Bank of the West v. F & H FARMS, LLC

• Court: Washington Court of Appeals
• Writing for the Court: SWEENEY, J.
• Citation: Bank of the West v. F & H FARMS, LLC, 98 P.3d 532, 123 Wash.App. 502 (Wash. App. 2004)
• Decision Date: 30 September 2004
• Docket Number: No. 22527-5-III.
• Parties: BANK OF THE WEST, Appellant, v. F & H FARMS, LLC; Century 21 Products, Inc., f/k/a C-21 Marketing, Inc.; R & B Properties, LLC; Foglesong Farms, Inc.; William H. Foglesong and Frankie Jo Foglesong; Columbia Regional Economic Development Trust; Randy L. Hirano, Karen A. Hirano, Frances T. Yoshino and Marguerite Yoshino, Defendants, The McGregor Company, Respondent.

98 P.3d 532

123 Wash.App. 502

BANK OF THE WEST, Appellant, v. F & H FARMS, LLC; Century 21 Products, Inc., f/k/a C-21 Marketing, Inc.; R & B Properties, LLC; Foglesong Farms, Inc.; William H. Foglesong and Frankie Jo Foglesong; Columbia Regional Economic Development Trust; Randy L. Hirano, Karen A. Hirano, Frances T. Yoshino and Marguerite Yoshino, Defendants, The McGregor Company, Respondent.

No. 22527-5-III.

Court of Appeals of Washington, Division 3, Panel One.

September 30, 2004.

Aaron J. Bell, Attorney at Law, Canby, OR, for Appellant.

Howard Marshall Neill, Attorney at Law, Pullman, WA, for Respondent.

SWEENEY, J.

We review a trial judge's decision to vacate a summary judgment for abuse of discretion. Here, The McGregor Company did not receive notice of Bank of the West's motion for summary judgment. It did not then appear at the hearing, and the court granted Bank of the West summary judgment. On McGregor's motion and affidavit, the court vacated the judgment. We affirm.

FACTS

Bank of the West sued F & H Farms, LLC, on a debt. Its amended complaint named potential lien holders, including The McGregor Company. McGregor appeared through counsel.

The Bank applied for an order to show cause why it should not be allowed to recover personal property. It served McGregor's attorney by mail. The Bank then moved for summary judgment and again certified that it had mailed a copy of the papers to McGregor. F & H Farms and others moved to continue the hearing. The court continued the hearing. The Bank then filed an amended notice of hearing, which it claimed to have sent to all defendants. McGregor's lawyer did not receive the notice and did not appear. The court granted the Bank's summary judgment motion.

McGregor moved to vacate the judgment based on its lawyer's sworn representation that he did not receive notices of the summary judgment proceedings. The court accepted the representation and vacated the judgment.

DISCUSSION

The standard of review here is abuse of discretion. Pybas v. Paolino, 73 Wash.App. 393, 399, 869 P.2d 427 (1994). Our review then requires us to pass upon the adequacy of the reasons advanced by the trial judge for setting aside this summary judgment. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). Those reasons inhere in the facts of this case. Simply put, the responding lawyer did not get notice of the hearing.

Proof of mailing gives rise to a presumption that the mail was received. Avgerinion v. First Guaranty Bank, 142 Wash. 73, 78, 252 P. 535 (1927). The burden of proof here is on McGregor to show that it did not receive notice of the motion. McGregor showed that. McGregor's lawyer swore under oath that he did not receive notice of the hearing. The weight given to this factual assertion is not for us to decide, it is for the trial court. Colonial Imports v. Carlton N.W., Inc., 83 Wash.App. 229, 239, 921 P.2d 575 (1996). Therefore, the trial court was within its authority to accept the sworn representation of McGregor's attorney that he did not receive notice of the hearing.

Moreover, a lawyer is prohibited from knowingly making a false statement of material fact to the tribunal. RPC 3.3(a)(1). In order to reject McGregor's attorney's assertion, the court would have to reject counsel's assertion as a misrepresentation. The trial judge refused to do that. This was not an abuse of discretion, particularly when the only outcome of accepting the lawyer's representation is to return the matter for argument on the merits. Our system appropriately favors resolution of disputes on the merits. Lane v. Brown & Haley, 81 Wash.App. 102, 106, 912 P.2d 1040 (1996).

There is no prejudice to the Bank. If its loan has priority over the lien of McGregor, then it will prevail. Otherwise it will not prevail, nor should it. This accords with our notion that the object of this exercise is ultimately justice. Griggs v. Averbeck Realty, Inc., 92 Wash.2d 576, 581-82, 599 P.2d 1289 (1979).

McGregor cites a number of cases that address the trial court's discretion to set aside default judgments. The Bank responds that the judgment here...