Gustafson v. Gustafson, s. 21964-2-

• Decision Date: 08 May 1989
• Docket Number: Nos. 21964-2-,N,s. 21964-2-
• Citation: 772 P.2d 1031,54 Wn.App. 66
• Parties: Virginia GUSTAFSON, Plaintiff, v. Ragnar GUSTAFSON, Defendant, Appeal of First Western Bank, et al., Appelants, John Buchan, et al., Respondents. v. Colin W. RADFORD, Merlynda Radford, Foster Radford, and Diana Radford, Appellants. o. 21996-1-I.
• Court: Washington Court of Appeals

Page 66

54 Wn.App. 66

772 P.2d 1031

Virginia GUSTAFSON, Plaintiff, v. Ragnar GUSTAFSON, Defendant,

Appeal of First Western Bank, et al., Appelants,

John Buchan, et al., Respondents. v. Colin W. RADFORD, Merlynda Radford, Foster Radford, and Diana Radford, Appellants.

Nos. 21964-2-I, No. 21996-1-I.

Court of Appeals of Washington Division 1.

May 8, 1989.

Jay H. Zulauf, Janet P. McEachern, Mundt, MacGregor, Hoppe, Falconer, and Hall, Seattle, for First Western.

Rodney T. Harmon, Geraghty & VanDerHoef, Seattle, for John and Gloria Buchan.

Arthur H. McKean, Aiken, St. Louis & Siljeg, Seattle, for Colin, Merlynda, Foster and Diana Radford.

FORREST, Judge.

First Western Bank and Colin, Merlynda, Foster and Diana Radford (Radfords) appeal from the vacation of an order of dismissal of claims asserted against them by John, Gloria, William and Karen Buchan (Buchans). We affirm the vacation.

In 1983, Virginia Gustafson brought an action to quiet title and for damages against Ragner Gustafson (her former husband), R & H Associates, Inc. ("R & H"), First Western Bank ("First Western"), and the Buchans. See Gustafson v. Gustafson, 47 Wash.App. 272, 734 P.2d 949 (1987), for the full factual background of this appeal. The property which was the subject of that action was first acquired by First Western from R & H by deed in lieu of foreclosure, then was acquired by the Radfords, and finally was acquired by the Buchans.

The Buchans asserted a cross-claim against First Western for indemnification for the costs of defending the quiet title action, and served a third-party complaint on the Radfords. The Buchans moved for summary judgment against Gustafson, asserting that she did not have standing to sue. On March 29, 1985, an order of summary judgment was entered which granted judgment in favor of the Buchans against Gustafson. The order also contained the following provision:

4. The cross-claim of the Buchans against First Western Bank and the third-party complaint of the Buchans against [the Radfords] were premised solely on any liability the Buchans might have had to plaintiff and accordingly, are hereby dismissed with prejudice by stipulation of the parties.

Gustafson appealed from the summary judgment, and on March 25, 1987, this court reversed the summary judgment and quieted title in Gustafson. Gustafson v. Gustafson, supra. Motions for reconsideration and review were denied. 109 Wn.2d 1024 (1988).

On February 3, 1988, the Buchans moved to vacate that portion of the summary judgment order in which their claims against First Western and the Radfords were dismissed with prejudice (hereafter referred to as the "stipulated dismissal"), relying on CR 60(b)(6) and CR 60(b)(11). The court granted the motion to vacate under both CR 60(b)(6) and CR 60(b)(11), and First Western appeals. The Radfords also appeal, asserting the same position as First Western, and the appeals were consolidated. ¹

CR 60(b)

CR 60(b) provides as follows:

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;

. . . . .

(6) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

. . . . .

(11) Any other reason justifying relief from the operation of the judgment.

The motion shall be made within a reasonable time and for reasons (1), (2) or (3) not more than 1 year after the judgment, order, or proceeding was entered or taken....

Standard of Review

First Western argues that a stipulated judgment should not be reviewed or vacated in the absence of fraud, mistake, or lack of jurisdiction. Haller v. Wallis, 89 Wash.2d 539, 543-44, 573 P.2d 1302 (1978) (affirming denial of motion under CR 60(b)(1) to vacate an "Amended Order Authorizing Settlement"); Washington Asphalt Co. v. Harold Kaeser Co., 51 Wash.2d 89, 91, 316 P.2d 126 (1957) (refusal to review a stipulated judgment on appeal). We disagree. The proper standard for review is whether the court abused its discretion in vacating the stipulated judgment under CR 60(b)(6) or under CR 60(b)(11). State v. Santos, 104 Wash.2d 142, 145, 702 P.2d 1179 (1985); In re Marriage of Flannagan, 42 Wash.App 214, 222-23, 709 P.2d 1247 (1985), review denied, 105 Wash.2d 1005 (1986). The granting of a motion to vacate a judgment is directed to the discretion of the trial court, and will not be reversed in the absence of a manifest abuse of that discretion. Fahlen v. Mounsey, 46 Wash.App. 45, 47, 728 P.2d 1097 (1986), review denied, 107 Wash.2d 1031 (1987); Martin v. Pickering, 85 Wash.2d 241, 245, 533 P.2d 380 (1975); Werner v. Carbo, 731 F.2d 204, 206 (4th Cir.1984).

