STANLEY v. COLE

• Decision Date: 27 September 2010
• Docket Number: No. 64922-1-I.,64922-1-I.
• Citation: 239 P.3d 611
• Court: Washington Court of Appeals
• Parties: Jamie STANLEY, Appellant, v. Harold COLE and “Jane Doe” Cole, and their marital community, Respondents.

239 P.3d 611

Jamie STANLEY, Appellant,

v.Harold COLE and “Jane Doe” Cole, and their marital community, Respondents.

No. 64922-1-I.

Court of Appeals of Washington,Division 1.

Sept. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

Vonda M. Sargent, Law Offices of Vonda Sargent, Seattle, WA, Kenneth W. Masters, Wiggins & Masters PLLC, Bainbridge Island, WA, for Appellant.

Timothy R. Gosselin, Gosselin Law Office, Tacoma, WA, Jeffrey R. Lanthhorn, Hollenbeck Lancaster Miller & Andrews, Bellevue, WA, for Respondent.

LAU, J.

¶ 1 Jamie Stanley appeals the denial of her motion to vacate an arbitration award. She contends the award should have been vacated because her attorney was taking care of her ill parents for several months, which prevented her from filing a prehearing statement, appearing at the arbitration hearing, or timely requesting a trial de novo. Because the trial court acted well within its discretion in concluding these circumstances did not justify relief under CR 60(b)(9) as an “unavoidable casualty or misfortune” that prevented Stanley from prosecuting her case, we affirm.

FACTS ¹

¶ 2 In mid-December 2004, Harold Cole pulled out from a stop sign and collided with Jamie Stanley as she was driving on Warren Avenue in Bremerton. On November 14, 2007, she commenced this lawsuit against Cole in Kitsap County Superior Court, claiming his negligence caused the accident and damages. The following month, Cole filed his answer and affirmative defenses.

¶ 3 Stanley's attorney, Vonda Sargent, filed a statement of arbitrability pursuant to MAR 1.2 on July 31, 2008. On August 22, the case was transferred to mandatory arbitration. An arbitrator was appointed in October 2008. He scheduled the arbitration hearing for December 5, 2008, ² with prehearing statements of proof due by November 21.

¶ 4 Cole timely delivered his prehearing statement to Sargent and the arbitrator. He admitted liability but contested proximate cause and Stanley's damages. The statement disclosed the evidence he planned to present. It included a witness list, Stanley's medical records, employment records, and Stanley's April 30, 2008 deposition transcript. The statement also confirmed the arbitration hearing date, time, and location. The record does not show whether Sargent communicated with Stanley about the upcoming arbitration. Sargent failed to submit a prehearing statement to Cole's attorney or the arbitrator. ³ The arbitration hearing proceeded as originally scheduled. But neither Stanley nor Sargent appeared. ⁴ Sargent never requested a hearing continuance or communicated in any way with Cole's attorney or the arbitrator during this period. After the hearing, the arbitrator awarded Stanley $7,000, served a copy of the award on the parties, and filed the award on December 8, 2008. Neither party requested a trial de novo within 20 days of the arbitration award filing date, as required under MAR 6.2. ⁵

¶ 5 Almost two months later, on February 6, 2009, Stanley moved to vacate the arbitration award under CR 60. To support the motion, she attached Sargent's declaration. She submitted no other evidence and cited no case authority. Relying on CR 60(b)(9)'s “unavoidable casualty or misfortune” provision, ⁶ Stanley argued Sargent had experienced an unavoidable misfortune that prevented her from prosecuting the case-the illness of both her parents.

¶ 6 Sargent's declaration testimony explained why she had neglected Stanley's case between late August 2008 and January 5, 2009. She described her mother's declining health and eventual death on November 17, 2008. ⁷ The funeral occurred on the same day the prehearing statement was due. Two or three days before the arbitration hearing, her father was briefly hospitalized due to illness. Sargent said she spent the entire month of December taking him to various specialists. Also during this period, her office lease expired. Friends and family helped her move to a new office space. But she also acknowledged,

15. While all of this was going on, I apparently failed to contact opposing counsel [Cole's attorney] to inform him of my situation.

16. Somehow, I called his co-worker while I was dealing with my mother dying, but I do not recall making that phone call nor do I recall speaking with him.

....

31. I admit I neglected my practice to the extent that an arbitration was held without my presence or my client's presence, however, I can think of no better reason than stopping and caring for aging parents.

When Sargent returned to work in January 2009, she was “faced with a mountain of paperwork” and “finally located the arbitration award.”

¶ 7 After Cole's attorney failed to return her telephone calls and moved to enter judgment on the arbitration award, Stanley filed the motion to vacate. The court denied the motion to vacate on February 13, 2009. ⁸ It also denied Stanley's untimely reconsideration motion ⁹ and granted Cole's motion for entry of judgment on the arbitration award. Stanley appeals.

