Mary Jayne Wiles, V. Angela Terek

• Court: Court of Appeals of Washington
• Decided: September 26, 2022
• Docket: 83015-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARY JAYNE WILES, No. 83015-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ANGELA TEREK,

Appellant.

DÍAZ, J. — Mary Wiles sued Angela Terek for conversion. After Terek failed to

answer the complaint, the trial court entered an order of default and default judgment

against Terek. Terek moved to vacate the default order and judgment, which the trial

court denied. She appeals the denial of her motion. Finding no error, we affirm.

I. FACTS

In July 2018, Wiles and Terek’s father entered into a settlement agreement

involving a rental property dispute. This agreement acknowledged that Wiles furnished

the rental home with her personal property and had the sole right, title, and interest to all

said property. It provided that Wiles would be entitled to enter the home to retrieve her

personal property and Terek’s father would not remove, destroy or allow to be removed

any such personal property in the home. The agreement was binding on their heirs,

representatives, and successors.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83015-5-I/2

After Terek’s father died on February 5, 2020, Terek refused to give Wiles access

to the rental home to retrieve her personal property. Later that month, Wiles filed a

summons and a complaint alleging that Terek converted her personal property. She

sought damages, requested a preliminary injunction, and obtained a temporary

restraining order (TRO) forbidding Terek from selling or disposing of the disputed items.

Terek appeared through counsel at a March 2020 show cause hearing and

opposed an extension of the TRO, alleging that her father had reimbursed Wiles for the

personal property. The trial court extended the TRO. No further action ensued until June

2020, when Terek’s counsel stopped representing her in this matter and she began

defending herself pro se. 1 Neither Terek nor her former counsel had filed an answer to

the complaint.

Five months later, in November 2020, Wiles mailed Terek notice and moved the

trial court for an order of default, default judgment, and attorney fees pursuant to RCW

4.84.185. Terek did not respond and the trial court granted the motion.

In December 2020, in a separate matter, Terek’s counsel told Wiles that she was

unavailable. Nevertheless, Wiles moved to establish the amount of attorney fees in this

matter. At a January 2021 fee hearing, Wiles alerted the trial court that Terek may be

unavailable or attempting to avoid service. The trial court awarded Wiles attorney fees in

the amount of $10,650.00.

Thereafter, Terek’s former counsel entered a limited notice of appearance on her

behalf and filed two ex parte emergency motions to stay or set aside default—the first

1 Terek’s counsel continued to represent her in two other related but separate

matters.

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one of which was denied. The second motion included a declaration from Terek saying

she had been out of Washington since November 11, 2020 for health reasons, had not

received “any mail or notification of a court hearing,” and planned to return to Washington

on January 20, 2021. The trial court denied the motion as to Wiles’s ability to recover her

personal property through a writ of execution, but stayed enforcement of the monetary

judgment.

In February 2021, eight months after Terek’s counsel originally withdrew, Terek

filed her answer to the complaint and moved to vacate the order of default and default

judgment, which was denied.

II. ANALYSIS

Terek appeals from the order denying her motion to vacate and claims the trial

court abused its discretion in so ruling. 2 We disagree.

A. Standard of Review

We review a trial court’s decision on a motion to vacate under CR 60 for an abuse

of discretion. Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007). A trial court

abuses its discretion only when its decision is manifestly unreasonable or is based on

untenable grounds or untenable reasons. In re Marriage of Tang, 57 Wn. App. 648, 653,

789 P.2d 118 (1990).

2 Though Terek contends that the trial court improperly granted Wiles’s motion for

default, we decline the implied invitation to review that decision. The procedure to challenge an allegedly defective judgment is by appeal from the judgment, not by appeal from a denial of a CR 60 motion. Bjurstrom v. Campbell, 27 Wn. App. 449, 451, 618 P.2d 533 (1980). Terek also assigns error to the trial court’s decision to award attorney fees under RCW 4.84.185. However, she does not present any argument to support this claim, so we will not review it on appeal. RAP 10.3(a)(6); Hollis v. Garwall, Inc., 137 Wn.2d 683, 689 n.4, 974 P.2d 836 (1999).

