FILED FEBRUARY 7, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
MICHELLE L. REID, ) ) No. 38489-6-III Respondent, ) ) v. ) ) JASON A. REID, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. — Jason Reid appeals the superior court’s denial of his motion to
vacate an order of default and $267,700 default judgment entered in favor of his ex-wife,
Michelle Reid. Michelle had sued Jason1 for damages incurred when, postdivorce, and in
violation of a restraining order, he broke into her home and accosted her and their three
children. Although Jason was served with a summons and complaint in the action, he
sought to set aside the order of default and judgment on the basis of excusable neglect,
claiming that in the context in which the documents were served (during his arrest) he
reasonably failed to review them.
The trial court ruled that Jason failed to demonstrate any of the four equitable
factors that are considered in deciding whether to vacate a default judgment under
1 Given the common last name of the parties, we refer to them by their first names for clarity. We intend no disrespect. No. 38489-6-III Reid v. Reid
CR 60(b)(1). While we disagree that Jason failed to demonstrate due diligence, we agree
with the trial court that none of the other factors were shown. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Michelle and Jason Reid were married for almost 20 years and have four children
together. At the time of the break-in that led to this lawsuit, three of the children were
still living with Michelle: two daughters, 16-year-old K.R. and 2-year-old H.R, and a son,
11-year-old C.R.2
The couple separated in 2012 and then reconciled. According to Michelle, their
reconciliation was followed by a five-year decline in Jason’s behavioral health, leading to
problems at work and home. The couple permanently separated in 2017, after which the
family law court entered multiple restraining orders against Jason during the dissolution
proceedings. Jason continually disregarded the orders, leading to his arrest on one
occasion and the entry of warrants for his arrest for other violations. The divorce became
final in August 2018 and included a no-contact order against Jason.
Shortly after midnight on the morning of November 10, 2018, Michelle was
sleeping in her upstairs bedroom with H.R. when she woke up to the sound of her dog
barking. On rising from the bed, she saw Jason outside her window. We describe the
2 Initials are used to protect the privacy interests of the children. Gen. Orders of Division III, In re the Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012), https://www.courts.wa.gov/appellate_trial_courts/ ?fa=atc.genorders_orddisp&ordnumber=2012_001&div=III.
2 No. 38489-6-III Reid v. Reid
events of that evening based on her account and the information gathered by police and
later relied on in prosecuting Jason.
Jason had reached the bedroom window with a ladder taken from a shed, whose
lock he had cut. Michelle yelled at him to leave, but Jason only shouted back at her and
with one punch broke both panes of glass and began tearing through the window screen.
Michelle grabbed H.R. and her phone and ran downstairs, where K.R. and C.R. had been
sleeping in their bedrooms. K.R. had been awakened by the sound of glass shattering,
and Michelle entered her room, tossed her the phone and said, “dad’s breaking in,” before
“barricad[ing her]self” against the door. 1 Report of Proceedings (RP) at 11.3 She
listened as Jason methodically moved through the house, opening doors in search of her.
His hands had been cut when he broke the window, and he left a trail of blood along the
carpet, door knobs, and banister.
When Jason met resistance turning the knob on the door to K.R.’s room, he
shoved his shoulder against the door, overpowering Michelle’s efforts to keep him out.
Michelle grabbed H.R., who she had placed on the bed, and stood between Jason and her
daughters. According to Michelle, when her ex-husband saw that K.R. was on the phone
(K.R. had called 911), he knocked Michelle and H.R. to the ground, grabbed K.R. and
3 Our record includes two, nonconsecutively paginated reports of proceedings. We refer to the report of the hearing on the motion for default judgment as “1 RP,” and the report of the hearing on the motion to vacate that judgment as “2 RP.”
3 No. 38489-6-III Reid v. Reid
put her in a headlock before wresting the phone from her. C.R. had awakened when his
father looked into his room before testing K.R.’s door, and he entered K.R.’s room.
Seeing his father’s bleeding hands, he asked if he should get him a towel. Michelle told
him no, that he should go back to his room and stay there. Jason agreed. Michelle took
advantage of the opportunity to tell K.R. to go get a towel for Jason, silently mouthing to
K.R. to “go get Jay”—a neighbor. 1 RP at 15. K.R. stated she would get a towel, and
left.
When Jason heard K.R.’s footsteps quicken once outside the room, he realized
what was happening and took off after K.R. Michelle grabbed the phone that he left
behind and was able to answer a return call from a 911 operator while running after
Jason. K.R. had reached Jay’s porch and was banging on his front door, screaming for
help, when Jason caught up with her, grabbed her, and physically forced her to return
home. Jay had awakened and, seeing what happened, placed his own 911 call.
Back inside the Reid home, Jason seized the phone from Michelle, disconnected
the call, and forced her, H.R., and K.R. to sit on the living room couch. Standing over
Michelle and the children, he said, “I didn’t know what I was going to do tonight and I
still don’t know.” 1 RP at 18. At that point, however, the lights of responding sheriff’s
deputies were seen outside and a spotlight scanned the home. Jason was arrested. In a
4 No. 38489-6-III Reid v. Reid
backpack that Jason had left in Michelle’s bedroom, responding officers found knives,
military grade handcuffs, and lockpicking tools.
