default judgment where, as here, the amount of damages is uncertain. The rule allows for a hearing on the damages issue and requires the court to make written findings of fact and conclusions of law.

Relying on CR 52(c) ⁴, Boondock's contends that the defaulting party has a due process right to be notified of the hearing and findings referred to in CR 55(b)(2). A party who fails to timely appear ⁵ in an action is not entitled to notice of subsequent proceedings, including the presentation of findings and conclusions and the entry of the default judgment. RCW 4.28.210; See Pedersen v. Klinkert, 56 Wash.2d 313, 352 P.2d 1025 (1960). CR 52(c) requires notice of the presentation of findings to defeated parties, not to parties adjudged to be in default.

Allison's complaint notified Boondock's she was seeking an unspecified amount of money damages based on the allegations of permanent injury and lost wages. The court awarded damages for permanent disability and lost wages. The relief granted did not exceed or differ from that requested in the complaint. Because Boondock's was properly served but did not answer or otherwise appear, the court properly entered an order of default against it. Being in default, Boondock's was not entitled to notice of any subsequent proceedings. Pedersen. The judgment was not void for lack of due process. The court properly denied the motion to vacate on that ground. ⁶

Boondock's next contends that the judgment is void because the findings of fact do not set forth the ultimate facts concerning the material issues or the elements for which damages were awarded. Boondock's did not challenge the sufficiency of the findings and conclusions in the trial court. A ground for vacating a judgment under CR 60(b) will not be considered for the first time on appeal. In re Marriage of Wherley, 34 Wash.App. 344, 348, 661 P.2d 155 (1983).

CR 60(b)(11)

Finally, Boondock's contends that the trial court abused its discretion in denying the motion to vacate because the judgment was obtained in an unfair and deceptive manner. Boondock's alleges that Allison and her counsel were deceptive and unfair in (1) failing to notify Boondock's or its insurance carrier that they were contemplating legal action, (2) waiting 1 1/2 years after the incident to file suit, and (3) waiting an additional year before attempting to execute the judgment. Boondock's argues that such conduct warrants relief from the judgment under CR 60(b)(11).

CR 60(b)(11) authorizes a trial court to vacate a judgment for "[a]ny other reason justifying relief from the operation of the judgment." Whether a judgment obtained in an allegedly unfair manner falls within the ambit of this rule has not been addressed by the Washington courts. Boondock's relies upon Byron v. Bleakley Transp. Co., 43 F.R.D. 413 (S.D.N.Y.1967), which applied the federal counterpart to this rule, FRCP 60(b)(6), to an allegedly similar situation.

In Byron, the plaintiff's decedent died from natural causes while in the defendant corporation's employ. The plaintiff did not file suit until 1 day prior to the expiration of the statute of limitations. Although aware of the defendant's mailing address, the plaintiff made service on the Secretary of State of New York, who was authorized by statute to accept service of process for resident corporations. Because of a change in address, the defendant did not receive the complaint mailed to it by the Secretary. After the default judgment was entered, the plaintiff waited 18 months to execute the judgment. The court found that the defendant had not negligently or willfully disobeyed service of process and concluded that, under the circumstances, the Rules should be liberally construed to achieve justice. The court granted the...