Leen v. Demopolis
| Decision Date | 22 July 1991 |
| Docket Number | No. 25399-9-I,25399-9-I |
| Citation | 815 P.2d 269,62 Wn.App. 473 |
| Court | Washington Court of Appeals |
| Parties | David A. LEEN, d/b/a Leen & Moore, Attorneys at Law, Respondent, v. Chris DEMOPOLIS, Appellant. |
Steven W. Hale, Barrett, Hale, Gilman, Seattle, respondent.
Ronald Meltzer, Sinsheimer and Meltzer, Seattle, for appellant.
Chris Demopolis, pro se.
Chris Demopolis appeals the order denying his motion for an order vacating entry of a default judgment and confirming the order of default. Demopolis argues that the trial court erroneously (1) made factual determinations based upon conflicting affidavits; (2) found that Demopolis's actions prior to the entry of the default order did not constitute an appearance before the court; (3) entered an award that exceeded the relief requested in the complaint; and (4) modified its decision without permission from the appellate court. We affirm.
On October 31, 1988, attorney David Leen filed a summons and complaint against Chris Demopolis in King County Superior Court. Leen claimed that Demopolis owed him $11,500 pursuant to a written contract for professional services rendered. Leen asked for a judgment for $11,500, plus reasonable attorney fees of $500 if the matter was uncontested or a greater amount if the matter was contested.
Leen advised Demopolis that he was pursuing a legal action to collect his fees. Demopolis acknowledged over the telephone that he had received the summons and complaint and agreed to sign an acceptance of service.
On January 22, 1989, because Demopolis had not yet returned the signed form, Leen went to Demopolis's residence at 7013 Linden Avenue North in Seattle. Demopolis was not there, but a former client of Leen's, Marvin Johnson, was in the yard. Johnson indicated that he saw Demopolis daily and agreed to deliver the summons and complaint for Leen. 1 The following day, Johnson called Leen's office and indicated that he personally handed the summons and complaint to Demopolis. On January 24, 1989, Johnson signed an affidavit of service.
When more than 20 days passed without any response from Demopolis, Leen moved for an order of default. On February 14, 1989, the trial court entered findings and conclusions and an order of default. A judgment was entered in favor of Leen for $14,552.82. On February 17, 1989, Leen mailed Demopolis a copy of the default judgment.
On November 17, 1989, Leen applied for a writ of execution to seize Demopolis's personal property. A sheriff's sale was scheduled for January 2, 1990. On November 22, 1989, Demopolis called Leen and demanded that the default judgment be vacated.
On December 11, 1989, Demopolis filed a motion to vacate the default judgment. The motion was based upon declarations of Demopolis and Daniel Peterson. Demopolis claimed that he had not properly been served with the summons and complaint prior to the entry of the order of default. He claimed that he found a document entitled "Complaint for Monies Due" in the mailbox at one of his business offices on February 6, 1989. He said that on February 10, 1989, he filed with the court a document entitled "Memo to Court on Failure of Process". Demopolis also claimed to have delivered a copy of the memorandum to David Leen's secretary on February 10, 1989. He said that he first learned about the order of default late in the summer of 1989 when he discovered that it was an encumbrance listed on a real estate title report. Daniel Peterson's declaration also stated that Demopolis had delivered a copy of the "Memo to Court on Failure of Process" to Leen's secretary.
On December 19, 1989, the trial court entered an order confirming the default judgment entered on February 14, 1989. Demopolis filed a notice of appeal from the order confirming the default judgment on December 29, 1989. On January 3, 1990, Leen filed a motion for a supplemental award of attorney fees and costs. Leen based his request upon his contract with Demopolis and upon CR 11. On January 11, 1990, the trial court entered findings and conclusions and granted Leen a supplemental judgment of $6,398.83 based upon its conclusion that Demopolis had violated CR 11. On February 21, 1990, Demopolis was granted a request to amend his notice of appeal to include an appeal from the supplemental judgment.
We first consider whether the trial court erred when it denied Demopolis's motion to vacate the default judgment when there were conflicting affidavits regarding service of process.
CR 55(c)(1) allows default judgments to be set aside in accordance with CR 60(b). Under CR 60(b),
[o]n 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;
. . . . .
(5) The judgment is void;
. . . . .
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.
CR 60(b)(1), (5). 2
The procedure for vacating a judgment is as follows:
(1) Motion. Application shall be made by motion filed in the cause stating the grounds upon which relief is asked, and supported by the affidavit of the applicant or his attorney setting forth a concise statement of the facts or errors upon which the motion is based, and if the moving party be a defendant, the facts constituting a defense to the action or proceeding.
CR 60(e)(1). If a judgment is void for want of jurisdiction, no showing of a meritorious defense is required to vacate the judgment. Mid-City Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wash.App. 480, 486, 674 P.2d 1271 (1984).
Generally, a decision to grant or deny a motion to vacate a default judgment is within the sound discretion of the trial court. White v. Holm, 73 Wash.2d 348, 351, 438 P.2d 581 (1968). The decision will not be disturbed on appeal unless the trial court abused its discretion. White, 73 Wash.2d at 351, 438 P.2d 581. Courts, however, have a nondiscretionary duty to vacate void judgments. Brenner v. Port of Bellingham, 53 Wash.App. 182, 188, 765 P.2d 1333, 1336 (1989); but see Kennedy v. Sundown Speed Marine, Inc., 97 Wash.2d 544, 548, 647 P.2d 30 (1982), cert. denied, Volvo Penta v. Kennedy, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982) .
