Seidler v. Hansen, 1478--II

• Decision Date: 20 February 1976
• Docket Number: No. 1478--II,1478--II
• Citation: 14 Wn.App. 915,547 P.2d 917
• Parties: Susan SEIDLER, Appellant, v. Robert L. HANSEN et al., Respondents.
• Court: Washington Court of Appeals

Page 915

14 Wn.App. 915

547 P.2d 917

Susan SEIDLER, Appellant, v. Robert L. HANSEN et al., Respondents.

No. 1478--II.

Court of Appeals of Washington, Division 2.

Feb. 20, 1976.

Glenn Abraham, Port Townsend, for appellant.

W. D. Palmer, Sr., Seattle, for Resolute Ins. Co.

George R. Stege, III, of Benson, Chadwick, Stege & Wines, Seattle, for respondents.

PEARSON, Judge.

The action in this case was triggered in October of 1970 when defendants levied upon a truck and camper to satisfy a judgment against Dale Brady, son-in-law of the plaintiff Susan Seidler. Mrs. Seidler then instituted proceedings to recover the property under RCW 6.20.010 ¹ by filing an affidavit alleging the property was hers, together with a supporting letter by Brady, and posting a redelivery bond. The defendants ultimately prevailed at trial and the plaintiff appeals.

Briefly stated, this appeal raises three issues: first, whether the trial court erred in considering additional evidence prior to making its final determination in this action; second, whether the 5-day notice provisions of CR 52(c) are mandatory; and third, whether the trial court erred in its valuation of the property involved in this suit. We will discuss these questions in turn. For the reasons stated below, we find no error.

In April 1972 a proceeding was held to decide the ownership of the truck and camper. At this time the defendants attempted to show that Brady was the actual owner of the property, but had put title to the assets in the plaintiff in order to avoid levy by his creditors. Brady, who was the only witness at this proceeding, denied any interest in the property. Based primarily on this denial, the trial court orally ruled defendants had failed to prove Brady was the actual owner of the truck and camper and tentatively held in favor of the plaintiff. No written findings of fact, conclusions of law, or judgment were entered at this time.

In April 1974 the defendant Luella Carlson ² filed a motion for reconsideration and for entry of findings of fact, conclusions of law, and judgment in her favor. Plaintiff received proper notice of the motions, to which exhibits were attached containing additional evidence defendant wanted the trial judge to evaluate on reconsideration, and a request that a $5,000 judgment be entered against the plaintiff. Defendant, however, failed to serve the plaintiff with a copy of her proposed findings of fact and conclusions of law prior to argument of the motions. Over plaintiff's objections, the court received the additional evidence and signed defendant's proposed findings of fact and conclusions of law. Judgment against the plaintiff and her surety was subsequently entered in the amount of $5,000.

Plaintiff assigns error to the trial court's reopening of the case to consider additional evidence on the issue of ownership of the truck and camper. The evidence consisted of a portion of a transcript of Brady's testimony received at the trial of a case unrelated to the present one, occurring subsequent to the trial of the present case. The transcript showed that Brady's testimony in the subsequent case related to the question of ownership of the truck and camper involved in the case at bench. It showed the statements he gave in the subsequent proceeding contradicted those he had given previously in this proceeding. The additional evidence also included the findings of fact and conclusions of law of the trial judge in the subsequent trial. These also related to Brady's credibility.

We note first that a trial court's oral decision has no binding or final effect unless it is formally incorporated into findings of fact, conclusions of law, and judgment. Ferree v. Doric Co., 62 Wash.2d 561, 383 P.2d 900 (1963); Thompson v. Thompson, 9 Wash.App. 930, 515 P.2d 1004 (1973).

Until a formal judgment is entered, a trial court is free to change its mind, Fosbre v. State, 70 Wash.2d 578, 424 P.2d 901 (1967), and the defendant here was free to utilize whatever procedural tactics she deemed appropriate to obtain entry of findings of fact, conclusions of law, and judgment in her favor.

The only objection to admission of the additional evidence raised at trial was that it was irrelevant. We disagree. The issue before the court was the ownership of the truck and camper. At the close of the trial, the trial judge expressed his doubt as to the sufficiency of the evidence to prove Brady was the actual owner of this particular property. The new evidence bore directly on Brady's credibility and convinced the trial court that Brady had lied during his testimony in the 1972 proceeding. Since no formal findings or conclusions had been entered, it was proper for the trial judge and within his discretion to reopen the case and permit further proof on this point. Sweeny v. Sweeny, 52 Wash.2d 337, 324 P.2d 1096 (1958); Bryant v. Vern Cole Realty Co., 39 Wash.2d 571, 237 P.2d 487 (1951).

Plaintiff next contends the trial judge erred in signing defendant's proposed findings of fact and conclusions of law, since she had not been served with a copy of them 5 days prior to their presentation.

We note that while the plaintiff made a general objection to the adoption of defendant's proposed findings of fact and conclusions of law because they were contrary to the trial court's oral ruling two years earlier, she failed to object to them on the ground that defendant had not timely served her with a copy of the document.

As a general rule, an appellate court will consider only those issues properly presented to the trial court. State v. Henry, 2 Wash.App. 166, 467 P.2d 325 (1970); Christensen v. Hoskins, 65 Wash.2d 417, 397 P.2d 830 (1964). Failure to afford the trial court the opportunity to rule on asserted error will usually constitute waiver of the right to assert that error on appeal. State v. Van Auken, 77 Wash.2d 136, 460 P.2d 277 (1969). In any event, plaintiff's attorney declined an offer by the trial judge and defendant's attorney to continue argument against adoption of the proposed findings and conclusions until later the same day. This conduct constituted an additional manifestation of plaintiff's intention to waive objection to defendant's failure to comply with any time limits required by the court rules. Cf. Peterson v. David, 69 Wash.2d 566, 419 P.2d 138 (1966).

Alternatively, we notice plaintiff's objection to detendant's failure to serve her with a copy of the proposed findings and conclusions 5 days prior to...