Mdb Landmark Llc, V. William Washington

• Court: Court of Appeals of Washington
• Decided: July 15, 2024
• Docket: 84855-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MDB LANDMARK LLC, No. 84855-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION WILLIAM WASHINGTON,

Appellant.

BIRK, J. — William Washington appeals an order granting MDB Landmark

LLC’s motion to find him in default and an order denying Washington’s motion to

vacate that default order. Because he provides no basis for relief, we affirm.

I

On October 14, 2022, MDB’s attorney signed a complaint, alleging it owned

a commercial property, Washington was a tenant of that property, and he failed to

pay rent and other lease charges for months before vacating the premises. MDB

requested a judgment against Washington and an award of attorney fees and

costs. On October 17, 2022, MDB’s attorney signed a summons.

The same day, MDB’s attorney signed a letter addressed to Washington,

informing him that he has been served with a lawsuit but it had not been filed in

court yet. MDB requested a settlement offer within seven days of service of the

lawsuit to resolve the dispute “without going through the court.” In the absence of

progress toward reaching a settlement, MDB would proceed with filing the lawsuit No. 84855-1-I/2

with the court. If Washington did not timely respond, MDB would file the lawsuit

and seek a default judgment. MDB cautioned Washington to “[r]eview closely the

deadline in your summons.” On October 20, 2022, MDB caused the letter,

complaint, and summons to be served on Washington.

On November 10, 2022, the day after the 20 day deadline for Washington

to answer the complaint, MDB filed the complaint, summons, a motion for default,

and a calendar notice for the motion, and requested a hearing date for November

28, 2022. In its declaration in support of its motion, MDB stated, “No one has

answered for defendant William Washington. Defendant has emailed me, so we

are giving him notice of this motion by email and emailing him the pleadings.” MDB

timely served the motion on Washington via U.S. Mail. The same day, MDB

asserts, it received a letter in which Washington stated he received MDB’s October

17, 2022 letter. Washington requested from MDB the amount he allegedly owed

and any ledger or itemized account statement MDB relied on to support its claim.

In an e-mail exchange on November 11, 2022, MDB told Washington they

would “stay the lawsuit” if he came current with back rent and stayed current until

the space was filled. Washington replied, “[W]e are certainly not in a position to

come current or continue paying the lease which is why we are at this point in the

first place,” and asked for a current balance. MDB noted the current balance owed

at that time was “roughly 21,000.” On November 12, 2022, Washington offered

$10,500 to be paid over 120 days to settle the matter, which MDB rejected two

days later. Washington did not respond to the motion for default. On November

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23, 2022, the superior court granted MDB’s motion for an order of default against

Washington.

On November 28, 2022, Washington moved to vacate the default order.

Washington argued he did not believe there was a deadline to submit an answer

or formally appear until after negotiations broke down and the superior court

improperly signed an order granting a default judgment five days before the

hearing was scheduled. MDB opposed Washington’s motion, arguing it never

received a settlement offer within seven days after service of the lawsuit,

Washington’s offer came after receiving MDB’s motion for default, Washington

never asked for a continuance of the motion, and Washington never filed or served

an answer.

On December 13, 2022, the superior court signed an order denying

Washington’s motion to vacate the default order finding, “Defendant has not shown

good cause under CR 55(c).” The order was filed the following day. On December

27, 2022, MDB filed a motion for entry of judgment and for attorney’s fees and

costs. Washington appeals.

II

A

We begin by identifying what orders and arguments are properly before us.

Washington’s notice of appeal designates the November 23, 2022 order

granting MDB’s motion for order of default. He did not designate the December

14, 2022 order denying his motion to vacate the default. However, he attached

both orders to his notice of appeal. A notice of appeal must designate the decision

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that the appealing party wants reviewed and the party filing the notice of appeal

should attach to the notice a copy of the signed order or judgment from which the

appeal is made. RAP 5.3(a). We will disregard defects in the form of a notice of

appeal if the notice clearly reflects an intent by a party to seek review. RAP 5.3(f).

Because Washington attached both orders and clearly argues the denial of his

motion to vacate was erroneous, we exercise our discretion to review both orders.

See S & K Motors, Inc. v. Harco Nat’l Ins. Co., 151 Wn. App. 633, 639, 213 P.3d

630 (2009) (exercising discretion to review an undesignated, final appealable order

after finding the notice of appeal clearly reflected the appellant’s intent to seek

review of the issues decided in that order).

