Lindgren v. Lindgren

• Decision Date: 23 July 1990
• Docket Number: No. 24101-0-1,24101-0-1
• Citation: 794 P.2d 526,58 Wn.App. 588
• Parties: Frida T. LINDGREN, Plaintiff, v. Norman G. LINDGREN and Virginia Kathy Lindgren, husband and wife, and the marital community; and Chris Demopolis and Jane Doe Demopolis, husband and wife, and their marital community, Defendants, and Chris DEMOPOLIS, Appellant, v. Lana R. KIMZEY, a/k/a Lana R. Rodes, Respondent.
• Court: Washington Court of Appeals

Page 588

58 Wn.App. 588

794 P.2d 526

Frida T. LINDGREN, Plaintiff, v. Norman G. LINDGREN and Virginia Kathy Lindgren, husband and wife, and the marital community; and Chris

Demopolis and Jane Doe Demopolis,

husband and wife, and their

marital community, Defendants, and Chris DEMOPOLIS, Appellant, v. Lana R. KIMZEY, a/k/a Lana R. Rodes, Respondent.

No. 24101-0-1.

Court of Appeals of Washington Division 1.

July 23, 1990.

Reconsideration Denied Oct. 1, 1990.

Chris Demopolis, James E. Lobsenz, Seattle,for appellant Chris Demopolis.

J. David Andrews, Timothy J. O'Connell, David T. Pimental, Seattle, for respondent Lana R. Kimzey.

WEBSTER, Judge.

Chris Demopolis appeals an order vacating a default judgment that he obtained against Lana R. Kimzey. He maintains that the order was improper because Kimzey failed to serve him with a motion as required by court rule and that the trial court abused its discretion when it vacated the judgment pursuant to CR 60(b). Kimzey cross appeals arguing that the trial court erred by awarding only part of her attorney's fees. We affirm the trial court and grant Kimzey additional attorney's fees.

Facts

In December 1983 Frida Lindgren, owner of a condominium, brought a quiet title action against her son, her son's wife, and Demopolis. She alleged that a quit claim deed, executed March 28, 1983, purporting to transfer her interest in the condominium to Chris Demopolis, was a forgery. She claimed that she never intended to transfer the condo to Demopolis. On March 1, 1985, the court granted her request and declared the deed void.

Meanwhile, on September 20, 1984, Demopolis filed an answer and a third party complaint alleging that Lindgren's son and Lana Kimzey, a person whose ostensible signature and notary seal appeared on the quit claim deed, conspired to defraud Demopolis by forging Frida Lindgren's signature. Demopolis requested $5,200 damages, interest, attorney's fees, and damages to his professional reputation. On October 10, 1984, Demopolis and an agent visited Kimzey at her place of employment to serve her with papers. Demopolis contends that the agent delivered "copies of the Third Party Complaint" to Kimzey. However, Kimzey states in an affidavit that Demopolis, not the agent, handed her the papers. She admits receiving a summons but claims that she was never notified that Demopolis intended to seek a default judgment.

Kimzey filed no response, so Demopolis moved for a default judgment on March 29, 1985. In the motion, Demopolis asserted that Kimzey was served with a summons and a "third party complaint" on October 10, 1984. On the same day, the court entered an order of default and a judgment against Kimzey for $5,200 damages for fraud, $2,000 damages to Demopolis's professional reputation, $10,424.93 accrued interest, and $2,000 attorney's fees. The judgment also imposed interest at 100 percent per annum on the outstanding balance until paid.

Over 4 years later on February 22, 1989, Demopolis served a writ of garnishment upon Kimzey. On March 15, 1989, Kimzey filed an objection to the garnishment. To dismiss the garnishment, Kimzey moved the court to vacate the 1985 default judgment. Kimzey sent copies of the motion to Demopolis's attorney. Demopolis filed a response to the motion on April 5, 1989. Following a hearing, the court granted the motion and vacated the judgment. On April 21, 1989, the court entered an order quashing the garnishment and awarded Kimzey attorney's fees but only the portion of her fees incurred in obtaining a dismissal of the garnishment.

Service of a Motion to Vacate

Demopolis argues that the court lacked jurisdiction to hear Kimzey's motion to vacate because she failed to serve him with the motion as required by CR 60. CR 60(e) prescribes the procedure for motions to vacate. It provides in part:

(3) Service. The motion, affidavit, and the order to show cause shall be served upon all parties affected in the same manner as in the case of summons in a civil action at such time before the date fixed for the hearing as the order shall provide; but in case such service cannot be made, the order shall be published in the manner and for such time as may be ordered by the court, and in such case a copy of the motion, affidavit, and order shall be mailed to such parties at their last known post office address and a copy thereof served upon the attorneys of record of such parties in such action or proceeding such time prior to the hearing as the court may direct.