Jason was charged with first degree burglary, violation of a no-contact order, and
two counts of fourth degree assault. All were charged as domestic violence offenses. In
March 2020, he pleaded guilty to the burglary, court-order violation, and one of the
assault charges.
Michelle retained attorneys who prepared a summons and complaint for a civil
action against Jason in the beginning of June 2020. She sought to recover damages for
battery, outrage, and trespass for the 2018 break-in. Her lawyer later represented to the
court that after preparing the complaint he tried to have Jason served in and out of
custody without success before learning that Jason was due to report to a parole officer
on July 6, 2020. The lawyer arranged for Jason to be served at that time.
Michelle filed her lawsuit and proof of service on July 28, 2020, and moved for
default at that time. An order of default was entered on August 5, 2020. A motion for
default judgment was filed on August 13, 2020, which sought damages for the cost of
repairs and cleaning required by the break in, the projected cost of the family’s relocation
to a place where Michelle hoped Jason would be unable to find them, and noneconomic
damages for emotional distress. Michelle’s noneconomic damage request was for
$250,000. She supported her damages request with a 15-page declaration that included
5 No. 38489-6-III Reid v. Reid
pictures of the blood trail left by Jason during the break-in and the weapons and tools that
had been found in his backpack. She attached exhibits documenting her expenses and
Jason’s prosecution and guilty plea.
Given the substantial request for noneconomic damages, the trial court scheduled a
hearing and requested that Michelle appear and testify. The hearing was held on August
21, 2020.4 Jason was not present. In a hearing that appears to have lasted about an hour,
Michelle’s lawyer examined her about the break-in and the aftermath.
Asked what she believed had been Jason’s intention in breaking in, Michelle
testified that in the weeks before it happened, Jason had become obsessed with whether
she had moved on to another relationship. She believed he hoped to catch her with
someone else, wreak vengeance on that person, and kill her. She believed he would have
taken the two younger children. She suspected the handcuffs he brought were intended
for K.R., who Jason probably believed would refuse to go with him.
She testified that following his arrest in 2018, Jason had been in and out of
custody, placing her and the children in recurring cycles of fear. She testified that she
and the children were all in counseling and that she and the older children were on
anxiety medications. She testified that she and K.R. were frequently triggered to relive
4 Later, at the hearing on the motion to set aside the default judgment, the court hearing that motion mistakenly stated that the default judgment hearing had been held on August 13. The motion for default judgment was filed on that date, but it is clear from the report of proceedings and the clerk’s papers that the hearing took place on August 21.
6 No. 38489-6-III Reid v. Reid
the fear they had experienced. She knew from Jason’s efforts to obtain information about
her from friends and neighbors and by his attention to her when she was required to
attend court that he was still preoccupied with her. She had installed a complete security
system and made all of her neighbors aware of the risk presented by Jason, especially
when he was not in jail. She had obtained a concealed carry permit, had acquired
multiple guns, and when the family returned after being absent from the home, she would
routinely clear it, gun in hand, “[r]oom to room, every closet.” 1 RP at 23.
She testified that she believed it was necessary to leave Spokane with her three
younger children, even though it would mean moving away from her parents and her
adult son. She explained:
This is just never going to stop. . . . He does not care about the law, he does not care about the rules, he doesn’t care about his restrictions or his boundaries. . . . He admitted to his probation officer that the people he is choosing to talk to about me, he knows that they are going to relay it back to me. And so it’s a continued effort that he is doing right now and it’s just never going to stop until he’s no longer with us.
1 RP at 27.
The trial judge asked her own questions following Michelle’s questioning by
counsel. She pinned down details of Jason’s history of court-order violations and
particulars about the economic damages being claimed. She determined that Michelle
had been provided an estimate of the cost of relocating that was higher than the damages
she had requested in her complaint and declaration. At the conclusion of the hearing, the
7 No. 38489-6-III Reid v. Reid
judge announced that she would enter judgment in the amount of $267,700, which
included the amounts being requested by Michelle plus the additional cost of relocation
established by her testimony. The judge commented that while Michelle had done a good
job of providing the facts, “[t]here were times where her emotions overcame her” and
“[s]he was crying and distraught,” which, along with the facts, tended to substantiate her
emotional distress. 1 RP at 41. She observed that the $250,000 being requested for
noneconomic loss was a large amount, “but at the same time, from my perspective,
there’s no amount of money that will give [Michelle] her safety back, her family back to
a normal pre-assault status. It’s just not possible to do that. I do think the $250,000
dollars is reasonable, and I will award that amount.” Id. at 41-42.
The default judgment was entered on August 28, 2020. On October 23, 2020,
approximately $36,000 of the judgment amount was satisfied by a sale of the Reids’
home.
