City of Des Moines v. Personal Property Identified as $81,231 in U.S. Currency

• Decision Date: 02 September 1997
• Docket Number: No. 38367-1-I,38367-1-I
• Citation: 943 P.2d 669,87 Wn.App. 689
• Court: Washington Court of Appeals
• Parties: CITY OF DES MOINES, a municipal corporation, Respondent, v. PERSONAL PROPERTY IDENTIFIED as $81,231 in UNITED STATES CURRENCY, Defendant, Coleen Gray, Appellant.

Page 689

87 Wn.App. 689

943 P.2d 669

CITY OF DES MOINES, a municipal corporation, Respondent, v. PERSONAL PROPERTY IDENTIFIED as $81,231 in UNITED STATES CURRENCY, Defendant Coleen Gray, Appellant.

No. 38367-1-I.

Court of Appeals of Washington Division 1.

Sept. 2, 1997.

Antonio Salazar, Salazar Law Offices, Seattle, for Appellant.

Ha Thu Dao, Prosecuting Attorney, City of Des Moines, Des Moines, for Respondent.

KENNEDY, Acting Chief Judge.

Colleen Gray appeals the grant of summary judgment of forfeiture to the City of Des Moines of $81,231 in cash seized from Gray's home during a police health and safety check, after officers discovered over a pound of cocaine in a bag claimed by Gray. Gray contends that the trial court erred in vacating the default judgment she obtained against the City and in continuing the forfeiture hearing past 90 days from the date she challenged the seizure. Gray further contends that summary judgment was not proper because the search of her apartment and the seizure of the money were unconstitutional. The City contends that the doctrine of collateral estoppel bars Gray from challenging the forfeiture on constitutional grounds because that issue was decided at a suppression hearing during her criminal trial. We hold that the trial court did not err in vacating the default judgment and in continuing the forfeiture hearing. We further hold that Gray is collaterally estopped from challenging the constitutionality of the search by the prior determination, following a suppression hearing in her criminal trial, that the search and seizure were constitutional. Accordingly, we affirm.

FACTS

During a response to a health and safety call at Colleen Gray's condominium, Des Moines police discovered over a pound of cocaine and $81,231 in cash inside a tote bag that Gray asked to take with her to the hospital. Two days after the seizure of the cash and drugs, the city of Des Moines instituted forfeiture proceedings in Des Moines Municipal Court under Ch. 69.50 RCW by serving Gray with a Notice of Seizure and Intended Forfeiture. Gray timely responded and requested that a hearing be held within 90 days of the seizure. ¹ A hearing date was set for September 20, 1995, which was within 90 days of the date of seizure.

On the day of the hearing, Gray filed in King County Superior Court a petition to remove the matter to superior court on grounds that the total value of the seized property exceeded the jurisdictional limits of the municipal court ("removal action"). The City had 20 days to appear in the removal action. Instead of answering Gray's petition or filing a notice of appearance in the removal action, however, the City, on October 18, 1995, filed in superior court a summons and complaint for civil forfeiture of Gray's property corresponding to its original Notice of Seizure and Intended Forfeiture ("forfeiture action"). Trial was set for January 10, 1996, within 90 days of the filing of the complaint. Gray timely appeared in the forfeiture action.

One day after appearing in the forfeiture action, Gray filed a motion for default judgment in the removal action on the ground that the City had not timely filed a notice of appearance or answer to her petition for removal to superior court. She did not provide the City with notice of her motion. A commissioner of the superior court granted the motion and entered default judgment in Gray's favor.

Having obtained a default judgment in the removal action, Gray moved on December 20, 1995, for summary judgment in the forfeiture action, contending that the issue of who was entitled to the money had already been decided in her favor by default judgment and could not be reconsidered in any other proceeding. In response, the City moved for summary judgment on several grounds and moved to vacate the default judgment, arguing that it had never been served with notice of the motion for default judgment as required by CR 55(a)(3). The City, however, incorrectly filed the motion to vacate under the cause number for the forfeiture action instead of the removal action.

All three motions--Gray's for summary judgment, the City's for summary judgment, and the City's to vacate--were heard on January 9, 1996, by King County Superior Court Judge Larry Jordan. Judge Jordan determined that "[t]he [City's] motion to vacate should be heard and decided prior to ruling on the motions for summary judgment." Accordingly, he continued the trial date from January 10, 1996, to April 8, 1996, over Gray's objection, consolidated the removal action and the forfeiture action under the cause number for the removal action, and directed both sides to file their motions under that number.

The City immediately re-filed its motion to vacate under the correct cause number. Judge Jordan heard and granted that motion on January 26, 1996, ordering the default judgment vacated "for lack of notice of the motion for default from [Gray] to the City."