Absent broad references to the “United States Constitution” and

“Washington State Constitution” and a citation to a case we have not been able to

locate,1 Washington has not cited authority in support of his arguments on an

alleged due process violation. “We generally ‘do not address issues that a party

neither raises appropriately nor discusses meaningfully with citations to

authority.’ ” CalPortland Co. v. LevelOne Concrete, LLC, 180 Wn. App. 379, 392,

321 P.3d 1261 (2014) (quoting Saviano v. Westport Amusements, Inc., 144 Wn.

App. 72, 84, 180 P.3d 874 (2008). We recognize that Washington is a pro se

litigant, but we hold pro se litigants to the same standards as attorneys. In re

Vulnerable Adult Pet. for Winter, 12 Wn. App. 2d 815, 844, 460 P.3d 667 (2020).

Despite the lack of authority cited in his brief, the basis for Washington’s appeal is

1 Washington cites “Hylton v. Arete Joint Venture (833 P.2d 380).” Entering the reporter citation into Westlaw’s search bar directs us to Bird-Johnson Corp. v. Dana Corp., 119 Wn.2d 423, 432, 833 P.2d 375 (1992).

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clear. MDB did not file a brief with this court and therefore does not allege any

unfair prejudice resulting from the adequacy of Washington’s briefing.2

Accordingly, we exercise our discretion and consider Washington’s arguments.

B

Washington argues his due process rights were violated when the superior

court denied his motion to vacate the default order due to “procedural irregularities”

and despite Washington’s ongoing negotiations with MDB. We disagree.

Due process requires only that a party receive proper notice of proceedings

and an opportunity to present their position to the court. Rivers v. Wash. State

Conf. of Mason Contractors, 145 Wn.2d 674, 697, 41 P.3d 1175 (2002). A

defendant must file an answer to a complaint within 20 days after service of the

summons and complaint. CR 12(a)(1). A summons must require the defendant

to serve a copy of the defendant’s answer based on the same time period. CR

4(a)(2). King County Local Civil Rules (KCLCR) 7(b)(4)(A) requires a moving party

to serve and file all motion documents no later than nine judicial days before the

date the party wishes the motion to be considered. A response must be served

and filed no later than four judicial days before the date the motion is to be

considered. KCLCR 7(b)(4)(D).

Washington’s due process rights were not violated. MDB’s summons

complies with the requirements of CR 4(a)(2). The summons informed

2 In a letter dated April 2, 2024, MDB advised this court that “[d]ue to costs,

MDB Landmark will not be filing a brief of respondent in this matter. MDB Landmark leaves it to this Court to determine, under the facts and applicable law, the merits of the trial court’s order declining to vacate.”

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Washington that a lawsuit had been commenced against him and in order to

defend against the lawsuit, Washington was required to respond to the complaint

by stating his defense in writing and serving a copy within 20 days after service of

the summons. The summons told Washington that he may demand MDB file the

lawsuit with the court. After MDB filed its motion for default to be heard on

November 28, 2022, KCLCR 7(b)(4)(D) required Washington to file a response no

later than November 21, 2022. Because the motion was to be heard without oral

argument and Washington failed to file a response on that day, the superior court

granted MDB’s motion, albeit before the hearing date. Even if settlement

negotiations could be considered ongoing, the deadlines imposed by the state and

local court rules were unchanged. Washington received proper notice of the

proceedings and an opportunity to present his position to the court, and due

process requires no more.

When a party against whom a judgment for affirmative relief is sought has

failed to appear, plead, or otherwise defend as provided by the rules and that fact

is made to appear by motion and affidavit, a motion for default may be made. CR

55(1)(a). The court may set aside an entry of default “[f]or good cause shown and

upon such terms as the court deems just.” CR 55(c)(1). “The general rule is that

‘[t]o establish good cause under CR 55, a party may demonstrate excusable

neglect and due diligence.’ ” Sellers v. Longview Orthopedic Assocs., PLLC, 11

Wn. App. 2d 515, 520, 455 P.3d 166 (2019) (alteration in original) (quoting In re

Estate of Stevens, 94 Wn. App. 20, 30, 971 P.2d 58 (1999)). Because a trial court

must determine what is just and equitable, a court may consider any prejudice to

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the plaintiff. Id. at 526. Unlike for a default judgment, a showing of a meritorious

defense is not required to set aside a default order. Id. at 520. Nevertheless, if a

party offers evidence of a meritorious defense, a trial court more likely abuses its

discretion should it fail to vacate a default order. In re Welfare of S.I., 184 Wn.