ANALYSIS

¶ 8 Stanley contends the superior court erred by denying her motion to vacate the arbitration award. Under CR 60(b), a court may relieve a party from a final judgment, order, or other proceeding in limited situations specified by the rule. We review the court's decision for an abuse of discretion. Pybas v. Paolino, 73 Wash.App. 393, 399, 869 P.2d 427 (1994). “A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds.” Boguch v. Landover Corp., 153 Wash.App. 595, 619, 224 P.3d 795 (2009). “[D]iscretion is abused only where no reasonable person would have taken the view adopted by the trial court.”

Carle v. McChord Credit Union, 65 Wash.App. 93, 111, 827 P.2d 1070 (1992).

¶ 9 Stanley argues that the arbitration award should be treated as a default judgment because neither she nor her attorney appeared at the arbitration hearing. Courts apply CR 60(b) more liberally to judgments by default than those on the merits. Pybas, 73 Wash.App. at 399, 869 P.2d 427. While Stanley concedes the arbitration hearing was not “strictly” a default proceeding, she maintains that it was “similar,” so the more lenient CR 60(b) standard for default judgments should apply. Appellant's Br. at 11. She relies principally on Pybas, which also involved a CR 60(b) motion to set aside an arbitration award. The court there concluded that the more liberal standard for vacating default judgments was inapplicable. Pybas, 73 Wash.App. at 399, 869 P.2d 427. It observed that this standard was rooted in a policy consideration favoring judgments on the merits but that consideration had “little relevance” in the case before it because there had been a hearing on the merits and “nothing suggests that [plaintiff] was deprived of an opportunity to present his case at the arbitration hearing.” Pybas, 73 Wash.App. at 400, 869 P.2d 427 (emphasis added). Stanley argues that the opposite conclusion should be reached in her case because the arbitration proceeding was not a hearing on the merits and she had no opportunity to present her case. As a consequence, she claims the arbitration award is essentially a default judgment and the more liberal standard for vacating the judgment should apply.

¶ 10 We disagree. Under CR 55(a)(1), a party is subject to default if the party “has failed to appear, plead, or otherwise defend....” Stanley fully participated in prosecuting her case until Sargent's parents suffered illnesses. Sargent appeared for Stanley, filed a complaint, elected to set the matter for arbitration, selected an arbitrator, and participated in discovery. Stanley and Sargent's absence from the hearing therefore was not the equivalent of failing to appear and prosecute the action. ¹⁰ See Tacoma Recycling, Inc. v. Capitol Material Handling Co., 34 Wash.App. 392, 394-95, 661 P.2d 609 (1983) (judgment did not qualify as default judgment though defendant failed to attend bench trial because defendant had previously appeared and filed pleadings). In addition, the arbitration hearing constituted a hearing on the merits. Although Stanley and Sargent did not participate in the hearing, the arbitrator awarded $7,000 in Stanley's favor based on the evidence presented, which included her deposition transcript and medical and employment records provided during discovery. When a tribunal considers evidence, the resulting judgment is not a default judgment even if one party is absent. See In re Marriage of Daley, 77 Wash.App. 29, 32, 888 P.2d 1194 (1994). Because the arbitration award here was not equivalent to a default judgment, we reject Stanley's contention that the trial court should have applied a more liberal standard to her CR 60(b) motion to vacate.

¶ 11 We next address whether the trial court abused its discretion because Stanley was entitled to relief under CR 60(b)(9). ¹¹ Under this rule, a court may relieve a party or the party's legal representative from a final judgment, order, or proceeding if the court finds “[u]navoidable casualty or misfortune prevent[ed] the party from prosecuting or defending.” CR 60(b)(9). Stanley cites no case authority addressing what circumstances qualify as an “unavoidable casualty or misfortune” under this rule. And our search reveals sparse Washington authority on this question.

¶ 12 Our Supreme Court adopted this rule in 1967 as part of its complete reorganization of Washington civil procedure rules. Curtis Lumber Co. v. Sortor, 83 Wash.2d 764, 766-67, 522 P.2d 822 (1974); Order Adopting Civil Rules for Superior Court, 71 Wn.2d at xvii, cxxiv (1967). While CR 60(b) largely follows its federal counterpart, several subsections, including CR 60(b)(9), were instead taken from RCW 4.72.010. That statute allowed a superior court to vacate a judgment “[f]or unavoidable casualty, or misfortune preventing the party from prosecuting or defending.” ¹² RCW 4.72.010(7). Because this statutory language was incorporated wholesale into CR 60(b)(9), we find three...