IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AM IN KORAYTEM, No. 70831-7-1 Respondent,
v. UNPUBLISHED OPINION
STACEYA. KINCHEN, FILED: September 22, 2014 Appellant,
JANE DOE OCCUPANT,
Defendant.
Leach, J. — In this dispute arising from an unlawful detainer proceeding, Stacey
Kinchen appeals the denial of his CR 60(b) motion to vacate an order of summary
judgment awarding damages to his former landlord. Kinchen, appearing pro se both
below and on appeal, fails to address CR 60 and fails to appreciate the scope of
appellate review of an order denying a motion to vacate. His appeal is merely an
attempt to reach the substantive merits of the summary judgment order and other
orders that he did not appeal. Because Kinchen does not demonstrate that the trial
court abused its discretion in denying his motion, we affirm.
FACTS
In January 2012, Amin Koraytem filed an eviction summons and complaint for
unlawful detainer proceeding against Stacey Kinchen, who occupied a duplex in Everett No. 70831-7-1/2
owned by Koraytem.1 Kinchen answered the complaint and also filed a separate
"response" to the complaint, together with several exhibits.
After a show cause hearing in March 2012, the parties signed an agreed order
settling the unlawful detainer action. The agreed order restored possession of the
premises to Koraytem but allowed additional time for Kinchen to remove his personal
possessions. The order also reserved for future proceedings the financial issues of
unpaid rent, late charges, damages, and attorney fees and costs.
In May 2012, the trial court granted Koraytem's motion to convert the unlawful
detainer complaint to a civil action. In June 2012, Koraytem filed a motion for summary
judgment, seeking $9,433 in unpaid rent and fees, reimbursement for repair and
cleaning costs, and legal fees and costs. Kinchen filed a late response and failed to
appear at the hearing on the motion. On July 25, 2012, the court granted the motion
and entered judgment for $9,433.
Exactly one year later, on July 25, 2013, Kinchen filed a motion under CR 60(b)
to vacate the judgment. The court commissioner denied the motion, concluding that
Kinchen had not shown any reason to set aside the judgment. Kinchen filed a motion to
revise the commissioner's order. The superior court denied the motion. Kinchen
appeals.
1 Michelle Jackson Kinchen cosigned the lease in 2010, but it does not appear she was living at the leased premises at the time of the 2012 unlawful detainer action. The complaint names a "Jane Doe Occupant." No. 70831-7-1/3
ANALYSIS
Kinchen's briefing before this court raises numerous claims pertaining to (1) the
commencement of the unlawful detainer proceeding, (2) conversion of the proceeding
under the unlawful detainer statute to a civil claim, and (3) various aspects of the 2012
judgment for damages. However, the scope of this appeal is limited to the orders
denying his motion to vacate and his motion for revision.
CR 60(b) provides that a "court may relieve a party . . . from a final judgment,
order, or proceeding" under specified circumstances. The rule exists to prevent
injustices based on "reasons extraneous to the action of the court or for matters
affecting the regularity of the proceedings."2
Generally, we will not reverse the superior court's denial of a motion to vacate
under CR 60(b) unless the court manifestly abused its discretion.3 A trial court abuses
its discretion when its decision is manifestly unreasonable or based on untenable
grounds.4 CR 60(b)(5) addresses the vacation of a void judgment. Because courts
"have a mandatory, nondiscretionary duty to vacate void judgments," we review de novo
the trial court's decision to grant or deny a CR 60(b) motion to vacate a void judgment.5
When a party appeals an order denying revision of a court commissioner's decision, we
review only the decision of the superior court.6
2 State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982). 3 Haley v. Highland, 142Wn.2d 135, 156, 12 P.3d 119(2000). 4 Mayer v.Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). 5 Dobbins v. Mendoza, 88 Wn. App. 862, 871, 947 P.2d 1229 (1997). 6 In re Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010). No. 70831-7-1/4
Unlike an appeal, a CR 60(b) motion is not a means of correcting errors of law.7
Thus, contrary to Kinchen's apparent belief, his appeal of the order denying his motion
to vacate does not allow him to raise legal issues about the summary judgment order he
seeks to vacate.8
Kinchen does not address CR 60 in this appeal or explain how the alleged errors
he raises relate to any specific provisions of the rule. He mentions, in passing, the
discretionary standard of review for appellate review of the superior court's decision on
such a motion but fails to apply that standard.
In his motion to vacate filed below, Kinchen cited CR 60(b)(1), (5), (6), and (11).