On April 16, 2021, Jason, represented by counsel, moved to vacate the default
judgment. In a supporting declaration executed on March 23, 2021, he stated, “I didn’t
find out about this default judgment until about a month ago when my attorney came
across it.” Clerk’s Papers (CP) at 79. His declaration admitted to having broken into the
home, but he claimed he had only wanted to talk to members of his family and he denied
using physical force against any family member. He explained that he failed to respond
8 No. 38489-6-III Reid v. Reid
to the complaint served on him the prior July because he assumed the paperwork was
“part of the extensive divorce litigation I was going through” and following his arrest he
was taken by bus to a detention center in Walla Walla, “with none of my belongings or
paperwork.” Id. He testified he did “not recall” the summons and complaint being
included in the personal effects given to him upon his release from Walla Walla. Id. He
described his life as having been “in chaos” with no money or consistent place to live
after his release, and he had been rejailed since early the prior October when his parole
was again revoked. Id.
In opposition to the motion to vacate the default, Michelle filed a declaration from
Department of Corrections (DOC) Community Corrections Officer (CCO) Jeremy
Wilson, who testified that when served with the summons and complaint at DOC offices,
“Defendant Reid was offered the opportunity to review the legal documents at this time,
but refused.” CP at 99-100. He testified that the summons and complaint were stored by
the DOC with Jason’s other personal effects and were available to him. He testified that
Jason was released from DOC custody on August 12, 2020, and was provided at that time
with all of his personal effects, including the summons and complaint.
In reply, Jason filed a further declaration in which he testified that as soon as he
arrived to meet with his probation officer on July 6, 2020, he was placed under arrest and
“was immediately chained by the waist with my hands at my sides,” was surrounded by
9 No. 38489-6-III Reid v. Reid
“between six to eight police officers at all times,” and, when the process server arrived,
“I could barely sign with my hands chained to my side,” and “was unable to review my
papers due to my constraints and the pressure from all of the surrounding officers.”
CP at 111.
The motion to vacate the judgment was presented to a judge other than the judge
who had entered the default judgment. This second judge entered an order to show cause
and presided at the hearing on the return. At the hearing, Jason argued he had defenses to
liability and the damages. On the issue of damages, he argued that a trial would show
that Michelle intended to relocate even if the break-in never occurred. Relatedly, he
protested the noneconomic damages awarded because the cost of relocation was
“speculative,” the break-in was “short-lived,” and Michelle’s noneconomic damages
stemmed from a purely psychological injury. 2 RP at 7, 9.
The trial court denied his motion, ruling that he had failed to demonstrate any of
the equitable factors that can support setting aside a default judgment. Jason appeals.
ANALYSIS
The civil rules generally afford a defendant served with a summons and complaint
20 days within which to serve a copy of his or her defense. CR 4(a)(2). When the
defendant fails to timely appear, plead or otherwise defend, the civil rules permit the
10 No. 38489-6-III Reid v. Reid
plaintiff to move for default under CR 55(a) without further notice, and not long
thereafter, to move for entry of a judgment, again without further notice.
Jason emphasizes that default judgments are not favored as a general matter.
“‘[I]t is the policy of the law that controversies be determined on the merits rather than
by default.’” Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979)
(alteration in original) (quoting Dlouhy v. Dlouhy, 55 Wn.2d 718, 721, 349 P.2d 1073
(1960)). Yet a default and default judgment may not be entered unless the defaulting
party has failed to respond, so the burden is on the defaulting party to demonstrate
circumstances that justify setting them aside. For good cause shown and upon such terms
as the court deems just, the court may set aside an entry of default. CR 55(c). If
judgment by default has been entered, it may be set aside in accordance with CR 60(b).
Jason’s motion to vacate Michelle’s default judgment was based on CR 60(b)(1),
which authorizes the trial court to relieve a party from a judgment for “[m]istakes,
inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or
order.” The longstanding showing that supports vacating a default judgment for these
reasons is “(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
11 No. 38489-6-III Reid v. Reid
default judgment is vacated.” Little v. King, 160 Wn.2d 696, 703-04, 161 P.3d 345
(2007) (citing White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968)).
The first two factors are the major elements to be demonstrated by the moving
party. White, 73 Wn.2d at 352. When the moving party is able to demonstrate a strong
or virtually conclusive defense to the opponent’s claim, “scant time will be spent
inquiring into the reasons which occasioned entry of the default, provided the moving
party is timely with his application and the failure to properly appear in the action in the
first instance was not willful.” Id. On the other hand, if the moving party demonstrates a
weaker defense but one that would, prima facie at least, warrant a trial on the merits, the
reasons for his failure to timely appear in the action before the default will be scrutinized
with greater care, as will his diligence after notice of the default, and the potential
hardship on the opposing party. Id. at 352-53.
In determining the primary factor of whether the CR 60 movant has presented
substantial evidence of a prima facie defense, the court reviews the evidence in the light
most favorable to the moving party. Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn.
App. 829, 834, 14 P.3d 837 (2000). This is consistent with the primary purpose for
requiring a meritorious defense, which is to avoid the useless trial that would occur if the
defendant has no factual basis on which to defend. Griggs, 92 Wn.2d at 583.
