IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TERRACE15, LLC, a Washington limited liability company, No. 82405-8-I (consolidated with no. 81448-6-I) Respondent, DIVISION ONE v. SYS INC.; SUSANN W. KIM and UNPUBLISHED OPINION JOHN DOE KIM, individually and the marital community thereof; and JOHN and JANE DOES 1-10,
Defendants,
MR. YONG S. KIM and JANE DOE KIM, and the marital community thereof,
Appellants.
APPELWICK, J. — The trial court granted summary judgment for Terrace15
on a breach of contract claim after Yong failed to respond to the motion. Yong
moved to vacate the summary judgment based on excusable neglect. He also
attempted to vacate the default issued against his sister who was an additional
defendant in the suit. The court denied his requests. We affirm.
FACTS
Terrace15 LLC filed a complaint for breach of contract against Yong Kim
and Susann Kim in December 2018. Terrace15 sought payment of $100,000
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82405-8-I/2
earnest money after a failed commercial purchase and sale agreement. Yong1
filed an answer as well as affirmative defenses and cross-claims against Susann.
Susann did not appear.
In February 2019, Terrace15 moved for an order of default against Susann.
The trial court granted the motion and entered an order of default against Susann.
Susann never appealed or moved to vacate the default against her.
Yong’s attorney withdrew from representation in May 2019.
On August 13, 2019, Terrace15 moved for summary judgment with the
hearing noted for September 13, 2019. Yong did not file a response to the motion.
Instead, Yong’s new attorney filed a motion to continue on September 11, 2019.
The court granted the continuance “provided Defendant shall make greater effort
to comply with the court schedule.” The court also imposed $10,000 in terms
against Yong payable to Terrace15.
In November 2019, Yong moved for an order of default against Susann
because she failed to appear on his cross-claim. The trial court granted the motion
and entered an order of default against Susann in December 2019. The court
concluded, inter alia, that “as a result of Cross-Claim Defendant Susann Kim’s
fraud that she acted as if she had been a rightful agent or representative” for
Yong’s company, Susann was liable to Yong for all damages proximately caused
by her fraudulent actions. Yong’s second attorney withdrew soon after.
1Yong Kim and Susann Kim are siblings. For clarity we refer to the defendants by their first names. We mean no disrespect.
2 No. 82405-8-I/3
On March 6, 2020, Terrace15 again moved for summary judgment on the
breach of contract with a hearing noted for April 10, 2020. Yong did not file a
response. But, Susann attempted to file documents with the court on April 9, 2020.
The filing included a declaration claiming that Yong was not involved in the
purchase and sale agreement and was unfairly “pulled into this lawsuit without
having any prior knowledge on the even [sic] existence of the disputed
transaction.”
Upon consideration of Terrace15’s motion for summary judgment, the trial
court noted that Yong had failed to submit a response and that Susann had
attempted to submit untimely documents that did not comply with the requirements
of court rules CR 5, CR 7, and CR 11. The court concluded that due to the orders
of default against her, Susann did not have standing in the matter and declined to
consider her untimely submissions. The trial court granted summary judgment
against Yong and determined that Yong and Susann were jointly and severally
liable for the earnest money, prejudgment interest, and attorney fees and costs.
The court entered judgment for Terrace15 in the amount of $133,781.09.
Yong secured new counsel in early May 2020. Yong filed a motion for
discretionary review with this court. In September 2020, Yong requested leave to
file a motion to vacate the judgment in the superior court. A commissioner of this
court issued a stay pending the trial court’s consideration of Yong’s motion to
vacate the judgment.
3 No. 82405-8-I/4
Yong filed a CR 60(b) motion to vacate the summary judgment and
judgment against him. The trial court conducted a hearing on the motion to vacate.
Yong appeared represented by counsel and Susann appeared pro se. The trial
court noted that Susann did not have any right to argue before the court because
she had not submitted a written pleading and had been defaulted in the case. Yong
claimed that the order of default was improperly entered against Susann because
she had appeared informally and had been entitled to notice of the motion for
default. He also argued for vacation of the summary judgment based on excusable
neglect. According to Yong, Susann had agreed to “handle” the issues pertaining
to the lawsuit. The trial court denied the motion to vacate the summary judgment
and awarded Terrace15 additional attorney fees and costs. The court stated,
“[T]his is just gamesmanship. That’s all I see this as. It’s a way to manipulate and
delay, obfuscate the record, confuse the Court of Appeals. Enough.”