Kinchen asserted that the judgment was void. He claimed he was entitled to relief from
judgment on account of "excusable neglect" and "unavoidable casualty" due to his pro
se status and unfamiliarity with timelines for responses to motions and because
circumstances beyond his control—bad traffic—caused him to miss the summary
judgment hearing. Kinchen argued that he had "justiciable" defenses to the claim for
damages. Specifically, he claimed that the landlord's failure to provide a "move-out
checklist" prevented the landlord from retaining his security deposit or seeking
additional damages. Kinchen also alleged that the landlord was not entitled to recover
funds paid for repair and clean-up work because a handyman, not a registered
contractor, performed the work. In an accompanying declaration, Kinchen asserted that
Koraytem failed to notify him properly of the summary judgment hearing and challenged
7 Burlingame v. Consol. Mines & Smelting Co., 106 Wn.2d 328, 336, 722 P.2d 67 (1986). 8 See Biurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980). No. 70831-7-1/5
the unlawful detainer proceeding on the basis that Koraytem, rather than a disinterested
third party, served him with the three-day pay or vacate notice.
The court did not abuse its discretion in determining that Kinchen's unawareness
of deadlines and unexpected traffic were not circumstances that amount to a mistake,
inadvertence, surprise, excusable neglect, or irregularity under CR 60(b)(1); nor did
those issues rise to the level of extraordinary circumstances under CR 60(b)(11).9 The
court also did not abuse its discretion in denying his motion to the extent it was based
upon CR 60(b)(5) because he stated no basis for his assertion that the judgment is void.
The other arguments Kinchen raised implicate the superior court's interpretation of
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AM IN KORAYTEM, No. 70831-7-1 Respondent,
v. UNPUBLISHED OPINION
STACEYA. KINCHEN, FILED: September 22, 2014 Appellant,
JANE DOE OCCUPANT,
Defendant.
Leach, J. — In this dispute arising from an unlawful detainer proceeding, Stacey
Kinchen appeals the denial of his CR 60(b) motion to vacate an order of summary
judgment awarding damages to his former landlord. Kinchen, appearing pro se both
below and on appeal, fails to address CR 60 and fails to appreciate the scope of
appellate review of an order denying a motion to vacate. His appeal is merely an
attempt to reach the substantive merits of the summary judgment order and other
orders that he did not appeal. Because Kinchen does not demonstrate that the trial
court abused its discretion in denying his motion, we affirm.
FACTS
In January 2012, Amin Koraytem filed an eviction summons and complaint for
unlawful detainer proceeding against Stacey Kinchen, who occupied a duplex in Everett No. 70831-7-1/2
owned by Koraytem.1 Kinchen answered the complaint and also filed a separate
"response" to the complaint, together with several exhibits.
After a show cause hearing in March 2012, the parties signed an agreed order
settling the unlawful detainer action. The agreed order restored possession of the
premises to Koraytem but allowed additional time for Kinchen to remove his personal
possessions. The order also reserved for future proceedings the financial issues of
unpaid rent, late charges, damages, and attorney fees and costs.
In May 2012, the trial court granted Koraytem's motion to convert the unlawful
detainer complaint to a civil action. In June 2012, Koraytem filed a motion for summary
judgment, seeking $9,433 in unpaid rent and fees, reimbursement for repair and
cleaning costs, and legal fees and costs. Kinchen filed a late response and failed to
appear at the hearing on the motion. On July 25, 2012, the court granted the motion
and entered judgment for $9,433.
Exactly one year later, on July 25, 2013, Kinchen filed a motion under CR 60(b)
to vacate the judgment. The court commissioner denied the motion, concluding that
Kinchen had not shown any reason to set aside the judgment. Kinchen filed a motion to
revise the commissioner's order. The superior court denied the motion. Kinchen
appeals.
1 Michelle Jackson Kinchen cosigned the lease in 2010, but it does not appear she was living at the leased premises at the time of the 2012 unlawful detainer action. The complaint names a "Jane Doe Occupant." No. 70831-7-1/3
ANALYSIS
Kinchen's briefing before this court raises numerous claims pertaining to (1) the
commencement of the unlawful detainer proceeding, (2) conversion of the proceeding
under the unlawful detainer statute to a civil claim, and (3) various aspects of the 2012
judgment for damages. However, the scope of this appeal is limited to the orders
denying his motion to vacate and his motion for revision.