App. 531, 544, 337 P.3d 1114 (2014). Three general principles apply when

evaluating a motion to set aside a default order: (1) default orders are disfavored

because the preference is to resolve cases on the merits, (2) deciding whether to

set aside a default order is a matter of equity and the “ ‘primary concern is whether

justice is being done,’ ” and (3) “ ‘[w]hat is just and equitable must be determined

based on the specific facts of each case.’ ” Sellers, 11 Wn. App. 2d at 520

(alteration in original) (quoting VanderStoep v. Guthrie, 200 Wn. App. 507, 517,

402 P.3d 883 (2017)). Balanced against the courts’ preference to resolve cases

on the merits is the “necessity of having a responsive and responsible system

which mandates compliance with judicial summons, that is, a structured, orderly

system not dependent upon the whims of those who participate.” Griggs v.

Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979).

The superior court’s ultimate determination regarding the existence of good

cause to set aside a default order is reviewed for abuse of discretion. Sellers, 11

Wn. App. 2d at 520. A trial court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds or reasons. Mayer v. Sto Indus.,

Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). We are less likely to find an abuse

of discretion when a superior court sets aside a default order than when a trial

court denies a motion to set aside a default order. Sellers, 11 Wn. App. 2d at 521.

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But if the superior court’s decision on a motion to vacate a default order “ ‘is based

upon tenable grounds and is within the bounds of reasonableness, it must be

upheld.’ ” Stevens, 94 Wn. App. at 30 (quoting Lindgren v. Rodes, 58 Wn. App.

588, 595, 794 P.2d 526 (1990)).

In S.I., the court held that the superior court did not abuse its discretion

when it denied a motion to set aside a default order. 184 Wn. App. at 544. The

State filed a petition for termination of the parent-child relationship. Id. at 536. The

parent’s social worker personally served the mother with the petition as well as a

notice and summons. Id. The notice warned that if she failed to appear for the

hearing, “ ‘the court may enter an order in your absence permanently terminating

your parental rights.’ ” Id. The notice explained important rights, including contact

information for appointment of counsel. Id. The parent did not appear at the

courthouse for the hearing, and a week later, the State filed a motion for default,

which the superior court granted. Id. at 536-37. The S.I. court affirmed, finding

the parent’s failure to read the termination petition and summons to appear was

not excusable neglect because she was aware her children were dependent and

her parental rights were in jeopardy. Id. at 544. The parent did not demonstrate

due diligence because she failed to contact her attorney until months after

appointment. Id. at 545. The S.I. court noted the parent did not offer any evidence

of a meritorious defense and the trial court properly considered the likely result of

the termination proceeding to support its decision. Id. at 544-45.

Washington decisions have upheld conclusions there was no excusable

neglect even in cases where mistakes led to parties lacking or mislaying notice of

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suit. In Brooks v. University City, Inc., a corporation’s registered agent failed to

forward the summons. 154 Wn. App. 474, 479, 225 P.3d 489 (2010). The

defendant first appeared in the lawsuit more than two years after being properly

served with a summons because its registered agent failed to forward the

summons to its legal department. Id. The Brooks court held that the trial court

had tenable reasons to conclude that the defendant failed to show excusable

neglect. Id. at 479-80. In Prest v. American Bankers Life Assurance Co., an

insurance company employee was out of town and process was “ ‘mislaid.’ ” 79

Wn. App. 93, 100, 900 P.2d 595 (1995). We held the trial court erred by finding

this was excusable, and reversed its order vacating a default judgment. Id. at 100-

01.

Under the CR 55(c)(1) “good cause” standard, the superior court had a

tenable basis to conclude Washington did not demonstrate good cause for failing

to file an answer or respond to MDB’s motion for default. MDB advised

Washington that it would file its lawsuit and motion for default after Washington did

not file an answer. MDB advised Washington that it would proceed with the lawsuit

should the parties fail to make progress in settlement negotiations, and MDB

rejected his settlement offer. Washington received process and motion papers

indicating a need to serve a response in writing to the lawsuit. Washington’s belief

that the parties were in negotiations did not vitiate his responsibilities to adhere to

the court rules. His failure to file an answer resulted from inexcusable neglect and

he never offered any evidence of a meritorious defense. While Washington timely

moved to vacate the default order, he nevertheless did not show justification for

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not answering. The superior court did not abuse its discretion by finding

Washington had not shown good cause to vacate its default order.

Affirmed.

WE CONCUR: