Rush v. Doe

• Decision Date: 02 November 2015
• Docket Number: No. 72424–0–I.,72424–0–I.
• Citation: 190 Wash.App. 945,361 P.3d 217
• Parties: Neil RUSH, a single person, Appellant, v. William I. BLACKBURN and Jane Doe Blackburn, and the marital community composed thereof, dba, Top Notch Towing, a Washington company, Respondents, Steven Jablinske and Jane Doe Jablinske, and the marital community composed thereof, and Hartford Underwriters Insurance Company, a foreign insurance company, Defendants.
• Court: Washington Court of Appeals

190 Wash.App. 945

361 P.3d 217

Neil RUSH, a single person, Appellant,

v.William I. BLACKBURN and Jane Doe Blackburn, and the marital community composed thereof, dba, Top Notch Towing, a Washington company, Respondents,Steven Jablinske and Jane Doe Jablinske, and the marital community composed thereof, and Hartford Underwriters Insurance Company, a foreign insurance company, Defendants.

No. 72424–0–I.

Court of Appeals of Washington, Division 1.

Nov. 2, 2015.

Michael Thomas Watkins, Law Offices of Michael T. Watkins, Mountlake Terrace, WA, George Wallace McLean Jr., Law Offices of George W. McLean, Jr., Seattle, WA, for Appellant.

Jeffrey Charles Wishko, Anderson Hunter Law Group, Everett, WA, for Respondents.

Opinion

DWYER, J.

¶ 1 Neil Rush's vehicle was towed and impounded by William Blackburn, dba Top Notch Towing. Rush prevailed at a statutory impound hearing contesting the impoundment. Before the district court rendered its decision in the impoundment matter, however, Blackburn sold Rush's vehicle at auction. Rush then filed a lawsuit against Blackburn in the superior court, asserting claims for conversion and violation of the Consumer Protection Act, chapter 19.86 RCW (CPA). After Blackburn did not appear, a default judgment was entered against him. More than a year later, after Rush had filed supplemental proceedings to enforce the default judgment, Blackburn moved the superior court to vacate the default judgment against him and for summary judgment on the CPA claim. The court granted both motions. We now affirm, in part, and reverse, in part.

I

A. The tow, the impound, and the auction

¶ 2 On Saturday, August 27, 2011, Rush's 1983 Mercedes Benz was illegally towed, at the request of Steven Jablinske, and taken to Top Notch Towing's impound lot. At the time the impound was requested, the vehicle was parked, with permission, on a private property easement.

¶ 3 On Monday, August 29, Top Notch mailed a notice of impound to Rush's Mountlake Terrace residence. Approximately four days after the vehicle was impounded, Rush contacted Top Notch and was told that he would have to pay $700 to obtain the release of his vehicle. Rush then contacted an attorney to assist him in recovering the vehicle. On September 2, Rush's attorney faxed a letter of representation to Top Notch asking that all communications be made through the law firm. On September 7, Rush received, and signed for, a certified letter and notice of vehicle impound from Top Notch.

¶ 4 On September 9, Rush hand delivered an impound hearing request form to Nicole Blackburn, Top Notch's manager and the daughter of Top Notch's owner, William Blackburn.¹Nicole Blackburn signed the form and made a copy for Top Notch's files. That same afternoon, Rush took the executed hearing request form to the Everett District Court, paid a $73 filing fee, and filed the impound hearing request with the court clerk.

¶ 5 On September 14, the clerk of the Everett District Court mailed, via regular mail, notices of civil hearing to Top Notch, Jablinske, and Rush.²

¶ 6 On October 11, Blackburn sold Rush's vehicle (and 11 other impounded vehicles) to himself at auction for $1 each. Although Blackburn had Rush's (and Rush's attorney's) contact information for more than a month prior to the sale, he did not notify either of them that an auction was going to take place.

¶ 7 On November 3, Rush, his attorney, and Jablinske appeared and presented evidence at an impound hearing in the Everett District Court. Blackburn failed to appear at the hearing. On November 15, the Honorable Tam T. Bui, Everett District Court judge, issued a memorandum decision finding that Jablinske's private impoundment of Rush's Mercedes violated RCW 46.55.120. The court ruled:

Under RCW 46.55.120(3)(e), Mr. Rush is entitled to the filing fee of $73.00, and reasonable damages for loss of the use of his vehicle from 8/27/2011–10/11/2011, at $25 per day, in the amount of $1,150.00.

¶ 8 Pursuant to the district court's ruling, Jablinske was ordered to pay Top Notch the impoundment and storage charges incurred and Rush was authorized to redeem his vehicle from Top Notch without the payment of any costs. Shortly after this order was entered, Rush and his attorney learned for the first time that Blackburn had already sold at auction Rush's vehicle.

B. The instant lawsuit—the default judgment against Blackburn

¶ 9 On December 16, Rush filed a lawsuit in King County Superior Court against his auto insurance company, Hartford Underwriters Insurance Company (Hartford), Jablinske, and Top Notch Towing. Rush alleged, inter alia, that Top Notch had wrongfully sold his vehicle.

¶ 10 On December 27, Rush filed his first amended complaint,³again alleging, inter alia, that Top Notch had wrongfully sold his vehicle. Copies of this complaint and a summons were served upon Blackburn on January 4, 2012. Blackburn was required to answer Rush's complaint by January 25, but, as he had done with the impound hearing notice, Blackburn simply ignored the summons and failed to appear, plead, or otherwise defend the lawsuit, even after proper service.

¶ 11 On April 27, 2012, Rush filed his second amended complaint. Therein, Rush once again alleged that Blackburn had wrongfully sold Rush's vehicle. For the first time, Rush also asserted that the allegedly wrongful sale violated the CPA.

¶ 12 This complaint alleged, in pertinent part:

5.3 Defendant Top Notch wrongfully sold Rush's 1983 Mercedes Benz automobile at public auction prior to the issuance of Judge Bui's Impoundment Hearing Order. At the time of the auction, Top Notch had notice of the pending hearing.

....

5.5 Top Notch's sale of the automobile when the hearing was pending was an unfair and deceptive act or trade practice, constituting a violation of the Consumer Protection Act.

¶ 13 On March 26, a default judgment was entered against Jablinske.

¶ 14 On May 6, copies of Rush's second amended complaint and summons were served upon Blackburn. Blackburn was required to answer this complaint by May 26, but, again, Blackburn simply ignored the summons and failed to appear, plead, or otherwise defend the lawsuit, even after proper service.

¶ 15 On July 20, 2012, a default judgment was entered against Blackburn. On July 25, 2013 Rush voluntarily dismissed his claims against Hartford.

C. Rush's default judgment against Top Notch vacated

¶ 16 On August 20, 2013, Rush's attorneys sent a letter to Blackburn, enclosing a copy of the default judgment and demanding payment. Blackburn simply ignored the letter. Thereafter, Rush commenced enforcement of the judgment, bringing supplemental proceedings in the Snohomish County Superior Court. It was not until October 7, after Blackburn had been served with supplemental proceeding pleadings, that he made any response in the King County case.

¶ 17 On October 29, Blackburn brought a motion to vacate the default judgment, which was heard on November 13 by the Honorable Theresa Doyle, the same judge who had entered the default judgment. The trial court vacated the default judgment against Blackburn, finding:

1. There is substantial evidence to support at least a prima facie defense to Plaintiff's claims for conversion and a Consumer Protection Act violation;

2. Defendant Blackburn's failure to timely appear in the action, and answer the Complaint, was due to mistake and excusable neglect arising from Plaintiff's insurer's agreement to compensate Plaintiff for the loss of his vehicle;

3. Defendant Blackburn acted with due diligence after learning about the entry of the default judgment; and

4. No substantial hardship will result to Plaintiff by having to litigate his claims on the merits.

The Court further finds that there are existing sufficient extraordinary circumstances to warrant relief under CR 60(b)(II).

D. Rush's CPA claim against Blackburn subsequently dismissed

¶ 18 Thereafter, Blackburn moved for partial summary judgment, seeking dismissal of Rush's CPA claim. He asserted that summary judgment was proper because Rush did not establish (1) that Blackburn had engaged in an unfair or deceptive act or practice, or (2) that the alleged act or practice had a public interest impact.

¶ 19 On June 20, 2014, the trial court granted Blackburn's motion for partial summary judgment. The court, focusing on the public interest element, explained its ruling thusly:

I don't find that the public interest element of the Consumer Protection Act claim is made, taking all of the evidence in the light most favorable to the nonmoving party. I don't find that this is a situation that's likely to be repeated or has been repeated. Mr. Blackburn's actions in selling the vehicles to himself, as cited by Mr. Rush's attorney Mr. Watkins, that's not illegal. The issue is selling the vehicle before the impound hearing occurred in this case, and I find that it's very unlikely to occur again. Therefore, the public interest impact element of a CPA claim is not met.

This appeal followed.

II

¶ 20 Rush first contends that the trial court erred by vacating his default judgment against Blackburn. This is so, he asserts, because an order pursuant to CR 60(b)(1)was time barred and the trial court did not make findings sufficient to support its order vacating the judgment under CR 60(b)(11). We disagree.

¶ 21 We review a trial court's ruling on a motion to vacate a default judgment for an abuse of discretion. Little v. King,160 Wash.2d 696, 702, 161 P.3d 345 (2007). A trial court abuses its discretion only when its decision is manifestly unreasonable or is based on untenable grounds or untenable reasons. Luckett v. Boeing Co.,98 Wash.App. 307, 309–10, 989 P.2d 1144 (1999)(quoting Lane v. Brown & Haley,81 Wash.App. 102, 105, 912 P.2d 1040 (1996)). Unchallenged findings of fact are verities on appeal. Cowiche Canyon Conservancy v. Bosley,118 Wash.2d 801, 819, 828 P.2d 549 (1992). Unchallenged conclusions of law become the law of the case. King Aircraft Sales, Inc. v. Lane,68 Wash.App. 706, 716, 846 P.2d 550 (1993).

¶ 22 Default...