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B. “Vacatur” Under CR 55(c)(1)

Terek first asserts the trial court should have vacated the order of default pursuant

to CR 55(c)(1) because she had good cause for not timely filing her answer. Given that

her counsel had appeared and defended against the TRO, Terek says she “reasonably

believed she had appeared, answered, and defended” against Wiles’s claims. But CR

55(c)(1) is inapplicable here.

While this rule allows a trial court to set aside a default order “[f]or good cause

shown and upon such terms as the court deems just,” a party seeking this relief must do

so prior to the entry of judgment. CR 55(c)(1). After “a judgment by default has been

entered, [the court] may likewise set it aside in accordance with rule 60(b).” CR 55(c)(1)

(emphasis added). Here, the trial court entered default judgment against Terek in

December 2020 and Terek moved to set aside the order of default in January 2021 and

asked that it be vacated under CR 55(c)(1) in February 2021. Because the proper method

for Terek to challenge the default order was governed by CR 60(b), the trial court did not

abuse its discretion by denying her request for vacatur on this ground.

C. Vacatur of the Default Order and Default Judgment

CR 60(b) instructs that a “court may relieve a party . . . from a final judgment, order,

or proceeding” on 11 grounds. Terek argues she was entitled to vacatur on three

grounds. We address them each in turn.

1. Mistakes and Excusable Neglect

Terek relies on CR 60(b)(1), which authorizes a trial court to vacate an order or

judgment due to “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in

obtaining a judgment or order.” She claims she mistakenly believed “her former attorney

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had responded to the lawsuit on her behalf” and it was excusable for her to believe all

necessary pleadings had been filed.

The party seeking to vacate a default judgment under CR 60(b)(1) bears the

burden of showing (1) substantial evidence to support a prima facie defense; (2) the

failure to timely appear in the action and answer the complaint was due to mistake,

inadvertence, surprise, or excusable neglect; (3) the moving party acted with due

diligence after notice of the entry of default; and (4) the opposing party will not suffer

substantial hardship if the trial court vacates the default. White v. Holm, 73 Wn.2d 348,

352, 438 P.2d 581 (1968). While the first and second factors are primary and the third

and fourth are secondary, Id. at 352-53, all four factors are interdependent such that the

strength of the showing on any one factor affects the showing needed on the others.

Norton v. Brown, 99 Wn. App. 118, 124, 992 P.2d 1019 (1999).

If the moving party lacks a prima facie defense, the trial court will deny the motion

to avoid a subsequent useless trial. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 583,

599 P.2d 1289 (1979). A defendant demonstrates a prima facie defense by producing

evidence that if later believed by the trier of fact, constitutes a defense to the claims

presented. TMT Bear Creek Shopping Ctr., Inc. v. Petco Animal Supplies, Inc., 140 Wn.

App. 191, 202, 165 P.3d 1271 (2007). Therefore, affidavits supporting motions to vacate

default judgments must set out the facts constituting a defense and cannot merely state

allegations and conclusions. Ha v. Signal Elec., Inc., 182 Wn. App. 436, 449, 332 P.3d

991 (2014).

In this case, Wiles sued Terek for conversion. “Conversion is the unjustified, willful

interference with a chattel which deprives a person entitled to the property of possession.”

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Meyers Way Dev. Ltd. P’ship v. Univ. Sav. Bank, 80 Wn. App. 655, 674-75, 910 P.2d

1308 (1996). “[T]o maintain a conversion action, the plaintiff need only establish ‘some

property interest in the goods allegedly converted.’” Id. at 675 (quoting Michel v. Melgren,

70 Wn. App. 373, 376, 853 P.2d 940 (1993)). Although Terek asserted at the March 2020

TRO hearing that her father had reimbursed Wiles for the personal property at issue, her

affidavit in support of her February 2021 motion to vacate offered no defense whatsoever

to the conversion claim. Concluding that Terek presented insufficient evidence of a prima

facie defense was a proper exercise of the trial court’s discretion because it was based

on tenable grounds and reasons. The trial court did not err in denying vacatur on this

ground. 3

2. Fraud

Terek alleges Wiles obtained default judgment by fraud. CR 60(b)(4) provides for

the vacation of a judgment for fraud, misrepresentation, or other conduct of an adverse

party. “[T]he fraudulent conduct or misrepresentation must cause the entry of the

judgment such that the losing party was prevented from fully and fairly presenting its case

or defense.” Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990). On

review, we look to determine whether the evidence shows that fraud, misrepresentation,