12 No. 38489-6-III Reid v. Reid
The trial court does not assess evidence of the second, excusable neglect factor in
the light most favorable to the defendant, however. VanderStoep v. Guthrie, 200 Wn.
App. 507, 526, 402 P.3d 883 (2017). The trial court may make credibility determinations
and weigh the evidence in order to determine whether the defendant can show mistake,
inadvertence, or excusable neglect. Id.
We review a trial court’s decision on a motion to set aside a default judgment for
abuse of discretion. Little, 160 Wn.2d at 702 (citing Yeck v. Dep’t of Lab. & Indus., 27
Wn.2d 92, 95, 176 P.2d 359 (1947)). An abuse of discretion is more readily found when
the trial court denies a trial on the merits than when a judgment is set aside and a trial is
had. White, 73 Wn.2d at 351-52.
A party can rely on CR 60(b)(1) to request the setting-aside of an allegedly
excessive default damage award without also seeking to set aside the finding of liability.
Evans v. Firl, No. 38364-4-III, slip op. at 13 (Wash. Ct. App. Jan. 31, 2023). When a
default damage award determined under CR 55(b)(2) is challenged as excessive,
Washington cases recognize three ways of addressing White’s prima facie defense factor.
Id. One is a fact-based showing of a defense; a second is excuse-based, pointing to the
difficulty of rebutting a large general-damages claim without the benefit of discovery;
and the third is a challenge to the legal sufficiency of evidence to support the damage
award. Id.
13 No. 38489-6-III Reid v. Reid
Jason makes six assignments of error, which we analyze as raising five issues:
whether the trial court erred in making adverse findings or conclusions on the four White
factors, and whether it erred in denying the motion to vacate the default judgment.
I. THE TRIAL COURT DID NOT ERR IN CONCLUDING THAT JASON FAILED TO DEMONSTRATE A PRIMA FACIE DEFENSE
Jason’s third assignment of error challenges paragraph 7 of the trial court’s
findings and conclusions, in which the trial court concludes that Jason did not present
evidence of a meritorious defense to liability and it is unable to find substantial evidence
of a meritorious defense. The court found the following facts5 in that paragraph:
In the corresponding criminal matter, Defendant Reid plead guilty to first degree burglary, assault and violation of existing protection orders, and . . . [e]ven in his declaration, Defendant Reid admits to breaking into the Plaintiff’s house.
CP at 121, ¶ 7.
While error is assigned to the conclusion speaking to liability, we agree with
Michelle that the argument section of Jason’s appellate brief seeks relief from only what
he claims are excessive damages. E.g., Opening Br. of Appellant at 11 (“so that the
damages could be heard on their merits”), 12 (“2. The Court erred [in] concluding Mr.
5 A finding of fact is an assertion that evidence shows something occurred or exists, independent of an assertion of its legal effect, while a statement is a conclusion of law if the determination is made by a process of legal reasoning from the facts. Lanzce G. Douglass, Inc. v. City of Spokane Valley, 154 Wn. App. 408, 417-18, 225 P.3d 448 (2010).
14 No. 38489-6-III Reid v. Reid
Reid did not present a . . . defense to the damages” (boldface omitted)), 13-14 (“Mr. Reid
supplied . . . [a] defense to the damages”), 14 (“Mr. Reid provided a defense to the
damages.”). Reasonably read, Jason’s brief abandons any defense to liability.
In moving to vacate Michelle’s judgment in the trial court, Jason sought a trial on
liability and damages. But preservation of error in the lower court is not a substitute for
adequately identifying in the opening brief in this court the errors and issues an appellant
seeks to have reviewed. Parties on appeal must present argument in support of the issues
they identify on appeal “with citations to legal authority and references to relevant parts
of the record.” RAP 10.3(a)(6). We will not review an issue included as an assignment
of error if it is unsupported by legal argument. Brownfield v. City of Yakima, 178 Wn.
App. 850, 876, 316 P.3d 520 (2013).
Jason seeks to provide the required argument in his reply brief. But his
identification of what is at best a minimal and tenuous defense to liability in the reply
brief comes too late.6 Cramer v. PEMCO Ins. Co., 67 Wn. App. 563, 567, 842 P.2d 479
6 Jason engages in his reply brief a comparative analysis of the elements of his criminal convictions and the elements of Michelle’s tort claims. Whether he presented “substantial evidence” of a defense requires consideration of his two declarations and the police reports and affidavit of probable cause he agreed could provide the factual basis for his guilty plea. Collectively, Jason admits in those materials that he trespassed, in the middle of the night, in violation of a no-contact order, and that he broke and climbed in through a bedroom window, taking Michelle’s phone from both her and K.R. to prevent them from contacting 911. He admitted that breaking into the house was an “extreme” act. CP at 78.
