Vaughn v. Chung

• Citation: 830 P.2d 668,119 Wn.2d 273
• Decision Date: 04 June 1992
• Docket Number: No. 58688-8,58688-8
• Parties: Kathleen R. VAUGHN and George M. Vaughn, Respondents, v. Kwan-Bong CHUNG and Jane Doe Chung, husband and wife; Dae S. Seong and Jane Doe Seong, husband and wife, Petitioners.
• Court: Washington Supreme Court

Page 273

119 Wn.2d 273

830 P.2d 668

Kathleen R. VAUGHN and George M. Vaughn, Respondents, v. Kwan-Bong CHUNG and Jane Doe Chung, husband and wife; Dae S. Seong and Jane Doe Seong, husband and wife, Petitioners.

No. 58688-8.

Supreme Court of Washington En Banc.

June 4, 1992.

Alexander & Associates, David J. Bierman, Seattle, for petitioners.

Maltman, Weber, Reed, North & Ahrens, Douglas A. North, Seattle, for respondents.

UTTER, Justice.

Petitioner Kwan-Bong Chung asks this court to reverse the Court of Appeals' decision holding that a trial court has authority to consider a party's CR 60(b) motion to vacate an order of dismissal entered pursuant to CR 41(b)(2). We affirm the Court of Appeals.

I

On December 13, 1985, Kathleen Vaughn and Kwan-Bong Chung were involved in an auto accident. Vaughn sustained serious injuries that required a long course of treatment. Although Vaughn's physical condition wasunstable, her attorney, A. Stephen Anderson, filed a personal injury action on her behalf on July 24, 1986, to preserve her rights under pre-tort reform law.

Chung was insured with Mid-Century Insurance Company. On August 20, 1986, Anderson wrote a letter to Don Jacovich, an insurance adjuster with Mid-Century, informing the insurance company that Anderson was representing Vaughn, and requesting all statements taken from her. Anderson did not mention in the letter that a suit had been filed against Mid-Century's insured.

No action was taken in the case for more than a year, so the Superior Court clerk for Snohomish County filed a notice of dismissal on November 13, 1987, pursuant to CR 41(b)(2). Upon receiving the notice, Anderson served Chung with process on December 6, 1987, and filed an affidavit of service and notice of a change of address with the court on December 10, 1987. As a result, no order of dismissal was entered. Chung allegedly never told Jacovich that a suit had been filed against him. On December 15, 1987, and again on May 4, 1988, the adjuster, Jacovich, sent letters to Anderson requesting documentation of the claim. Anderson did not respond.

According to Anderson's affidavit, he subsequently made an arrangement with Jacovich "to forego the necessity of a notice of appearance and expenditure of expenses [sic] for counsel pending the opportunity to settle the case." The arrangement allegedly included an agreement to give the insurance company 20 days' notice prior to filing a motion for default against it. The agreement, however, was never reduced to writing. Jacovich, in his affidavit, claims that no such agreement was ever made.

On January 12, 1989, the clerk filed and sent its second notice of dismissal for want of prosecution to Anderson. An affidavit of mailing filed on that same date indicates the clerk sent the notice to Anderson. Anderson and his legal assistant, Ann Curtis, claim they never received the notice. The affidavit of a deputy clerk at the Snohomish County Superior Court indicates that the notice was not returned as undeliverable to the clerk's office. When no response was made by Anderson within the 30-day period provided by the rule, the court entered an order of dismissal on February 13, 1989. Prior to that date, on December 13, 1988, the statute of limitations for Vaughn's claim ran.

In July 1989, Anderson and Curtis prepared a settlement brochure and demand, and sent it to the insurance company. The adjustor, Jacovich, claims that in August 1989 he went to the courthouse to check for filings and learned for the first time that an action had been filed in 1986, but had been dismissed for want of prosecution on February 13, 1989. Anderson claims that he first learned of the dismissal when representatives of the insurance company later relayed this information to him.

Relying upon CR 60, Anderson filed a motion to vacate the dismissal, attaching his own affidavit and Curtis's affidavit, both declaring that they never received the January 12, 1989, notice of dismissal. Both Anderson and his assistant, Curtis, claimed that had they received that notice of dismissal, they would have moved for a default to preclude dismissal and to prompt Mid-Century to make an appearance. The trial court, however, denied the motion to vacate, concluding that the Snohomish County clerk had complied with all of the requirements of CR 41(b)(2) in dismissing Vaughn's action, and that "a CR 41 dismissal cannot be set aside on a CR 60 motion".

Vaughn appealed the trial court's decision, claiming that a trial court does have authority to consider a party's CR 60(b) motion to vacate an order of dismissal entered pursuant to CR 41(b)(2). The Court of Appeals, Division One, agreed with Vaughn that trial courts have authority to vacate such dismissals. Vaughn v. Chung, 62 Wash.App. 647, 814 P.2d 1249 (1991). It was not persuaded by an earlier Court of Appeals, Division Two, case, Nicholson v. Ballard, 7 Wash.App. 230, 499 P.2d 212 (1972), that had reached the opposite conclusion. Accordingly, it reversed the trial court's decision and remanded the case so the trial court could exercise its discretion under CR 60(b). Chung sought review in this court. We now affirm the Court of Appeals.

II

The sole issue before us is whether a trial court has authority to consider a party's CR 60(b) motion to vacate an order of dismissal entered pursuant to CR 41(b)(2). CR 41(b)(2) provides in pertinent part:

(2) Dismissal on Clerk's Motion.

(A) Notice. In all civil cases wherein there has been no action of record during the 12 months just past, the clerk of the superior court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within 30 days following said mailing, action of record is made or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If such application is not made or good cause is not shown, the court shall dismiss each such case without prejudice. The cost of filing such order of dismissal with the clerk shall not be assessed against either party.

....

(C) Applicable date. This dismissal procedure is mandatory as to all cases filed after January 1, 1959, and permissive as to all cases filed before that date.

CR 41(b)(2)(A), (C). The primary function of an involuntary dismissal by a clerk's motion is to clear the clerk's record of inactive cases. 4 L. Orland, Wash.Prac., Rules Practice § 5502, at 243 (3d ed. 1983). It is an administrative provision that creates a "relatively simple means by which the court system itself, on its own volition, may purge its files of dormant cases." Miller v. Patterson, 45 Wash.App. 450, 455, 725 P.2d 1016 (1986). Protecting litigants from dilatory counsel is only a secondary purpose of CR 41(b)(2). ¹

A dismissal without prejudice is mandatory under CR 41(b)(2) only if three prerequisites are met:

1. The clerk must mail the required notice to the attorneys.

2. No action of record in the case during the preceding 12 months.

3. No action of record, and no showing of good cause for continuing the case, within 30 days following the notice.

Kirschner v. Worden Orchard Corp., 48 Wash.App. 506, 509, 739 P.2d 119 (1987) (quoting Miller v. Patterson, 45 Wash.App. 450, 455, 725 P.2d 1016 (1986)). Vaughn concedes that these requirements have all been met, and that the trial court properly dismissed her suit.

Vaughn contends, however, that the trial court erroneously concluded it did not have authority to vacate a dismissal under CR 60(b). The relevant portion of CR 60(b) provides:

(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;

CR 60(b). This court has described a proceeding before a trial court to vacate a default judgment as "equitable in character and relief is to be afforded in accordance with equitable principles." Griggs v. Averbeck Realty, Inc., 92 Wash.2d 576, 581, 599 P.2d 1289 (1979). In considering whether to grant a motion to vacate, a trial court "should exercise its authority 'liberally, as well as equitably, to the end that substantial rights be preserved and justice between the parties be fairly and judiciously done.' " Griggs, 92 Wash.2d at 582, 599 P.2d 1289, (quoting White v. Holm, 73 Wash.2d 348, 351, 438 P.2d 581 (1968)). Neither CR 41(b)(2) nor CR 60(b) expressly states whether vacating a dismissal for want of prosecution is appropriate.

The only previous Washington case addressing the issue in this case is Nicholson v. Ballard, 7 Wash.App. 230, 499 P.2d 212 (1972). In Nicholson, the trial court mailed a notice indicating the case would be dismissed for want of prosecution to the plaintiff's attorney of record pursuant to CR 41(b)(2). After 30 days had passed with no response, the court mailed a notice of dismissal. Thereafter, the plaintiff filed a motion to vacate the order of dismissal, pursuant to CR 60(b). Plaintiff claimed his case file had been turned over to another attorney in the same office, and the clerk's notice did not come to the attention of that attorney. The trial court granted the motion to vacate. The Court of Appeals, however, reversed, concluding that a trial court does not have authority under CR 60 to vacate an order of dismissal entered pursuant to CR 41. It wrote:

We are unable to accept plaintiff's contention that while dismissal is mandatory under CR 41, the trial court possesses the discretion to vacate the order of dismissal under CR 60. Such a result would completely nullify the explicit, mandatory language of CR 41. Consequently, we conclude that once an order of dismissal is entered pursuant to CR 41, it cannot be vacated under CR 60.

Nicholson, 7...