IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROBERT SMITH, an unmarried person, DIVISION ONE Respondent, No. 85512-3-I v. UNPUBLISHED OPINION BRIAN HEBERLING, an unmarried person,
Appellant.
DWYER, J. — Brian Heberling challenges the trial court’s denial of his
motion to vacate a judgment pursuant to CR 60(b)(5). Heberling asserts that the
judgment entered against him was void because it was not in compliance with
the statutory requirements for confessed judgments. Finding no error, we affirm.
I
On or about October 26, 2013, Heberling signed a confessed judgment in
favor of Robert Smith in the amount of $84,474.85, pursuant to a settlement
agreement concerning an unpaid loan.1 After Heberling ceased making
payments to Smith, Smith filed a motion for entry of confession of judgment. On
September 28, 2016, the court ordered that judgment should be entered against
Heberling; however, the court neglected to attach the confessed judgment to its
order. Smith moved to correct this oversight on or about October 5, 2022. The
1 The parties dispute the facts leading up to the signing of the confessed judgment. As none of those facts are relevant to the issues on appeal, we do not recount them here. No. 85512-3-I/2
court granted the motion and entered an amended order specifying the amount
of the judgment and accumulated interest. The judgment was amended a
second time to correct the interest rate from 9 percent to 12 percent in
accordance with the settlement agreement.
In 2023, Heberling filed a motion to vacate the judgment pursuant to CR
60(b)(5). Heberling asserted that the confessed judgment was void as it did not
adhere to the requirements of RCW 4.60.040. The trial court disagreed and
further determined that Heberling’s motion was not timely so as to warrant
vacation under any other provisions of CR 60(b).
Heberling timely appeals.
II
Heberling asserts that the trial court erred by denying his motion to vacate
the judgment against him. This is so, he asserts, because the confessed
judgment did not adhere to the requirements of RCW 4.60.040. Heberling’s
argument lacks merit.
The sole ground for relief cited by Heberling is that the judgment is void
and should be vacated under CR 60(b)(5). The trial court has a nondiscretionary
duty to vacate a void judgment. In re Marriage of Markowski, 50 Wn. App. 633,
635, 749 P.2d 754 (1988). “A judgment is void if the issuing court lacks personal
jurisdiction or subject matter jurisdiction over the claim.” Gates v. Homesite Ins.
Co., 28 Wn. App. 2d 271, 279, 537 P.3d 1081 (2023). Whether a judgment is
void is a question of law that we review de novo. Castellon v. Rodriguez, 4 Wn.
App. 2d 8, 14, 418 P.3d 804 (2018).
2 No. 85512-3-I/3
Heberling does not assert that the trial court lacked personal jurisdiction
over him. Rather, Heberling asserts that the trial court lacked the authority to
enter a confessed judgment that did not adhere to the requirements of RCW
4.60.040. Heberling attempts to cast this as an issue of subject matter
jurisdiction, but he is incorrect. Subject matter jurisdiction refers to the court’s
authority to adjudicate the type of controversy implicated and issue the type of
relief called for. Ronald Wastewater Dist. v. Olympic View Water & Sewer Dist.,
196 Wn.2d 353, 372, 474 P.3d 547 (2020). Conversely,
where the court “ʻhas jurisdiction of the parties and of the subject matter, and has the power to make the order or rulings complained of, but the latter is based upon a mistaken view of the law or upon the erroneous application of legal principles, it is erroneous,’” as opposed to void for lack of jurisdiction.
Ronald Wastewater, 196 Wn.2d at 372-73 (internal quotation marks omitted)
(quoting Dike v. Dike, 75 Wn.2d 1, 7, 448 P.2d 490 (1968)). Heberling does not
claim that the trial court lacked subject matter jurisdiction over a breach of
contract action nor does he question the trial court’s authority to enter confessed
judgments generally. To be clear, there is no question of the trial court’s subject
matter jurisdiction in this matter.
To the extent that Heberling casts his argument as one concerning the
trial court’s inherent authority, this argument also fails. In In re of Marriage of
Kaufman, 17 Wn. App. 2d 497, 510, 485 P.3d 991 (2021), the appellant made a
similar argument, asserting that the dissolution decree was void because the trial
court did not have the inherent authority to enter an order dividing military
disability retirement benefits, as it was prohibited by federal law. Division Two of
3 No. 85512-3-I/4
this court disagreed, noting that “inherent power” is a “‘component[] of subject
matter jurisdiction’” that limits a court to providing only the types of relief called
for in the complaint. Kaufman, 17 Wn. App. 2d at 514 (alteration in original)
(quoting Ronald Wastewater, 196 Wn.2d at 372). When a trial court fails to
adhere to a nonjurisdictional statute, such as the federal statute prohibiting the
distribution of military disability retirement benefits, that failure constitutes an
error of law. Kaufman, 17 Wn. App. 2d at 513. As we explained, legal error is
not jurisdictional, nor does it deprive a court of its inherent power to enter
judgment. Kaufman, 17 Wn. App. 2d at 513-14.
Heberling nonetheless asserts that Puget Sound National Bank v. Levy,
10 Wash. 499, 39 P. 142 (1895), establishes that a confessed judgment that
does not adhere to RCW 4.60.070 is void. As Smith correctly notes, Puget
Sound predates CR 60 and all of the law construing it. More recently than 1895,
our Supreme Court has made it clear that
where a court has jurisdiction over the person and the subject matter, no error in the exercise of such jurisdiction can make the judgment void, and that a judgment rendered by a court of competent jurisdiction is not void merely because there are irregularities or errors of law in connection therewith. This is true even if there is a fundamental error of law appearing upon the face of the record. Such a judgment is, under proper circumstances, voidable, but until avoided is regarded as valid.
Dike, 75 Wn.2d at 8 (quoting Robertson v. Commonwealth of Va., 181 Va. 520,
536, 25 S.E.2d 352 (1943)). Puget Sound suffers from the same fault that
plagued this court for many years: interchangeable use of the words “void” and
“voidable.” 10 Wash. at 503-04. As we explained in Rabbage v. Lorella, 5 Wn.
4 No. 85512-3-I/5
App. 2d 289, 298, 426 P.3d 768 (2018), a lack of caution in usage of the terms
“jurisdictional” and “void” frequently led to analytical errors that courts should be
wont to repeat.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROBERT SMITH, an unmarried person, DIVISION ONE Respondent, No. 85512-3-I v. UNPUBLISHED OPINION BRIAN HEBERLING, an unmarried person,
Appellant.
DWYER, J. — Brian Heberling challenges the trial court’s denial of his
motion to vacate a judgment pursuant to CR 60(b)(5). Heberling asserts that the
judgment entered against him was void because it was not in compliance with
the statutory requirements for confessed judgments. Finding no error, we affirm.
I
On or about October 26, 2013, Heberling signed a confessed judgment in
favor of Robert Smith in the amount of $84,474.85, pursuant to a settlement
agreement concerning an unpaid loan.1 After Heberling ceased making
payments to Smith, Smith filed a motion for entry of confession of judgment. On
September 28, 2016, the court ordered that judgment should be entered against
Heberling; however, the court neglected to attach the confessed judgment to its
order. Smith moved to correct this oversight on or about October 5, 2022. The
1 The parties dispute the facts leading up to the signing of the confessed judgment. As none of those facts are relevant to the issues on appeal, we do not recount them here. No. 85512-3-I/2
court granted the motion and entered an amended order specifying the amount
of the judgment and accumulated interest. The judgment was amended a
second time to correct the interest rate from 9 percent to 12 percent in
accordance with the settlement agreement.
In 2023, Heberling filed a motion to vacate the judgment pursuant to CR
60(b)(5). Heberling asserted that the confessed judgment was void as it did not
adhere to the requirements of RCW 4.60.040. The trial court disagreed and
further determined that Heberling’s motion was not timely so as to warrant
vacation under any other provisions of CR 60(b).
Heberling timely appeals.
II
Heberling asserts that the trial court erred by denying his motion to vacate
the judgment against him. This is so, he asserts, because the confessed
judgment did not adhere to the requirements of RCW 4.60.040. Heberling’s
argument lacks merit.
The sole ground for relief cited by Heberling is that the judgment is void
and should be vacated under CR 60(b)(5). The trial court has a nondiscretionary
duty to vacate a void judgment. In re Marriage of Markowski, 50 Wn. App. 633,
635, 749 P.2d 754 (1988). “A judgment is void if the issuing court lacks personal
jurisdiction or subject matter jurisdiction over the claim.” Gates v. Homesite Ins.
Co., 28 Wn. App. 2d 271, 279, 537 P.3d 1081 (2023). Whether a judgment is
void is a question of law that we review de novo. Castellon v. Rodriguez, 4 Wn.
App. 2d 8, 14, 418 P.3d 804 (2018).
2 No. 85512-3-I/3
Heberling does not assert that the trial court lacked personal jurisdiction
over him. Rather, Heberling asserts that the trial court lacked the authority to
enter a confessed judgment that did not adhere to the requirements of RCW
4.60.040. Heberling attempts to cast this as an issue of subject matter
jurisdiction, but he is incorrect. Subject matter jurisdiction refers to the court’s
authority to adjudicate the type of controversy implicated and issue the type of
relief called for. Ronald Wastewater Dist. v. Olympic View Water & Sewer Dist.,
196 Wn.2d 353, 372, 474 P.3d 547 (2020). Conversely,
where the court “ʻhas jurisdiction of the parties and of the subject matter, and has the power to make the order or rulings complained of, but the latter is based upon a mistaken view of the law or upon the erroneous application of legal principles, it is erroneous,’” as opposed to void for lack of jurisdiction.
Ronald Wastewater, 196 Wn.2d at 372-73 (internal quotation marks omitted)
(quoting Dike v. Dike, 75 Wn.2d 1, 7, 448 P.2d 490 (1968)). Heberling does not
claim that the trial court lacked subject matter jurisdiction over a breach of
contract action nor does he question the trial court’s authority to enter confessed
judgments generally. To be clear, there is no question of the trial court’s subject
matter jurisdiction in this matter.