15 No. 38489-6-III Reid v. Reid
(1992) (declining to review an issue raised for the first time in reply because it deprived
the respondent of the opportunity to answer the claim); City of Spokane v. White, 102
Wn. App. 955, 963, 10 P.3d 1095 (2000) (same); see also RAP 10.3(c) (“A reply brief
should . . . be limited to a response to the issues in the brief to which the reply brief is
directed.”). It works an injustice on Michelle and frustrates this court’s review to
entertain an argument in the reply brief to which we have no response.
Turning to Jason’s challenge to damages, in this court’s recent decision in Evans,
we examined the three ways a defaulting party can address White’s prima facie defense
factor when a default damage award under CR 55(b)(2) is challenged. Jason relies
exclusively on the excuse-based showing first recognized by this court in Calhoun v.
Merritt, 46 Wn. App. 616, 731 P.2d 1094 (1986). Opening Br. of Appellant at 12-14. In
Calhoun, this court allowed the prima facie defense factor to be addressed by an
explanation why the defendant would have difficulty presenting a defense without
discovery. Evans, slip op. at 17. Calhoun recognized that developing a defense to the
general damages would require the examination of Calhoun by a defense expert, and
presenting the defense was “complicated by the subjective . . . nature of such damages.”
46 Wn. App. at 620. “Taking the position that ‘it would be inequitable and unjust’ to
This is at best a minimal, tenuous defense that would require “scrutiniz[ing] with . . . care” the other three White factors. White, 73 Wn.2d at 352-53. As discussed hereafter, Jason fails to make a strong showing on the second and fourth factors.
16 No. 38489-6-III Reid v. Reid
deny the motion to vacate for failure to present a prima facie defense, this court looked to
White’s three remaining considerations and concluded that they weighed in favor of
vacating the damages.” Evans, slip op. at 18 (quoting Calhoun, 46 Wn. App. at 620).
Later cases recognize that the difficulty of responding to noneconomic damages
without discovery cannot operate as a general rule requiring that all such default
judgments be vacated, because “no default judgment could ever stand,” since a default
judgment “by definition is entered before the discovery phase of litigation begins.”
Farmer’s Ins. Co. v. Waxman Indus., Inc., 132 Wn. App. 142, 147, 130 P.3d 874 (2006).
Merritt’s excuse for being unable to present a fact-based excuse was accepted in Calhoun
“where he was able to make strong showings on the second, third, and fourth White
factors.” Evans, slip op. at 28. Absent a strong showing of an excusable failure to appear
and due diligence, equity does not support excusing the defaulting party’s inability to
demonstrate a fact-based defense. As discussed hereafter, Jason does not demonstrate an
excuse for failing to appear, the second primary factor, or that Michelle would not suffer
substantial hardship if the judgment is set aside, the fourth secondary factor.
In theory, Jason could challenge the legal sufficiency of Michelle’s evidence to
support her damages, relying on Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin,
Todd & Hokanson, 95 Wn. App. 231, 242, 974 P.2d 1275 (1999); see also Evans, slip op.
at 20-24. But Michelle’s evidence in support of the damages is legally sufficient. She
17 No. 38489-6-III Reid v. Reid
provided substantial documentary support and live testimony. Evidence of emotional
distress can be provided by the plaintiff’s own testimony, and no corroboration is
required. Bunch v. King County Dep’t of Youth Servs., 155 Wn.2d 165, 181, 116 P.3d
381 (2005) (affirming a $260,000 award of damages for emotional distress in a
discrimination case). The trial court’s decision to conduct a hearing in this case because
of the substantial noneconomic damage request was a conscientious application and
clearly adequate compliance with CR 55(b)(2).
The trial court did not abuse its discretion in concluding that Jason did not
demonstrate the first White factor.
II. THE TRIAL COURT DID NOT ERR IN DETERMINING THAT JASON FAILED TO DEMONSTRATE MISTAKE, INADVERTENCE, SURPRISE, OR EXCUSABLE NEGLECT
Jason’s second, fourth, and fifth assignments of error contend that the trial court
erred in findings bearing on his excuse for failing to appear. His briefing on appeal
speaks of oral findings made by the court at the hearing, but since those oral findings are
not incorporated in the court’s order, they are not the findings we review. State v. Sims,
193 Wn.2d 86, 99, 441 P.3d 262 (2019). The following factual findings bearing on
Jason’s excuse for failing to appear are made in paragraphs 2, 8 and 9 of the findings and
conclusions:
While in custody at the DOC, Defendant Reid had the opportunity to access the Summons and Complaint and review them with his attorney but did not do so.
18 No. 38489-6-III Reid v. Reid
CP at 120, ¶ 2;
Defendant Reid testified that he chose not to read the summons and complaint because he thought it concerned his divorce. . . . Further, the Defendant had the opportunity both in and out of DOC custody to examine the summons and complaint and respond prior to the entry of the default judgment but chose not to.
CP at 121, ¶ 8; and
Defendant Reid states in his declaration that he did not read the Summons and Complaint because he thought it concerned a divorce proceeding. Defendant Reid could have requested access to the Summons and Complaint while in DOC custody but chose not to. On August 12, 2020, Defendant Reid was released from DOC custody and the pleadings were returned to him. This occurred prior to entry of the Default Judgment, but Defendant Reid failed to take action to respond to this matter.
