Caley v. Koeberle, No. 32524-1-II (WA 1/31/2006)

• Court: Washington Supreme Court
• Writing for the Court: Houghton
• Decision Date: 31 January 2006
• Docket Number: No. 32524-1-II,32524-1-II
• Citation: Caley v. Koeberle, No. 32524-1-II (WA 1/31/2006), No. 32524-1-II (Wash. Jan 31, 2006)
• Parties: JOHN CALEY, and MARLENE CALEY, husband and wife, and Rock Caley, Respondents, v. KRIS KOEBERLE, and JOHN DOE KOEBERLE, Appellants.

Page 1

Unpublished Opinion

JOHN CALEY, and MARLENE CALEY, husband and wife, and Rock Caley, Respondents, v. KRIS KOEBERLE, and JOHN DOE KOEBERLE, Appellants.

No. 32524-1-II

Court of Appeals of Washington, Division Two.

Filed: January 31, 2006.

Appeal from Superior Court of Kitsap County. Docket No: 01-2-00833-3. Judgment or order under review. Date filed: 10/29/2004. Judge signing: Hon. Leonard W Costello.

Counsel for Appellant(s), Kris Koeberle (Appearing Pro Se), 6101 Peterson Rd. SE, Port Orchard, WA 98367.

John Doe Koeberle (Appearing Pro Se), 6101 Peterson Rd SE, Port Orchard, WA 98367.

Counsel for Respondent(s), Rock E Caley, Attorney at Law, 8852 SE View Park Rd, Port Orchard, WA 98367-8667

HOUGHTON, J.

Kris Koeberle and her husband appeal the denial of their motion to vacate a default judgment entered against them, arguing lack of personal jurisdiction. They also appeal the trial court's damages and attorney fee award. We affirm.

FACTS

The Koeberles and John and Marlene Caley are rural Kitsap County neighbors. The Koeberles own two adjoining parcels of land. They have a house and horse ranch on the first parcel, also known as the `house parcel.' Clerk's Papers (CP) at 84. The other, or `barn parcel,' has a barn and a 15 foot wide road along its eastern border.

The Caleys claimed an easement right to transit along the east border of the barn parcel. They also claimed the right to transit along the west border of the house parcel through 1914 deed language that stated that the tract was to be `open for perpetual use as a public thoroughfare and road.' CP at 93.

In 2001, after the Caleys unsuccessfully sought to develop their property to the south of the Koeberles', they sued, claiming an interest in a strip of land that provided northerly access for them. The Caleys filed their complaint on March 26, 2001, alleging a prescriptive easement, easement by necessity, and a right to quiet title to the strip of land. The Caleys also requested attorney fees and costs and damages. Their request for damages related to the Koeberles' erection of a fence and no trespassing sign that blocked access to the Caleys' property for more than two years.

According to the Caleys, they served a copy of the summons and complaint on the Koeberles. In later pleadings, the Koeberles denied being personally served. The Caleys did not file a proof of service and claimed that it was lost.

Nevertheless, counsel for the Koeberles entered an appearance on April 30, 2001, reserving all jurisdictional defenses. In their later answer filed on August 9, 2001, the Koeberles admitted to jurisdiction. On February 1, 2002, the court granted the Koeberles' counsel's motion to withdraw. On June 13, 2003, the court granted the Caleys' motion to add an additional party, Michael Schuyler.

On July 15, 2003, the court granted the Caleys' motion to serve pleadings by first class mail. On August 13, 2003, the Caleys' counsel filed (1) a motion for summary for summary judgment with attachments, (2) a note for hearing argument on the motion on September 12, 2003, and (3) counsel's declaration of mailing a note for motion and a motion.¹

On September 12, 2003, the court granted the Caleys' summary judgment motion. On September 12, 2003, the Caleys' counsel mailed the Koeberles (1) a cover letter;² (2) a note for hearing to present findings, conclusions, and judgment on September 19, 2003; (3) a motion for presentation of findings, conclusions and judgment for plaintiffs; and (4) a declaration of mailing.³

Apparently no one appeared on the Koeberles' behalf at the September 19, 2003 presentation hearing and the trial court entered its findings and conclusions. The trial court entered two judgments, one identifying the Caleys as judgment creditor, and an identical one identifying Schulyer as a judgment creditor.

The trial court awarded the Caleys unfettered access to the roadway for ingress, egress, and utilities; $2,000 in damages for intentional interference with road access; $3,000 for gate removal and road repair; and ordered the Koeberles to pay the Caleys' attorney fees and costs.

The Koeberles' next counsel withdrew on September 29, 2003. Almost a year later, on August 13, 2004, new counsel entered a limited appearance on behalf of the Koeberles and on August 20, the Koeberles moved to vacate the judgments. They argued that they were never properly served with either the original complaint or the complaint adding Schuyler as a party. They also argued that they were not properly notified of the summary judgment hearing. Finally, they argued that the court erred in awarding damages because the Caleys' complaint did not allege a claim for them and because damages could not be awarded in a quiet title action.

In a letter ruling filed on October 1, 2004, the court concluded that the Koeberles' answer to the complaint waived objection to the court's jurisdiction and that they received adequate notice of the summary judgment proceeding. It also found that the complaint alleged a damages request and that an award was justified. The court denied the motion to vacate.⁴

The Koeberles appeal.

ANALYSIS

Jurisdiction

The Koeberles first contend that the trial court erred in concluding that they waived any objection to jurisdiction. They assert that no service of process of the summons and complaint was ever filed and they deny that they were served.

Under the waiver doctrine, a party may waive affirmative defenses such as insufficient service of process. Lybbert v. Grant County, 141 Wn.2d 29, 38-39, 1 P.3d 1124 (2000). In answering the complaint, Koeberles' counsel admitted to jurisdiction, thus waiving later objection. The Koeberles' lack of jurisdiction argument fails.

Notice of Summary Judgment Proceedings

The Koeberles further contend that the Caleys failed to provide notice of the summary judgment hearing and of the summary judgment presentation. They assert that the Caleys' proof of service by mail was inadequate under the Civil Rules.

We review a trial court's decision declining to vacate an order on summary judgment for abuse of discretion. Bank of the West v. F&H Farms, LLC, 123 Wn. App. 502, 504, 98 P.3d 532 (2004). A trial court abuses its discretion if it bases its decision on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

Valid service by mail under CR 5(b)(2)(B) requires an acknowledgement of service, an affidavit of the person who mailed the papers, or a certificate of the attorney. In ruling on the Koeberles' motion to vacate, the trial court found that the mailing to the Koeberles was `adequate notice pursuant to Court Rules.' CP at 225. We agree. Although counsel's first certificate of mailing imprecisely identified the summary judgment documents, the record shows that counsel mailed almost one pound of papers and that he later gave notice of the presentation hearing. Given these facts, we cannot conclude that the trial court abused its broad...