Spoelstra v. Gahn, No. 56996-1-I (Wash. App. 11/13/2006)

• Court: Washington Court of Appeals
• Writing for the Court: Per Curiam
• Decision Date: 13 November 2006
• Docket Number: No. 56996-1-I.
• Citation: Spoelstra v. Gahn, No. 56996-1-I (Wash. App. 11/13/2006), No. 56996-1-I. (Wash. App. Nov 13, 2006)
• Parties: JOHN SPOELSTRA and SHARLA SPOELSTRA, Respondents, v. DANIEL GAHN and JANE DOE GAHN, Appellants.

Page 1

Unpublished Opinion

JOHN SPOELSTRA and SHARLA SPOELSTRA, Respondents, v. DANIEL GAHN and JANE DOE GAHN, Appellants.

No. 56996-1-I.

Court of Appeals of Washington, Division One.

Filed: November 13, 2006.

Appeal from Snohomish Superior Court. Docket No: 04-2-05742-4. Judgment or order under review. Date filed: 09/16/2005. Judge signing: Honorable Gerald L Knight.

Counsel for Appellant(s), Dan Gahn (Appearing Pro Se), Gold Bar, WA.

Counsel for Respondent(s), Stephan E. Todd, Attorney at Law, Bothell, WA.

PER CURIAM.

Daniel Gahn appeals the trial court's decision granting John and Sharla Spoelstras' motion to vacate a summary judgment. The trial court properly exercised its discretion by granting the motion to vacate the summary judgment because Gahn failed to provide notice to the Spoelstras of the motion for summary judgment. We affirm.

John and Sharla Spoelstra sued Daniel and Jane Doe Gahn in Snohomish County Superior Court. The Spoelstras made several claims against the Gahns, including fraud, extortion, unjust enrichment, and negligent misrepresentation. They alleged that Dan Gahn, who is not a lawyer, required them to give him a quit claim deed to more than 57 acres of property in exchange for his help in resolving some property disputes.

Attorney Jane Koler represented the Spoelstras and filed the complaint against the Gahns. Another attorney, Renee Lee, was assisting Koler, but the two attorneys did not work in the same office or law firm.

On May 6, 2005, Gahn filed a motion for summary judgment. He mailed a copy of the motion to the address that attorney Lee provided when she filed her notice of appearance. The address was for a box at a UPS store. Gahn apparently did not attempt to send a copy to the Spoelstras' other lawyer.

After mailing the copy of the summary judgment motion to Lee, Gahn received a return receipt showing that the mail was delivered on May 7, 2005, and that someone named Reva Cloy signed for the envelope. Before the summary judgment motion was heard, however, the envelope was returned to Gahn unopened with a notation that the box where it was sent had been closed.

Gahn appeared in court on June 15, 2005 for the hearing on his summary judgment motion, but neither the Spoelstras, nor either of their attorneys, appeared. Gahn failed to disclose to the court that the copy he mailed to attorney Lee had been returned unopened with a notation that the box was closed. Because the court file contained a declaration of mailing and a receipt showing that the mail was received, the judge granted Gahn's motion for summary judgment.

The effect of the summary judgment was to validate the quit claim deed from the Spoelstras to Gahn. Gahn recorded the quit claim deed and asked the Snohomish County Assessor's office to continue the property's open space status. That request led to an appraiser visiting the property, which alerted the Spoelstras to the summary judgment.

On August 29, 2005, the Spoelstras moved to vacate the judgment, which the court granted, finding:

1. The order granting summary judgment entered on June 15, 2005 is void in its entirety for want of jurisdiction. There was irregularity in the proceedings due to insufficient notice.

2. The plaintiffs and plaintiffs [sic] counsel did not have sufficient notice of the defendant's motion for summary judgment.

This appeal followed.

CR 60(b)

Gahn argues that the trial court abused its discretion when it granted the Spoelstras' motion to vacate the judgment. He argues that he properly sent notice of the motion to the Spoelstras' attorney and, therefore, there was no irregularity that warranted vacating the judgment. This argument is wholly unpersuasive.

Civil Rule 60(b)(1) provides the authority for vacating a judgment due to an irregularity in the proceedings:

...

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. 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.

An irregularity pursuant to CR 60(b)(1) occurs when there is a failure to follow a prescribed rule or mode of proceeding. Mosbrucker v. Greenfield Implement, Inc., 54 Wn. App. 647, 652, 774 P.2d 1267 (1989). "[I]t consists either in the omitting to do something that is necessary for the due and orderly conducting of a suit, or in doing it in an unreasonable time or improper manner." Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978).

This court reviews a trial court's decision whether to vacate a judgment under CR...