CR 60(b)(1)

First Western argues that the only possible ground for vacating the stipulated dismissal was "mistake" under CR 60(b)(1), and therefore the Buchans' motion to vacate was untimely because motions under CR 60(b)(1) must be brought within 1 year of the entry of the judgment. It is not clear whether the Buchans' entry into the stipulated dismissal would qualify as a "mistake" for purposes of CR 60(b)(1). See 4 Orland, Washington Practice, § 5713 (3d ed. 1983) (citing cases demonstrating lack of consistency as to whether CR 60(b)(1) applies to "mistakes of fact" or "mistakes of law" or both); Burlingame v. Consolidated Mines & Smelting Co., 106 Wash.2d 328, 336, 722 P.2d 67 (1986) (errors of law not correctable through CR 60(b)); and Nemaizer v. Baker, 793 F.2d 58, 62 (2nd Cir.1986) ("Mere dissatisfaction in hindsight with choices deliberately made by counsel [in breadth of stipulated dismissal] is not grounds for finding the mistake, inadvertence, surprise or excusable neglect necessary to justify Rule 60(b)(1) relief.").

However, even if it was clear that the stipulated dismissal was a "mistake", the Buchans would not be limited to CR 60(b)(1) as a grounds for vacation. No authority has been cited to or discovered by us making the grounds for vacation listed in CR 60(b) mutually exclusive, except for CR 60(b)(11), which is discussed infra. The grounds for vacation listed in CR 60(b) are a combination of those listed in Federal Rule of Civil Procedure 60(b) and those contained in a number of pre-existing statutes. CR 60(b)(1), (6) and (11) were all taken from the federal rule. FRCP 60(b) was amended in 1948 to add the list of grounds for vacation. The purpose for listing the grounds was to "cover the field" of vacation and to eliminate writs of coram nobis, coram vobis, audita querela, and bills of review. Advisory Committee Report, 5 F.R.D. 433, 477-78 (1946). No intent was expressed that the moving party would have to elect only one of the listed grounds for vacation. "[C]ourts should and do give a liberal construction to 60(b)." 7 Moore's Federal Practice p 60.18 (2d ed. 1987). As the Fourth Circuit noted in Werner v. Carbo, 731 F.2d at 207:

We have explained, however, that these grounds for relief often overlap, and it is difficult if not inappropriate in many cases to specify or restrict the claim for relief to a particular itemized ground. Compton v. Alton Steamship Co., [608 F.2d 96, 102 (4th Cir.1979) ]. This overlapping and the broad phrasing of the rule free courts to do justice in cases in which the circumstances generally measure up to one or more itemized grounds. It is also consistent with the background of the rule and the rule itself which abolished writs of coram nobis, coram vobis, audita querela, bills of review, and bills in the nature of a bill of review, so that relief from a judgment, generally, should now be obtained under the rule rather than under the abolished procedures mentioned just above.

The court did not err in considering the Buchans' motion under CR 60(b)(6), even if the stipulated dismissal could have been considered a "mistake."

CR 60(b)(6)

First Western argues that CR 60(b)(6) does not apply because the stipulated dismissal was not a judgment where "a prior judgment upon which it is based has been reversed or otherwise vacated." It contends that the stipulated dismissal of the indemnification claims was not "based" upon the summary judgment in the underlying case, but rather was a tactical decision by the Buchans. It argues that the Buchans should be bound by their tactical decision made with the assistance of counsel, and that if they were concerned about a possible reversal of the summary judgment they should have provided for that contingency in the stipulated dismissal.

The Buchans respond that the language of the stipulated dismissal demonstrates that it was "based" upon the summary judgment, as it provided that the claims dismissed were "premised solely on any liability the Buchans might have had to plaintiff." They contend that where the reversal of a prior judgment eliminates the basis for a secondary judgment, the secondary judgment, even when entered simultaneously, should be vacated under CR 60(b)(6). Fahlen v. Mounsey, 46 Wash.App. at 47, 728 P.2d 1097; Safe Flight Instrument Corp. v. United Control Corp., 576 F.2d 1340 (9th Cir.1978); Werner v. Carbo, supra.

The Buchans' interpretation of CR 60(b)(6) is supported by Werner v. Carbo. Werner obtained a medical malpractice judgment against Upjohn Co., Dr. Carbo, and Dr. Carbo's professional corporation. Upjohn and Dr. Carbo appealed, but the corporation did not. The judgment was vacated on appeal, and thereafter the corporation moved for vacation of the judgment against it, under FRCP 60(b)(5). The motion was denied by the district judge, but the Court of Appeals held that the denial of the motion was an abuse of discretion. The court held that the judgment against the corporation "rested" upon the judgment against Dr. Carbo, so...