CP at 121, ¶ 9. Paragraphs 8 and 9 include legal conclusions that “[a] decision not to
read a properly served summons and complaint is not excusable neglect, a mistake,
inadvertence, or surprise,” and “the Defendant’s failure to respond to the Summons and
Complaint was not the result of mistake, inadvertence, surprise or excusable neglect.”
CP at 121.
A party seeking to set aside a default must be prepared to show as the second
White factor that their failure to timely appear and answer was due to mistake,
inadvertence, surprise, or excusable neglect. 73 Wn.2d at 352. The trial court has broad
discretion in deciding the issue of excusable neglect and may make credibility
determinations and weigh facts in order to resolve it. Rosander v. Nightrunners Transp.,
Ltd., 147 Wn. App. 392, 406, 196 P.3d 711 (2008) (citing Johnson v. Cash Store, 116
19 No. 38489-6-III Reid v. Reid
Wn. App. 833, 847-49, 68 P.3d 1099 (2003)). On review of a decision under CR 60(b),
any findings are reviewed (as in other contexts) for substantial evidence. Sutey v. T26
Corp., 13 Wn. App. 2d 737, 750, 466 P.3d 1096 (2020) (citing Sunnyside Valley Irrig.
Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)). We defer to the trial court on
issues of conflicting testimony, witness credibility and the persuasiveness of the
evidence. State v. Longuskie, 59 Wn. App. 838, 844, 801 P.2d 1004 (1990).
The evidence relevant to these challenged findings begins with Jason’s declaration
in support of his motion to vacate the judgment, in which he stated:
[A] complaint was served to me on July 6th, 2020. I was asked to report to my parole officer, and I was served upon arrival. I was in custody at the [Spokane] DOC office at the time of service . . . . As soon as I was served, I was taken by bus to the detention center in Walla Walla with none of my belongings or paperwork. I had assumed that the paperwork I was served was part of the extensive divorce litigation that I was going through at the time. . . . I had no way of knowing these papers were served to me at the time given that I was being arrested at the time of service. I did not have time to read any of the documents before they were taken. As soon as I arrived at the prison, I was put in the intensive management unit. This left me isolated for the 45 days that I spent there. The paperwork that I was served was left with my belongings at the DOC office. I had no way to know that I needed to respond to this claim. The claim required that I respond within 20 days; I was still incarcerated at this point in time without my paperwork. In addition, when I did receive my belongings in a Ziploc back after release, I do not recall this complaint being included in those items.
CP at 78-79.
20 No. 38489-6-III Reid v. Reid
Michelle responded to Jason’s declaration with the declaration of CCO Wilson,
who testified he was competent to address the following matters relevant to the trial
court’s findings:
4. On July 6, 2020, Defendant Reid was served with the Summons and Complaint in this matter during a meeting with Officer Whitley. Defendant Reid was offered the opportunity to review the legal documents at this time, but refused. Following service, Defendant Reid was taken back into custody for violating the terms of his release . . . . The Summons and Complaint was stored by the DOC along with Mr. Reid’s other personal effects. 5. Defendant Reid could have accessed the Summons and Complaint or contact with an attorney at any time while in DOC. 6. DOC Policy 590.500 “Legal Access for Incarcerated Individuals” states all incarcerated individuals will be provided meaningful access to the Courts, that individuals in restrictive housing (such as Secure Management Units like Defendant Reid was) will have access to legal documents, materials and resources, incoming and outgoing legal mail will be processed, and that Reid could communicate with counsel and the court, research and prepare legal matters, access materials, purchase and retain legal reference material, obtain free notary services, and have confidential attorney visits. Violators (persons incarcerated for probation/parole-related matters) may have some additional limits, but had Defendant Reid asked, the Counselor would have facilitated access. 7. As such . . . while in custody [Reid] was able to contact his DOC counselor for access to and the ability to respond to any legal matters or pleadings . . . . [He] was aware of and familiar with this process having employed it to speak [to] his criminal defense attorney, often in connection with [other matters] . . . . .... 9. . . . [O]n July 8, 2020, just two days after being served, Mr. Reid requested and was given access to legal counsel [in connection with another matter].
21 No. 38489-6-III Reid v. Reid
10. According to DOC records, at no time did Defendant Reid request access to or assistance in responding to the Summons and Complaint served on him in this matter. . . . 11. On August 12, 2020, Defendant Reid was released from DOC custody and provided with all of his personal effects, including a copy of the Summons and Complaint in this matter. 12. On August 17, 2020, Defendant Reid was taken back into DOC custody for violating the terms of his release . . . . 13. According to DOC records and my personal knowledge, Defendant Reid never once exercised his right to access to the Summons and Complaint served on him on July 6, 2020. If he had, he would have promptly been given access to them.
CP at 99-101.
In a reply declaration, Jason provided the following testimony relevant to his
excuse for failing to appear:
It is stated that I was given an opportunity to review the paperwork that I was being served. The circumstances I was subjected to were not reasonable for me to review this paperwork. As soon as I met with my probation officer, I was told I was being put under arrest. I was immediately chained by the waist with my hands at my sides. I was unable to move my arms around at all. I was surrounded by between six to eight police officers at all times. The atmosphere was intense. Officer Wilson repeatedly told me how I was going to be immediately brought to Walla Walla. Conveniently, this was when the process server showed up. I could barely sign with my hands chained to my side. I was unable to review my papers due to my constraints and the pressure from all of the surrounding officers. .... It was stated that I had access to all of my belongings during my time in Walla Walla. All of my belongings were in Spokane at the corrections office. There would have been no way for me to have access to that paperwork in Walla Walla. In addition, I was in the IMU which is
22 No. 38489-6-III Reid v. Reid
close to isolation. I was completely cut off from all resources. I tried several times to make contact with my counselor, Russell Whitley, through kites but never received a response.
The trial court’s findings that Jason “did not read” and “chose not to read” the
summons and complaint because he thought they concerned his divorce are supported by
CCO Wilson’s testimony that Jason “was offered the opportunity to review the legal
documents [when served], but refused” and Jason’s own testimony that “I had assumed
that the paperwork I was served was part of the extensive divorce litigation that I was
going through at the time.” CP at 121, 100, 79. While Jason denies having any
opportunity to review the documents, the credibility determination reflected in the trial
court’s findings is unreviewable on appeal. State v. Kaiser, 161 Wn. App. 705, 724, 254
P.3d 850 (2011).
The findings that Jason had the opportunity to obtain access to the summons and
complaint while in custody notwithstanding that they had not been transported to Walla
Walla are supported by CCO Wilson’s testimony and DOC policy 590.500. The trial
judge who heard the motion to vacate likely had some familiarity with DOC policy
590.500, which is readily accessible to courts. Like this court, the trial court would be
familiar with the need of incarcerated prisoners to address impending legal issues and
institutional policies that give them a reasonable ability to do so. It would be naïve for a
23 No. 38489-6-III Reid v. Reid
court to assume that DOC always complies with prison policies, but the trial court could
reasonably look askance at Jason’s contention that he had no ability whatsoever to
request access to the papers served on him that remained in Spokane. The trial court was
entitled to view CCO Wilson’s information on this score as more believable.
The findings that the pleadings were returned to Jason on his release from DOC
custody on August 12, 2020, which gave him time to review them before entry of the
default judgment, is supported by substantial evidence. CCO Wilson’s declaration
supports the fact that they were returned to Jason on August 12; notably, Jason does not
deny receiving them at that time, but says only, “I do not recall this complaint being
included.” CP at 79 (emphasis added). It is clear from the record that the default
judgment was not entered until August 28, 2020.
Substantial evidence supports the trial court’s findings and it did not abuse its
discretion in concluding that Jason did not demonstrate the second White factor.
III. THE TRIAL COURT ERRED IN RULING THAT JASON FAILED TO DEMONSTRATE A TIMELY RESPONSE TO ENTRY OF THE DEFAULT JUDGMENT
A motion to vacate a judgment under CR 60(b)(1) must be made within a
reasonable time and not more than one year after the judgment is taken. In moving to set
aside a default judgment on equitable grounds, timeliness takes on added importance
under the third White factor. The moving party must be prepared to demonstrate that it
“acted with due diligence after notice of entry of the default judgment.” 73 Wn.2d at
24 No. 38489-6-III Reid v. Reid
352. Generally, the passage of several months before moving to vacate the judgment
does not qualify as due diligence if no valid justification for the delay is offered. Luckett
v. Boeing Co., 98 Wn. App. 307, 313, 989 P.2d 1144 (1999) (four-month delay in motion
to vacate was not diligent absent a valid excuse); see also Ha v. Signal Elec., Inc., 182
Wn. App. 436, 454, 332 P.3d 991 (2014) (citations omitted) (“Three months is not within
a reasonable time to respond to a default judgment following notice of entry . . . [but] a
party that moves to vacate within one month of notice satisfies the diligence
requirement.”).
Jason’s fifth assignment of error contends the trial court erred in finding in
paragraph 9 of its findings and conclusions that he was aware of and failed to take timely
action to respond to the motion for default. The findings state:
[O]n October 23, 2020, his former family home was sold pursuant to the parties’ divorce decree. Defendant Reid states he was entitled to proceeds of that sale. However, despite being out of DOC custody at the time, Defendant Reid failed to diligently take action after those proceeds were paid to satisfy the judgment lien established by the Default Judgment in this matter. Instead, the Defendant waited seven months before suddenly filing the present motion.
CP at 122, ¶ 9.
Substantial evidence supports the facts that the former family home was sold on
the date indicated, Jason believed he was entitled to half the proceeds, and—while Jason
did not wait seven months to file his motion—there was a six month delay. But
25 No. 38489-6-III Reid v. Reid
substantial evidence does not support the finding that Jason was out of custody in
October 2020 or the court’s inference that the sale of the home gave him notice of the
default judgment, triggering his duty to act.
In moving to set aside the judgment, Jason testified, “I didn’t find out about this
default judgment until about a month ago when my attorney came across it.” CP at 79.
His declaration is dated March 23, 2021. His motion to vacate the judgment was filed on
April 16, 2021. According to this information, the motion was filed within less than two
months after Jason learned of the default judgment. In opposing Jason’s motion for relief
from the judgment, Michelle offered no evidence or argument that Jason would have
learned of the default judgment earlier than late February 2021.
At the hearing on the motion to vacate, the trial court queried counsel about
whether the sale of the home in October 2020 would have put Jason on notice of the
default judgment, since he would have expected half the equity but did not receive it.
Jason’s lawyer reminded the court that Jason had been rearrested before the house was
sold, and had testified in March 2021 that “I have been in jail since October 2nd, 2020.”
CP at 79. Michelle’s lawyer admitted to the court that he “ha[d] no idea what the
defendant did or did not know” at the time the house was sold. 2 RP at 31.
26 No. 38489-6-III Reid v. Reid
There is no substantial evidence to support the trial court’s conjecture that Jason
learned of the default judgment before late February 2021. It abused its discretion in
concluding that he failed to demonstrate White’s third, due diligence, factor.
IV. THE TRIAL COURT DID NOT ERR IN DETERMINING THAT JASON FAILED TO DEMONSTRATE THAT MICHELLE WOULD NOT SUFFER SUBSTANTIAL HARDSHIP
Finally, Jason’s sixth assignment of error contends that the trial court erred in
finding that vacating the judgment would result in substantial hardship to the plaintiff.
Elsewhere in his briefing, he characterizes it as a conclusion rather than a finding, and we
agree. He argues that the conclusion should be, but is not, supported by findings; on this,
we disagree.
Jason cites no authority that a court is required to enter findings and conclusions in
denying a motion to vacate under CR 60(b). This court has previously held that there is
no such requirement. In re Marriage of Hammack, 114 Wn. App. 805, 811-12, 60 P.3d
663 (2003). Further, CR 52(a)(5)(B) provides that “[f]indings of fact and conclusions of
law are not necessary . . . [o]n decisions of motions under rules 12 or 56 or any other
motion, except as provided in rules 41(b)(3) and 55(b)(2).”
Absent an explanation of the trial court’s conclusion on the substantial hardship
factor, we assume the trial court was persuaded by Michelle’s argument as to how she
would be harmed. Michelle argued she would be harmed because she relied on the
finality of her default judgment to execute on the equity realized on the sale of the family
27 No. 38489-6-III Reid v. Reid
home, and she used those funds to close her business, move far away from Spokane, and
take up life and work elsewhere. She argued she was financially unable to replace funds
she had already spent. Jason offered no countervailing evidence that Michelle had other
sufficient resources. He did not propose to eliminate this hardship by conceding liability
in at least the amount she had spent and would not be able to restore.
Financial dependency on a judgment was implicitly recognized as supporting a
finding of substantial hardship in Gutz v. Johnson, 128 Wn. App. 901, 920, 117 P.3d 390
(2005), aff’d sub nom. Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 (2007), even
though the facts did not support the argument in that case. The defaulting party was held
to have demonstrated “no substantial hardship” where Ms. Gutz “has always been
employed and is not dependent on the judgment for her livelihood” and the Gutzes “do
not appear to be receiving ongoing medical treatment.” White, 73 Wn.2d at 352; Gutz,
128 Wn. App. at 921.
Jason fails to show that vacating Michelle’s judgment would not cause her to
suffer this substantial hardship. The trial court did not abuse its discretion in concluding
that Jason failed to demonstrate the fourth White factor.
V. THE TRIAL COURT DID NOT ERR IN REFUSING TO VACATE THE DEFAULT JUDGMENT, AND JASON IS NOT ENTITLED TO AN AWARD OF ATTORNEY FEES
Jason’s first assignment of error is to the trial court’s entry of the order denying
his motion to vacate. Denial was proper, however, even where we disagree with the trial
28 No. 38489-6-III Reid v. Reid
court’s conclusion that Jason failed to demonstrate due diligence. He failed to
demonstrate the other White factors, including the primary first and second factors.
Jason requests an award of attorney fees and costs, relying on RAP 18.1(a) and
RCW 26.09.140. RAP 18.1 permits a party to request an award of reasonable attorney
fees on appeal if a party is entitled to them under applicable law. RCW 26.09.140
authorizes the court to order a party to pay costs, including attorney fees, incurred in a
proceeding under chapter 26.09 RCW, which governs dissolution proceedings. Jason
fails to explain how Michelle’s tort action qualifies as a dissolution proceeding under
chapter 26.09 RCW. His request is denied.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Siddoway, C.J.
WE CONCUR:
Fearing, J. Lawrence-Berrey, J.