When a default judgment has been entered based upon an affidavit of service, the judgment should be set aside only upon convincing evidence that the return of service was incorrect. Allen v. Starr, 104 Wash. 246, 247, 176 P. 2 (1918). An affidavit of service that is regular in form and substance is presumptively correct. Lee v. Western Processing Co., 35 Wash.App. 466, 469, 667 P.2d 638 (1983). The burden is upon the person attacking the service to show by clear and convincing proof that the service was improper. Allen, 104 Wash. at 247, 176 P. 2; McHugh v. Conner, 68 Wash. 229, 231, 122 P. 1018 (1912).
Demopolis argues that the trial court erroneously decided the issue of whether he was served with the summons and complaint when there were conflicting affidavits. Demopolis, however, did not appear at either of the hearings on his motions to vacate the default judgment and made no request to present live testimony. He did not timely object to the trial court deciding the issue upon affidavits. 3 A litigant may not remain silent regarding a claimed error and later raise the issue on appeal. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 352, 588 P.2d 1346 (1979); Grange Ins. Ass'n v. Ochoa, 39 Wash.App. 90, 92, 691 P.2d 248 (1984). Demopolis, therefore, waived his argument that the fact dispute regarding service could not be resolved on conflicting affidavits.
Furthermore, Demopolis failed to meet his burden to show by clear and convincing proof that the service by Marvin Johnson was improper. See Allen, 104 Wash. at 247, 176 P. 2. The trial court had before it the affidavit of service from Marvin Johnson stating that he personally delivered the summons and complaint to Demopolis at 11 a.m. on January 23, 1989. Johnson's affidavit creates the presumption that service upon Demopolis was correct. See Lee, 35 Wash.App. at 469, 667 P.2d 638. Other evidence in the record corroborates Johnson's affidavit. A copy of a telephone message taken at about noon on January 23 to Leen from Johnson states that "Mr. Demopolis has received your papers--could you send [Johnson] his $25 check[.]" An entry in Leen's fee statement regarding Demopolis's case indicates that on January 24, 1989, another lawyer in Leen's office traveled to 7013 Linden to obtain the affidavit of service from Johnson.
Demopolis, to support his claim that service was improper, submitted his own declaration stating that he found a copy of the complaint, without the summons, in the mailbox at one of his business addresses. He also submitted a certificate signed by two persons who claimed to have been with Demopolis at a restaurant during the time that Johnson said that he had served the summons and complaint. Demopolis himself, however, did not attest that he was at the restaurant when Johnson served the summons and complaint. This evidence was not clear and convincing proof that the service by Marvin Johnson was improper.
We next decide whether the trial court erred when it failed to vacate the default judgment although Demopolis had not been given notice of the motion for default.
Under CR 55(a)(3), "[a]ny party who has appeared in the action for any...
To continue reading
Request your trial
-
Sintra, Inc. v. City of Seattle, 62304-0
...of the evidence submitted and based on tenable grounds. In addition, Mr. Hamack was entitled to attorney's fees. See Leen v. Demopolis, 62 Wash.App. 473, 815 P.2d 269 (1991). QUALIFIED Sintra argues the trial court erred by dismissing its claims against the City's employees on summary judgm......
-
In re Welfare S.I.
...time, and whether the defendant has a defense to the claim. Colacurcio, 110 Wash.App. at 497, 41 P.3d 506 ; Leen v. Demopolis, 62 Wash.App. 473, 477–78, 815 P.2d 269 (1991). The court has a nondiscretionary duty to vacate a void judgment, and judgment must be vacated regardless of the lapse......
-
McCarthy v. Taylor
...Moving on, the majority cites Stiles , 277 P.3d 9. There, the Washington Court of Appeals relied on its decision in Leen v. Demopolis , 62 Wash.App. 473, 815 P.2d 269 (1992), which held that an attorney appearing pro se could recover attorney fees because pro se attorneys must take time fro......
-
In re S.I. D.D.
...within a reasonable time, and whether the defendant has a defense to the claim. Colacurcio, 110 Wn. App. at 497; Leen v. Demopolis, 62 Wn. App. 473, 477-78, 815 P.2d 269 (1991). The court has a nondiscretionary duty to vacate a void judgment, and judgment must be vacated regardless of the l......
-
§55.6 Analysis
...to the court by a pro se defendant stating why service of process was inadequate did not constitute an appearance. Leen v. Demopolis, 62 Wn.App. 473, 480-81, 815 P.2d 269 (1991), review denied, 118 Wn.2d 1022 The withdrawal by an attorney subsequent to an appearance does not constitute a wi......
-
§54.6 Analysis
...in the complaint only to later request, without leave to amend, a different type or larger damage award. See, e.g., Leen v. Demopolis, 62 Wn.App. 473, 483, 815 P.2d 269 (1991) ("Based upon a party's right to due process, a default judgment in excess of the relief requested in the complaint ......
-
§60.6 Analysis
...physician—warranted new trial). (e) Void judgments Courts have "a nondiscretionary duty to vacate void judgments." Leen v. Demopolis, 62 Wn.App. 473, 478, 815 P.2d 269 (1991), review denied, 118 Wn.2d 1022 (1992); see also Brickum Inv. Co. v. Vernham Corp., 46 Wn.App. 517, 520, 731P.2d533 (......
-
Table of Cases
...(USA), Inc. v. Mut. of Enumclaw Ins. Co., 150 Wn. App. 1, 206 P.3d 1255, review denied, 167 Wn.2d 1007 (2009): 7.4 Leen v. Demopolis, 62 Wn. App. 473, 815 P.2d 269 (1991), review denied, 118 Wn.2d 1022 (1992): 11.7(15)(a) Leeper v. Dep't of Labor & Indus., 123 Wn.2d 803, 872 P.2d 507 (1994)......