Filed Washington State Court of Appeals Division Two
February 14, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II DONALD SPEAR, a resident of the State of Florida, No. 56740-7-II
Appellant,
v. UNPUBLISHED OPINION KRAFTWERK K9, INC., a corporation formed under the laws of the State of Washington; and WAYNE G. CURRY, a resident of the State of Washington,
Respondent.
PRICE, J. — Donald Spear appeals the superior court’s order granting Wayne Curry’s
motion to vacate the default judgment entered against him. Spear argues the superior court abused
its discretion because Curry did not establish the required factors for vacating a default judgment.
We affirm the superior court.
FACTS
On April 26, 2021, Spear filed a complaint for damages against Kraftwerk K9, Inc. and
Curry. In his complaint, Spear, a dog breeder, stated that he had been doing business with Curry,
another dog breeder, through Curry’s business Kraftwerk K9 for more than 20 years. In November
2019, Spear purchased a dog from Curry. Spear made plans to breed the dog, but was unable to
do so successfully. Further examination revealed severe deformities in the dog’s spine, cervix,
and vagina that required euthanasia. Spear alleged multiple claims related to breach of contract
and sought actual and expectation damages. No. 56740-7-II
Curry was served with the summons and complaint on May 17, 2021. After receiving the
summons and complaint, Curry retained attorney Christopher Brown to represent him. Although
Brown did not engage in litigation services, he agreed to pursue an alternative course of action to
attempt to resolve the dispute. Brown agreed to send Spear a letter outlining the arguments in
defense of the claims with the intent to settle the dispute. However, Brown informed Curry that
he would not engage in litigation services and would withdraw and refer Curry to alternate counsel
if the matter continued to ligation. On June 9, Brown sent a letter to Spear’s counsel disputing the
claims raised in Spear’s complaint and setting out the arguments in support of Curry’s position.
On June 14, 2021, Spear obtained an order of default against Curry. Then, on June 29,
Spear obtained a default judgment against Curry for $76,780.61.
About two weeks later, on July 14, Curry learned of the default judgment while meeting
with a different attorney, Garrett Ratfield, on an unrelated matter. On July 28, Ratfield filed a
notice of appearance in the dispute with Spear. Then, on September 16, Ratfield filed a motion to
vacate the default judgment. In his declaration, Curry claimed he was “shocked” to learn of the
default judgment because he believed Brown was representing him. Clerk’s Papers at 132.
In opposition to the motion, Spear obtained a declaration from Curry’s former attorney,
Brown. Brown stated that after Spear filed a motion for default, he contacted Curry to withdraw.
Brown also sent Curry referrals for alternate counsel.
Spear argued that the motion to vacate should be denied because Curry failed to establish
excusable neglect. Spear also argued that Curry failed to act with due diligence in seeking to
vacate the default judgment. Finally, Spear argued that Curry failed to establish a prima facie
2 No. 56740-7-II
defense to the complaint because the arguments they made were based on an alleged contract that
was not sent to or signed by Spear.
The superior court found that, given that the order of default was signed only two months
after the complaint was served, Curry acted with due diligence and there was no substantial
hardship to Spear. The superior court also found excusable neglect because Brown was not clear
about the risk of default and the need to attend to litigation immediately. Finally, the superior
court found that, viewing the evidence in a light most favorable to Curry, he had established a
prima facie defense because both parties were relying on the same allegedly unsigned or draft
contract language to make their arguments. The superior court granted Curry’s motion to vacate
the default judgment.
Spear appeals.
ANALYSIS
I. MOTION TO VACATE DEFAULT JUDGMENT
We review the superior court’s decision to set aside a default judgment for an abuse of
discretion. Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007). “A [superior] court abuses
its discretion by making a decision that is manifestly unreasonable or by basing its decision on
untenable grounds or untenable reasons.” VanderStoep v. Guthrie, 200 Wn. App. 507, 518, 402
P.3d 883 (2017), review denied, 189 Wn.2d 1041 (2018). “[W]e are more likely to find an abuse
of discretion when the [superior] court denies a motion to set aside a default judgment than when
the [superior] court grants such a motion.” Id. “[D]efault judgments generally are disfavored
because courts prefer to resolve cases on their merits.” Id. at 517.
3 No. 56740-7-II
CR 60(b)(1) provides for relief from a judgment for “[m]istakes, inadvertence, surprise,
excusable neglect or irregularity in obtaining a judgment or order.” Courts apply a four-prong test
to determine if a default judgment should be vacated under CR 60(b)(1):
(1) that there is substantial evidence supporting a prima facie defense; (2) that the failure to timely appear and answer was due to mistake, inadvertence, surprise, or excusable neglect; (3) that the defendant acted with due diligence after notice of the default judgment; and (4) that the plaintiff will not suffer a substantial hardship if the default judgment is vacated.
Little, 160 Wn.2d at 703-04. The first two factors are the primary considerations in whether to set
aside a default judgment. Id. at 704.
Whether to set aside a default judgment is ultimately a matter of equity. Id. “Our primary
concern is whether justice is being done.” VanderStoep, 200 Wn. App. at 517. We must determine
whether the superior court’s decision is ultimately just and equitable. Id. “What is just and
equitable must be determined based on the specific facts of each case, not based on a fixed rule.”
Id. at 517-18.
Spear concedes that the fourth factor is satisfied, but argues that the superior court erred by
finding that Curry satisfied the other three factors of the test.
A. PRIMA FACIE DEFENSE
First, Spear argues that Curry failed to produce substantial evidence supporting a prima
facie defense because he did not support his alleged defense with evidence. To support a motion
to vacate a default judgment, “a defendant generally must submit affidavits identifying specific
facts that support a prima facie defense.” Id. at 519. “The defendant must present ‘concrete facts’
that support a defense.” Id. (quoting Ha v. Signal Elec., Inc., 182 Wn. App. 436, 449, 332 P.3d
991 (2014), review denied, 182 Wn.2d 1006 (2015)).
4 No. 56740-7-II
However, the superior court views all facts and reasonable inferences in the light most
favorable to the defendant. Id. at 519-20. Any set of facts that, if believed, would entitle the
defendant to relief can support setting aside a default judgment. Id. at 520. “[E]ven a ‘tenuous’
defense may be sufficient to support a motion to vacate.” Id. (internal quotation marks omitted)
(quoting Little, 160 Wn.2d at 711).
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Filed Washington State Court of Appeals Division Two
February 14, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II DONALD SPEAR, a resident of the State of Florida, No. 56740-7-II
Appellant,
v. UNPUBLISHED OPINION KRAFTWERK K9, INC., a corporation formed under the laws of the State of Washington; and WAYNE G. CURRY, a resident of the State of Washington,
Respondent.
PRICE, J. — Donald Spear appeals the superior court’s order granting Wayne Curry’s
motion to vacate the default judgment entered against him. Spear argues the superior court abused
its discretion because Curry did not establish the required factors for vacating a default judgment.
We affirm the superior court.
FACTS
On April 26, 2021, Spear filed a complaint for damages against Kraftwerk K9, Inc. and
Curry. In his complaint, Spear, a dog breeder, stated that he had been doing business with Curry,
another dog breeder, through Curry’s business Kraftwerk K9 for more than 20 years. In November
2019, Spear purchased a dog from Curry. Spear made plans to breed the dog, but was unable to
do so successfully. Further examination revealed severe deformities in the dog’s spine, cervix,
and vagina that required euthanasia. Spear alleged multiple claims related to breach of contract
and sought actual and expectation damages. No. 56740-7-II
Curry was served with the summons and complaint on May 17, 2021. After receiving the
summons and complaint, Curry retained attorney Christopher Brown to represent him. Although
Brown did not engage in litigation services, he agreed to pursue an alternative course of action to
attempt to resolve the dispute. Brown agreed to send Spear a letter outlining the arguments in
defense of the claims with the intent to settle the dispute. However, Brown informed Curry that
he would not engage in litigation services and would withdraw and refer Curry to alternate counsel
if the matter continued to ligation. On June 9, Brown sent a letter to Spear’s counsel disputing the
claims raised in Spear’s complaint and setting out the arguments in support of Curry’s position.
On June 14, 2021, Spear obtained an order of default against Curry. Then, on June 29,
Spear obtained a default judgment against Curry for $76,780.61.
About two weeks later, on July 14, Curry learned of the default judgment while meeting
with a different attorney, Garrett Ratfield, on an unrelated matter. On July 28, Ratfield filed a
notice of appearance in the dispute with Spear. Then, on September 16, Ratfield filed a motion to
vacate the default judgment. In his declaration, Curry claimed he was “shocked” to learn of the
default judgment because he believed Brown was representing him. Clerk’s Papers at 132.
In opposition to the motion, Spear obtained a declaration from Curry’s former attorney,
Brown. Brown stated that after Spear filed a motion for default, he contacted Curry to withdraw.
Brown also sent Curry referrals for alternate counsel.
Spear argued that the motion to vacate should be denied because Curry failed to establish
excusable neglect. Spear also argued that Curry failed to act with due diligence in seeking to
vacate the default judgment. Finally, Spear argued that Curry failed to establish a prima facie
2 No. 56740-7-II
defense to the complaint because the arguments they made were based on an alleged contract that
was not sent to or signed by Spear.
The superior court found that, given that the order of default was signed only two months
after the complaint was served, Curry acted with due diligence and there was no substantial
hardship to Spear. The superior court also found excusable neglect because Brown was not clear
about the risk of default and the need to attend to litigation immediately. Finally, the superior
court found that, viewing the evidence in a light most favorable to Curry, he had established a
prima facie defense because both parties were relying on the same allegedly unsigned or draft
contract language to make their arguments. The superior court granted Curry’s motion to vacate
the default judgment.
Spear appeals.
ANALYSIS
I. MOTION TO VACATE DEFAULT JUDGMENT
We review the superior court’s decision to set aside a default judgment for an abuse of
discretion. Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007). “A [superior] court abuses
its discretion by making a decision that is manifestly unreasonable or by basing its decision on
untenable grounds or untenable reasons.” VanderStoep v. Guthrie, 200 Wn. App. 507, 518, 402
P.3d 883 (2017), review denied, 189 Wn.2d 1041 (2018). “[W]e are more likely to find an abuse
of discretion when the [superior] court denies a motion to set aside a default judgment than when
the [superior] court grants such a motion.” Id. “[D]efault judgments generally are disfavored
because courts prefer to resolve cases on their merits.” Id. at 517.
3 No. 56740-7-II
CR 60(b)(1) provides for relief from a judgment for “[m]istakes, inadvertence, surprise,
excusable neglect or irregularity in obtaining a judgment or order.” Courts apply a four-prong test
to determine if a default judgment should be vacated under CR 60(b)(1):
(1) that there is substantial evidence supporting a prima facie defense; (2) that the failure to timely appear and answer was due to mistake, inadvertence, surprise, or excusable neglect; (3) that the defendant acted with due diligence after notice of the default judgment; and (4) that the plaintiff will not suffer a substantial hardship if the default judgment is vacated.
Little, 160 Wn.2d at 703-04. The first two factors are the primary considerations in whether to set
aside a default judgment. Id. at 704.
Whether to set aside a default judgment is ultimately a matter of equity. Id. “Our primary
concern is whether justice is being done.” VanderStoep, 200 Wn. App. at 517. We must determine
whether the superior court’s decision is ultimately just and equitable. Id. “What is just and
equitable must be determined based on the specific facts of each case, not based on a fixed rule.”
Id. at 517-18.
Spear concedes that the fourth factor is satisfied, but argues that the superior court erred by
finding that Curry satisfied the other three factors of the test.
A. PRIMA FACIE DEFENSE
First, Spear argues that Curry failed to produce substantial evidence supporting a prima
facie defense because he did not support his alleged defense with evidence. To support a motion
to vacate a default judgment, “a defendant generally must submit affidavits identifying specific
facts that support a prima facie defense.” Id. at 519. “The defendant must present ‘concrete facts’
that support a defense.” Id. (quoting Ha v. Signal Elec., Inc., 182 Wn. App. 436, 449, 332 P.3d
991 (2014), review denied, 182 Wn.2d 1006 (2015)).
4 No. 56740-7-II
However, the superior court views all facts and reasonable inferences in the light most
favorable to the defendant. Id. at 519-20. Any set of facts that, if believed, would entitle the
defendant to relief can support setting aside a default judgment. Id. at 520. “[E]ven a ‘tenuous’
defense may be sufficient to support a motion to vacate.” Id. (internal quotation marks omitted)
(quoting Little, 160 Wn.2d at 711).
Here, Curry’s affidavit did not specifically deny any of the allegations made in Spear’s
complaint. However, Curry provided the letter from Brown which explained why he disputed the
claims made in the complaint based on the communications between the parties and the terms of
the alleged contract. Viewed in the light most favorable to Curry, the alleged contract and dispute
regarding what representations were made are concrete facts that could entitle Curry to relief.
Therefore, the superior court did not abuse its discretion in determining that Curry established a
prima facie defense.
B. EXCUSABLE NEGLECT
Second, Spear argues that Curry has failed to establish excusable neglect because Curry
hired an attorney who did not engage in litigation.
The superior court has broad discretion in determining whether the failure to appear
resulted from excusable neglect. Id. at 526. The superior court may make credibility
determinations or weigh evidence to determine whether there has been excusable neglect. Id.
Here, the superior court determined there was excusable neglect because Brown did not
make it clear to Curry that he needed to address the complaint through litigation at the same time
that Brown would send a letter to attempt to resolve the disagreement outside of litigation. Even
in Brown’s declaration he stated that he informed Curry that if the case continued to litigation, he
5 No. 56740-7-II
would withdraw. This could have implied to Curry that the case was not yet in litigation and
engaging Brown’s services was sufficient to adequately defend against the complaint. The
superior court did not abuse its discretion when it found Curry’s claim that he believed engaging
Brown was sufficient to represent him in the dispute.
C. DUE DILIGENCE
Third, Spear argues that Curry failed to act with due diligence because he did not file the
motion to vacate the default judgment until almost three months after the default judgment was
entered and two months after his new attorney filed his notice of appearance.
“A motion to vacate under CR 60(b)(1) must be filed within a reasonable time and within
one year from the judgment.” Ha, 182 Wn. App. at 454. Courts have held that one month is within
a reasonable time while three months is not within a reasonable time. Id. In Ha, the court held
that two and a half months was a reasonable amount of time because an investigation was
conducted during that period and the plaintiff actually requested that the motion to vacate be
delayed in order to conduct a deposition. Id. at 454-55.
Here, the two months between Ratfield filing a notice of appearance and filing a motion to
vacate is less than the three months courts have determined is outside a reasonable time to file a
motion to vacate a default judgment. And the superior court’s decision facilitates the decision of
this case on the merits rather than by default judgment. See VanderStoep, 200 Wn. App. at 517.
Under these circumstances, the superior court did not abuse its discretion by determining that
Curry acted with due diligence when vacating the default judgment.
6 No. 56740-7-II
II. ATTORNEY FEES
Curry requests that we award him attorney fees under RAP 18.9 because this appeal is
frivolous and because Spear engaged in unconscionable conduct in obtaining his default judgment
when he understood that Curry was contesting the allegations. We deny Curry’s request for
attorney fees.
RAP 18.9(a) allows us to impose sanctions against a party for filing a frivolous appeal.
“An appeal is frivolous when the appeal presents no debatable issues on which reasonable minds
could differ and is so lacking in merit that there is no possibility of reversal.” Stiles v. Kearney,
168 Wn. App. 250, 267, 277 P.3d 9, review denied, 175 Wn.2d 1016 (2012).
Here, although the superior court’s order should be affirmed, Spear’s arguments are not so
devoid of merit that this appeal is frivolous. Further, we are unable to conclude that Spear obtained
the default judgment through unconscionable conduct. While we do not condone attorneys
obtaining default judgments without notice to opposing parties when there has been
communication on behalf of a client, our record is simply not sufficiently developed on this issue
for us to find improper conduct by Spear. Accordingly, we deny Curry’s request for attorney fees
under RAP 18.9.
7 No. 56740-7-II
CONCLUSION
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J. We concur:
CRUSER, A.C.J.
CHE, J.