The City then moved for summary judgment. Gray opposed summary judgment on the grounds that the City's motion was not timely brought and that the property had been seized in violation of her constitutional rights. Judge Richard Eadie heard and granted the City's motion on March 18, 1996. Judge Eadie adopted the findings and conclusion of Judge Jo Anne Alumbaugh, at a suppression hearing held in Gray's criminal trial, that the search of Gray's apartment and the seizure of her property did not violate her constitutional rights.

Gray appeals.

DISCUSSION

I

Gray contends that the trial court erred in ruling that the default judgment should be vacated because Gray did not provide the City with notice of her motion for default judgment. The City was entitled to such notice only if it had "appeared" in the action. CR 55(a)(3) ("Any party who has not appeared before the motion for default and supporting affidavit[s] are filed is not entitled to a notice of the motion"). Gray contends that the City never "appeared" because it never filed a notice of appearance or answer in the removal proceeding, and argues that she was, therefore, not required to give the City any notice of her motion.

The decision whether to vacate a default judgment is within the trial court's discretion and will not be disturbed on review absent an abuse of that discretion. Hardesty v. Stenchever, 82 Wash.App. 253, 262, 917 P.2d 577, review denied, 130 Wash.2d 1005, 925 P.2d 988 (1996).

Default judgments are disfavored in the law; accordingly, the concept of "appearance" is construed broadly for purposes of CR 55. Skilcraft Fiberglass, Inc. v. Boeing Co., 72 Wash.App. 40, 45, 863 P.2d 573 (1993) (citing Gage v. Boeing Co., 55 Wash.App. 157, 161, 776 P.2d 991 (1989)). A party "appears" in an action when it "answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of [its] appearance." RCW 4.28.210. The methods set forth in RCW 4.28.210 for "appearing" in an action are not exclusive, however, and informal acts may constitute an "appearance." Skilcraft, 72 Wash.App. at 45, 863 P.2d 573. "Whether a party has "appeared" ... is generally a question of intention, as evidenced by acts or conduct, such as the indication of a purpose to defend or a request for affirmative action from the court, constituting a submission to the court's jurisdiction." Gage, 55 Wash.App. at 161, 776 P.2d 991 (quoting Annot., "What Amounts to "Appearance" Under Statute or Rule Requiring Notice, to Party Who Has "Appeared," of Intention To Take Default Judgment," 73 A.L.R.3d 1250, 1254 (1976) (internal quotation marks omitted)). CR 55 was " 'intended to protect those parties who, although delaying in a formal sense by failing to file pleadings within the twenty-day period, have otherwise indicated to the moving party a clear purpose to defend the suit.' " Gage, 55 Wash.App. at 161, 776 P.2d 991 (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C.Cir.1970)). Default judgments are normally viewed as proper only when the adversary process has been halted because of an essentially unresponsive party. Gage, 55 Wash.App. at 160-61, 776 P.2d 991 (citing Livermore, 432 F.2d at 691).

In Skilcraft, this court found an appearance on the part of the defendant where the defendant's primary contractor but not the defendant, filed a notice of appearance in the lawsuit. Skilcraft, 72 Wash.App. at 46, 863 P.2d 573. In Gage, an appearance was found despite the defendant's failure to formally appear in two appeals to the superior court, where the defendant had contested all of the plaintiff's claims at the administrative level. Gage, 55 Wash.App. at 163-64, 776 P.2d 991. Washington courts have also found appearances where the defaulting party: resisted a motion to convert a temporary restraining order into an injunction pending trial, Dlouhy v. Dlouhy, 55 Wash.2d 718, 349 P.2d 1073 (1960); served a demand for security for costs on the opposing party, Warnock v. Seattle Times Co., 48 Wash.2d 450, 452, 294 P.2d 646 (1956); served a notice of appearance on the opposing party but not on the court, Tiffin v. Hendricks, 44 Wash.2d 837, 271 P.2d 683 (1954); and served interrogatories on the opposing party. State ex rel. Trickel v. Superior Court, 52 Wash. 13, 100 P. 155 (1909).

This is not a case where the City completely failed to respond to an action filed by Gray. Here, the City, not Gray, began the forfeiture action in the first place by filing its notice of intent to forfeit, giving Gray timely notice of the intended forfeiture, and arranging for a hearing within 90 days as was requested by Gray. These actions put Gray on notice of the City's intent to pursue forfeiture. In addition, when Gray filed her petition for removal to superior court, the City filed its summons and complaint in the forfeiture action and timely served Gray with notice of each within the 20-day time limit for responding to the petition in the removal action. The...