Demopolis argues that without service of the motion on the adverse party, the court lacks jurisdiction, and therefore, authority to vacate a judgment. His argument is without merit.

RCW 4.28.020 provides,

Jurisdiction acquired, when. From the time of the commencement of the action by service of summons, or by the filing of a complaint, or as otherwise provided, the court is deemed to have acquired jurisdiction and to have control of all subsequent proceedings.

This statute declares that once original jurisdiction is properly acquired, a superior court has continuing jurisdiction over a controversy from beginning to end. A motion to vacate under CR 60(b) is part of the original suit and, as such, does not require independent jurisdictional grounds. In re Marriage of Parks, 48 Wash.App. 166, 171, 737 P.2d 1316 (1987) (citing Smith v. Widman Trucking and Excavating, Inc., 627 F.2d 792, 799 (7th Cir.1980)). In Parks, the court concluded, relying on RCW 4.28.020,

a CR 60(b) motion is ancillary to or a continuation of the original suit and so long as the court had jurisdiction in the original suit, jurisdiction continues for the purposes of the CR 60(b) motion.

Id. 48 Wash.App. at 172, 737 P.2d 1316. The court acquired jurisdiction over Demopolis when he was originally served with Lindgren's quiet title suit. It also had jurisdiction over him because by filing a third party complaint against Kimzey, he availed himself of the court's jurisdiction so as to constitute consent to jurisdiction. See generally 2 L. Orland, Wash.Prac., Trial Practice § 10 (3d ed. 1972). Most importantly, it can hardly be said that the court had no jurisdiction over Demopolis, who had, only a few weeks earlier, filed in the court a writ of garnishment directed at Kimzey. Demopolis was contemporaneously availing himself of the court's powers to enforce his judgment. Demopolis's argument that the court had no jurisdiction is overly technical. ¹

We distinguish the cases cited by Demopolis which, he claims, hold that service of a CR 60 motion is a jurisdictional prerequisite to a court having power to vacate a judgment. State ex rel. Gaupseth v. Superior Ct., 24 Wash.2d 371, 164 P.2d 890 (1946); State ex rel. Hibler v. Superior Ct., 164 Wash. 618, 3 P.2d 1098 (1931). Neither case involved a party who, only weeks before the motion to vacate was filed, attempted to enforce his judgment. Moreover, the courts' language upon which Demopolis relies--that the failure to serve deprives the court of jurisdiction to hear a motion to vacate--is arguably unnecessary to the courts' decisions and clearly inconsistent with a statute giving a trial court continuing jurisdiction to adjudicate matters in an ongoing litigation. The statute, Rem.Rev.Stat. § 238, the former codification of RCW 4.28.020, was in effect at the time both decisions were entered. Neither case cited Rem.Rev.Stat. § 238; we must presume the court did not consider its application when rendering the decisions.

Although no jurisdictional problem is created by Kimzey's failure to serve Demopolis, we must still determine the appropriate remedy for failing to comply with the proper procedure. It cannot be disputed that CR 60(e)(3) imposed a duty on Kimzey to serve the motion to vacate upon Demopolis, if service was possible. The apparent purpose of the rule is purely to provide notice to an opposing party. Thus, a modification or vacation of a judgment may not be entered when the adversary party to the motion to vacate has not been properly served and fails to appear for the motion. In re Marriage of Moore, 53 Wash.App. 687, 769 P.2d 881 (1989) (invalidated modification of divorce decree because adversary party to motion to modify resided outside state, received a 20-day rather than 60-day summons to respond, and failed to appear for the motion). However, when a copy of the motion is received by the attorney for the adversary party, who has recently filed papers relating to the same action, and the party appears and defends the motion, as was the case here, it is clear that the party had adequate notice of the motion to vacate. If the adversary party has insufficient time to prepare for the motion because of defective service, this objection can be made so that the trial court can grant a continuance. Demopolis's lawyer received a copy of the motion more than a week before the scheduled hearing date and never argued that he had insufficient time to prepare. The length and thoroughness of his memorandum filed in opposition to the motion indicated that he had ample time. Thus, we believe any irregularity occasioned by Kimzey's failure to serve Demopolis personally with the motion did not affect his ability to respond. Undeniably, the service requirement of CR 60(e) is important. A motion to vacate might be brought at a time when the party who obtained the judgment believes the case is concluded and no longer engages the services of the lawyer who originally pursued the matter. Being served with the motion ensures that the party is given notice of the reopening of the proceedings. As long as the party has a meaningful opportunity to be heard and adequate time to prepare, this technical deviation from proper procedure is inconsequential. As our Supreme Court remarked when it permitted a departure from the procedure required by CR 60:

There was a violation of CR 60 in this case. But the rules are to be construed to secure the just determination of every action....