3 Additionally, the trial court found Terek had ample time to file an answer to the

complaint—approximately 10 months, including several of which she was represented by counsel—but failed to do so. While we are mindful of the difficulties Terek may have faced in proceeding pro se, in Washington, courts “must hold pro se parties to the same standards to which it holds attorneys.” Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187 (2010). The court also found vacatur would have prejudiced Wiles given the “[c]onsiderable time and expense . . . incurred . . . in having to establish her burden of proof and rebut the misrepresentations made by [Terek] and her counsel.”

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or misconduct was “highly probable.” Dalton v. State, 130 Wn. App. 653, 666, 124 P.3d

305 (2005).

Terek implies that once she left the country for health reasons, Wiles somehow

was aware of this fact and pounced on the opportunity to file a motion for default. But

Terek points to nothing in the voluminous record to support such conduct. Terek also

states, upon noticing that she had not responded to the motion for default, Wiles should

have reached out to Terek’s former counsel and cease taking any further action. But

Terek notes this was “not required” and only “a common professional courtesy.” Absent

evidence that Wiles obtained default judgment by fraud or misconduct, Terek’s request

for relief on this ground fails.

3. Other Reasons

Finally, Terek contends that there are “other reasons justifying relief” from the order

of default and default judgment. CR 60(b)(11) allows the trial court to vacate for “[a]ny

other reason justifying relief from the operation of the judgment.” Courts utilize this rule

only “to serve the ends of justice in extreme, unexpected situations.” In re Det. of Ward,

125 Wn. App. 374, 379, 104 P.3d 751 (2005). Terek’s motion to vacate mentioned CR

60(b)(11) but pointed to her status as a pro se litigant and how she did not receive notice

due to her being out of the country. There was no justification for not filing an answer in

nearly 10 months. Because she failed to establish any extraordinary circumstances

requiring vacation of the order and judgment, the trial court did not abuse its discretion in

denying her motion.

//

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D. Attorney Fees on Appeal

Terek requests an award of attorney fees and costs as the substantially prevailing

party on appeal pursuant only to RAP 14.1 through 14.6. But because she is not the

prevailing party on review, her request is denied.

Wiles also seeks an award of attorney fees and costs on appeal under RAP 18.9,

for defending a frivolous appeal, and based on a provision of the 2018 settlement

agreement between her and Terek’s father, which expressly was intended to bind his

heirs and successors to the property in question.

An appeal is frivolous when it presents no debatable issues and is so devoid of

merit that there is no reasonable possibility of reversal. Streater v. White, 26 Wn. App.

430, 434, 613 P.2d 187 (1980). We do not view Terek’s appeal as frivolous, as her

arguments are cogent, even if unavailing. Thus, Wiles’s request for attorney fees on this

ground is denied.

At paragraph 8, the settlement agreement provides:

Should any litigation be commenced between the Parties hereto related to this Agreement, the party prevailing in such litigation shall be entitled, in addition to other relief granted, to reasonable attorneys’ fees and court costs.

Wiles attached the settlement agreement to her complaint and made Terek aware

of the provision confirming Wiles’s ownership of the personal property at issue. This

provision is not only “related to this Agreement,” but in fact arises out of and is central to

the dispute. Edmonds v. John L. Scott Real Estate, Inc., 87 Wn. App. 834, 855, 942 P.2d

1072 (1997) (holding that an action is “on a contract” if it arises out of the contract and

the contract is central to the dispute). Thus we deem Wiles’s conversion claim to be, in

essence, an action to enforce the terms of the settlement agreement. And, as Wiles is

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the prevailing party here, she is entitled to reasonable attorney fees on appeal subject to

compliance with RAP 18.1.

We affirm.

WE CONCUR:

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