CR 60(b) provides that a "court may relieve a party . . . from a final judgment,
order, or proceeding" under specified circumstances. The rule exists to prevent
injustices based on "reasons extraneous to the action of the court or for matters
affecting the regularity of the proceedings."2
Generally, we will not reverse the superior court's denial of a motion to vacate
under CR 60(b) unless the court manifestly abused its discretion.3 A trial court abuses
its discretion when its decision is manifestly unreasonable or based on untenable
grounds.4 CR 60(b)(5) addresses the vacation of a void judgment. Because courts
"have a mandatory, nondiscretionary duty to vacate void judgments," we review de novo
the trial court's decision to grant or deny a CR 60(b) motion to vacate a void judgment.5
When a party appeals an order denying revision of a court commissioner's decision, we
review only the decision of the superior court.6
2 State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982). 3 Haley v. Highland, 142Wn.2d 135, 156, 12 P.3d 119(2000). 4 Mayer v.Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). 5 Dobbins v. Mendoza, 88 Wn. App. 862, 871, 947 P.2d 1229 (1997). 6 In re Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010). No. 70831-7-1/4
Unlike an appeal, a CR 60(b) motion is not a means of correcting errors of law.7
Thus, contrary to Kinchen's apparent belief, his appeal of the order denying his motion
to vacate does not allow him to raise legal issues about the summary judgment order he
seeks to vacate.8
Kinchen does not address CR 60 in this appeal or explain how the alleged errors
he raises relate to any specific provisions of the rule. He mentions, in passing, the
discretionary standard of review for appellate review of the superior court's decision on
such a motion but fails to apply that standard.
In his motion to vacate filed below, Kinchen cited CR 60(b)(1), (5), (6), and (11).
Kinchen asserted that the judgment was void. He claimed he was entitled to relief from
judgment on account of "excusable neglect" and "unavoidable casualty" due to his pro
se status and unfamiliarity with timelines for responses to motions and because
circumstances beyond his control—bad traffic—caused him to miss the summary
judgment hearing. Kinchen argued that he had "justiciable" defenses to the claim for
damages. Specifically, he claimed that the landlord's failure to provide a "move-out
checklist" prevented the landlord from retaining his security deposit or seeking
additional damages. Kinchen also alleged that the landlord was not entitled to recover
funds paid for repair and clean-up work because a handyman, not a registered
contractor, performed the work. In an accompanying declaration, Kinchen asserted that
Koraytem failed to notify him properly of the summary judgment hearing and challenged
7 Burlingame v. Consol. Mines & Smelting Co., 106 Wn.2d 328, 336, 722 P.2d 67 (1986). 8 See Biurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980). No. 70831-7-1/5
the unlawful detainer proceeding on the basis that Koraytem, rather than a disinterested
third party, served him with the three-day pay or vacate notice.
The court did not abuse its discretion in determining that Kinchen's unawareness
of deadlines and unexpected traffic were not circumstances that amount to a mistake,
inadvertence, surprise, excusable neglect, or irregularity under CR 60(b)(1); nor did
those issues rise to the level of extraordinary circumstances under CR 60(b)(11).9 The
court also did not abuse its discretion in denying his motion to the extent it was based
upon CR 60(b)(5) because he stated no basis for his assertion that the judgment is void.
The other arguments Kinchen raised implicate the superior court's interpretation of
provisions of the Washington Residential Landlord-Tenant Act of 1973, chapter 59.18
RCW, and other alleged legal errors underlying the judgment. As explained, the
"exclusive procedure to attack an allegedly defective judgment is by appeal from the
judgment, not by appeal from a denial of a CR 60(b) motion."10 "Said another way, an
unappealed final judgment cannot be restored to an appellate track by means of moving
to vacate and appealing the denial of the motion."11
In essence, Kinchen claims that the entry of summary judgment is premised on
various legal errors. This claim does not fall within the scope of appellate review of an
order denying a motion to vacate. Kinchen has not identified any grounds under CR
60(b) that warrant relief or established that the trial court abused its discretion in
9 See In re Marriage of Yearout. 41 Wn. App. 897, 902, 707 P.2d 1367 (1985) (relief under CR 60(b)(11) is limited to extraordinary circumstances not covered by any other section of the rule). 10 Biurstrom, 27 Wn. App. at 451. 11 State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). -5- No. 70831-7-1/6
denying the motion to vacate.12 In addition, Koraytem is entitled under the lease to
reasonable costs and attorney fees on appeal.13 Upon compliance with RAP 18.1, a
commissioner of this court will enter an appropriate order.
Affirmed.
WE CONCUR:
z_y .
12 Kinchen filed several motions that this court has addressed in previous rulings and orders. On November 6, 2013, a commissioner of this court referred Kinchen's motion to supplement the record under RAP 9.11 to the panel. Having considered that motion, we deny it. Some of the evidence Kinchen identifies is, in fact, included in the record on appeal. Kinchen otherwise fails to satisfy the standards for supplementing the record under the rule. 13 The lease provision provides that "in the event it becomes necessary for any party to institute any litigation to enforce any of the terms and provisions of this Agreement, the prevailing party in such litigation shall be entitled to recover the reasonable costs and expenses of such litigation, including but not limited to reasonable attorney's fees."