To the extent that Heberling casts his argument as one concerning the
trial court’s inherent authority, this argument also fails. In In re of Marriage of
Kaufman, 17 Wn. App. 2d 497, 510, 485 P.3d 991 (2021), the appellant made a
similar argument, asserting that the dissolution decree was void because the trial
court did not have the inherent authority to enter an order dividing military
disability retirement benefits, as it was prohibited by federal law. Division Two of
3 No. 85512-3-I/4
this court disagreed, noting that “inherent power” is a “‘component[] of subject
matter jurisdiction’” that limits a court to providing only the types of relief called
for in the complaint. Kaufman, 17 Wn. App. 2d at 514 (alteration in original)
(quoting Ronald Wastewater, 196 Wn.2d at 372). When a trial court fails to
adhere to a nonjurisdictional statute, such as the federal statute prohibiting the
distribution of military disability retirement benefits, that failure constitutes an
error of law. Kaufman, 17 Wn. App. 2d at 513. As we explained, legal error is
not jurisdictional, nor does it deprive a court of its inherent power to enter
judgment. Kaufman, 17 Wn. App. 2d at 513-14.
Heberling nonetheless asserts that Puget Sound National Bank v. Levy,
10 Wash. 499, 39 P. 142 (1895), establishes that a confessed judgment that
does not adhere to RCW 4.60.070 is void. As Smith correctly notes, Puget
Sound predates CR 60 and all of the law construing it. More recently than 1895,
our Supreme Court has made it clear that
where a court has jurisdiction over the person and the subject matter, no error in the exercise of such jurisdiction can make the judgment void, and that a judgment rendered by a court of competent jurisdiction is not void merely because there are irregularities or errors of law in connection therewith. This is true even if there is a fundamental error of law appearing upon the face of the record. Such a judgment is, under proper circumstances, voidable, but until avoided is regarded as valid.
Dike, 75 Wn.2d at 8 (quoting Robertson v. Commonwealth of Va., 181 Va. 520,
536, 25 S.E.2d 352 (1943)). Puget Sound suffers from the same fault that
plagued this court for many years: interchangeable use of the words “void” and
“voidable.” 10 Wash. at 503-04. As we explained in Rabbage v. Lorella, 5 Wn.
4 No. 85512-3-I/5
App. 2d 289, 298, 426 P.3d 768 (2018), a lack of caution in usage of the terms
“jurisdictional” and “void” frequently led to analytical errors that courts should be
wont to repeat. The court in Puget Sound did not exercise this caution, first
declaring that the judgments were “voidable, if at all, only by the creditors” and
later in its opinion declaring the judgments both “voidable” and “void” in the span
of a single paragraph. See 10 Wash. at 503-04. Given the modern
differentiation of terms, Puget Sound’s careless use of the word “void” does not
give rise to a need to ignore later Supreme Court holdings to the contrary.
Heberling also likens confessed judgments to CR 2A agreements, which
he contends are void when they fail to adhere to the requirements of the court
rule. We rejected this argument in Gates. In that case, the appellant argued that
the respondents failed to comply with the notice requirement for Insurance Fair
Conduct Act claims under RCW 48.30.015 and that the default judgment against
it was therefore void. Gates, 28 Wn. App. 2d at 278-79. We noted that Long v.
Harrold, 76 Wn. App. 317, 884 P.2d 934 (1994), which had held that CR 2A
agreements that fail to adhere to the rule are void, predated our decision in
Rabbage, and therefore no longer correctly reflected the applicable law. Gates,
28 Wn. App. 2d at 282 n.9. We reject Heberling’s argument for the same reason.
Because the trial court in this matter had both subject matter jurisdiction
and personal jurisdiction, the confessed judgment entered against Heberling was
5 No. 85512-3-I/6
not void. The trial court did not err by denying Heberling’s CR 60(b)(5) motion to
vacate the confessed judgment.2
III
Smith requests an award of attorney fees pursuant to RAP 18.9(a)
because, he asserts, Heberling’s appeal is frivolous. “This court may award
attorney fees to a party if the opposing party’s appeal is frivolous.” Childs v.
Allen, 125 Wn. App. 50, 58, 105 P.3d 411 (2004). However, an appeal is only
frivolous if 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).
Although we affirm the decision of the trial court, we cannot say that
Heberling’s appeal was so totally devoid of merit as to be frivolous.3 Accordingly,
we decline to award attorney fees to Smith.
Affirmed.
2 The trial court also determined that Heberling’s motion was untimely under CR 60(b)(1)
or (b)(4). Because Heberling did not move to vacate the judgment under CR 60(b)(1) or (b)(4), we need not address whether the motion was timely thereunder. 3 Indeed, although the opinion is 129 years old, Heberling does cite to a State Supreme
Court decision, Puget Sound, 10 Wash. 499, as authority in support of his position.
6 No. 85512-3-I/7
WE CONCUR: