Friebe v. Supancheck

992 P.2d 1014, 98 Wash. App. 260
CourtCourt of Appeals of Washington
DecidedMarch 1, 1999
DocketNo. 42003-8-I
StatusPublished
Cited by22 cases

This text of 992 P.2d 1014 (Friebe v. Supancheck) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friebe v. Supancheck, 992 P.2d 1014, 98 Wash. App. 260 (Wash. Ct. App. 1999).

Opinion

Webster, J.

The Appellants Harold Friebe Sr. and Harold Friebe entered into a purchase and sale agreement with the Respondents James and Kristen Supancheck for the purchase of the Supanchecks’ real property that generated three rents. After the deal fell apart because one of the apartments was an illegal use, the Friebes sued the Supanchecks for breach of contract, misrepresentation, and violation of the Consumer Protection Act (CPA).

Despite being properly served, the Supanchecks did not appear in the action because they mistakenly believed their realtor’s attorney would represent them. The Friebes obtained a default judgment against the Supanchecks. Over a year later, the Supanchecks moved for relief from the judgment, which the trial court granted under CR 60(b)(11) and Caouette v. Martinez, 71 Wn. App. 69, 856 P.2d 725 (1993). The trial court subsequently granted the Supanchecks’ motion for summary judgment on all claims.

[263]*263The Friebes appeal the vacation of the default judgment and the summary judgment in favor of the Supanchecks. The Supanchecks cross appeal, challenging: (1) the amount of the award of attorney fees to the Friebes as terms on the vacation of the judgment; and (2) the amount of attorney fees awarded to the Supanchecks as prevailing parties on summary judgment. Because we find no extraordinary circumstances justifying a vacation of the default judgment under CR 60(b) (11), we vacate the summary judgment, reverse the vacation of the default judgment, and reinstate in full the default judgment in favor of the Friebes.

I. BACKGROUND

The Friebes were prospective purchasers of a rental property owned by the Supanchecks. The property consisted of three units from which three rents were collected. The Supanchecks listed the property with their real estate agent Sid Pederson of George Johnson Realty. The listing described the property as “2 two-bedroom units with large 2 br mother-in-law.” Clerk’s Papers (CP) at 38. The “Metroscan” report described the property as a triplex.

On December 21, 1992, the Friebes and the Supanchecks entered into a real estate purchase and sale agreement. Before closing, the Friebes received and reviewed the Certificate of Land Use and Local Assessments which showed that the land was zoned for single-family residential use and that the last permitted construction on the property was a duplex. Because the Friebes viewed the third unit as illegal and the Supanchecks did not obtain a variance or lower the price, the deal never closed.

On August 30, 1995, the Friebes sued the Supanchecks, Sid Pederson, and George Johnson Realty for breach of contract, misrepresentation, and violation of the Washington CPA. The Supanchecks were served at their residence in California on September 7, 1995.

After being served, the Supanchecks contacted Pederson to investigate why they had been sued. The Supanchecks [264]*264claim that Pederson told them that the attorney appearing for Pederson and the realtor would also appear for the Supanchecks and represent them in the matter. Although the Supanchecks remained under the assumption that they were represented in the action, the attorney representing Pederson and George Johnson Realty did not appear for the Supanchecks. No one appeared for the Supanchecks.

The Supanchecks received a copy of a Release and Settlement Agreement between the Friebes and the real estate agent and realtor. The Supanchecks assumed the agreement released the claims against them.

The court entered a default judgment against the Supanchecks on March 18, 1996. The default judgment included the principal amount of $36,723, attorney fees in the amount of $5,000, and costs in the amount of $117.45. The Supanchecks did not know of the default judgment until March 20, 1997, when they received notice of garnishment proceedings against them in California. On April 1, 1997, they moved to set aside the default and judgment. On April 3, 1997, the trial court vacated the default judgment as to the amount of damages only. The Court made the following findings:

1. Good cause exists for setting aside the default order and judgment under CR 60(b)(ll);

2. Defendants Supancheck have alleged a meritorious defense to the plaintiff’s [sic] claim;

3. Defendants Supancheck acted with due diligence after notice of entry of the default judgment against them; and,

4. Plaintiffs will not suffer substantial hardship if the default judgment is set aside and defendants Supancheck are permitted to enter a defense in this action.

CP at 97. The court struck a proposed finding that “ [defendants Supancheck’s [sic] failure to appear and answer was due to excusable neglect.” CP at 97. The court also ordered that the Friebes would recover their fees in responding to the motion to vacate. Subsequently, the court [265]*265set this award amount at $3,500. This amount represented an increase from the $3,468 requested.

On May 14, 1997, the trial court vacated the judgment as to liability. The court stated:

IT IS HEREBY ORDERED that under CR 60(b)(11) and Caouette v. Martinez, 71 Wn. App. 69, 856 P.2d 725 (1993), a default order as well as a judgment may be vacated if “. . . based upon incomplete, incorrect or conclusory factual information.” This permits the court, if meritorious defenses are alleged, to vacate the default order establishing liability. Although no facts or law support a defense of election of remedies/rescission, there may be a meritorious defense to the misrepresentation cause of action.

CP at 144.

On November 21, 1997, the trial court granted the Sup an checks’ motion for summary judgment on all claims. The purchase and sale agreement provides that the prevailing party on any suit arising out of the agreement is entitled to court costs and reasonable attorney fees. On December 17, 1997, the court awarded the Supanchecks reasonable attorney fees in the amount of $12,500. This award was reduced from the $19,359.37 requested.

II. RELIEF FROM JUDGMENT UNDER CR 60(b)

“Default judgments are not favored in the law.” Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979). Controversies are better decided on the merits rather than by default. See id. Weighing against this principle is the need for a structured, orderly judicial system. See id. “A proceeding to vacate a default judgment is equitable in character and relief is to be afforded in accordance with equitable principles.” Id. The fundamental guiding principle is to do justice. See id. at 582.

Relief from a default judgment is governed by these equitable principles, but the grounds and procedures for vacating a judgment are provided in CR 60. See id. CR 60(b) provides, in part:

[266]*266Mistakes; 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:

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Friebe v. Supancheck
992 P.2d 1014 (Court of Appeals of Washington, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
992 P.2d 1014, 98 Wash. App. 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friebe-v-supancheck-washctapp-1999.