Yong filed a notice of appeal which was consolidated with the motion for
discretionary review.
DISCUSSION
I. Default Judgment
Yong argues the trial court lacked jurisdiction to enter a default judgment
against Susann because more than one year had passed since the service of the
summons and complaint. But, the validity of the judgment against Susann is not
Yong’s issue to appeal. “A litigant cannot assert the legal rights of another person.”
Forbes v. Pierce County, 5 Wn. App. 2d 423, 433, 427 P.3d 675 (2018). Only
Susann may exercise the right to appellate review of the judgment against her.
4 No. 82405-8-I/5
Susann did not seek review of the decision. Therefore, we will not address the
merits of this issue.
II. Summary Judgment
Yong claims the trial court erred by granting summary judgment for
Terrace15 because there are existing factual issues.2 Summary judgment is
appropriate when there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Folsom v. Burger King, 135 Wn.2d 658,
663, 958 P.2d 301 (1998). To defeat summary judgment, the opposing party must
set forth specific facts showing a genuine issue of material fact. Newton Ins.
Agency & Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 157, 52
P.3d 30 (2002). We review orders on summary judgment de novo. Kim v.
Lakeside Adult Family Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016).
Yong did not file a response to Terrace15’s motion for summary judgment.
As a result, Yong failed to set forth specific facts or issues of law to defeat summary
judgment. Terrace15 was entitled to judgment as a matter of law.
Yong argues that Susann submitted declarations in response to the
summary judgment and the trial court erred by refusing to consider the evidence.
“A trial court’s decision to admit or exclude evidence lies within its sound
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TERRACE15, LLC, a Washington limited liability company, No. 82405-8-I (consolidated with no. 81448-6-I) Respondent, DIVISION ONE v. SYS INC.; SUSANN W. KIM and UNPUBLISHED OPINION JOHN DOE KIM, individually and the marital community thereof; and JOHN and JANE DOES 1-10,
Defendants,
MR. YONG S. KIM and JANE DOE KIM, and the marital community thereof,
Appellants.
APPELWICK, J. — The trial court granted summary judgment for Terrace15
on a breach of contract claim after Yong failed to respond to the motion. Yong
moved to vacate the summary judgment based on excusable neglect. He also
attempted to vacate the default issued against his sister who was an additional
defendant in the suit. The court denied his requests. We affirm.
FACTS
Terrace15 LLC filed a complaint for breach of contract against Yong Kim
and Susann Kim in December 2018. Terrace15 sought payment of $100,000
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82405-8-I/2
earnest money after a failed commercial purchase and sale agreement. Yong1
filed an answer as well as affirmative defenses and cross-claims against Susann.
Susann did not appear.
In February 2019, Terrace15 moved for an order of default against Susann.
The trial court granted the motion and entered an order of default against Susann.
Susann never appealed or moved to vacate the default against her.
Yong’s attorney withdrew from representation in May 2019.
On August 13, 2019, Terrace15 moved for summary judgment with the
hearing noted for September 13, 2019. Yong did not file a response to the motion.
Instead, Yong’s new attorney filed a motion to continue on September 11, 2019.
The court granted the continuance “provided Defendant shall make greater effort
to comply with the court schedule.” The court also imposed $10,000 in terms
against Yong payable to Terrace15.
In November 2019, Yong moved for an order of default against Susann
because she failed to appear on his cross-claim. The trial court granted the motion
and entered an order of default against Susann in December 2019. The court
concluded, inter alia, that “as a result of Cross-Claim Defendant Susann Kim’s
fraud that she acted as if she had been a rightful agent or representative” for
Yong’s company, Susann was liable to Yong for all damages proximately caused
by her fraudulent actions. Yong’s second attorney withdrew soon after.
1Yong Kim and Susann Kim are siblings. For clarity we refer to the defendants by their first names. We mean no disrespect.
2 No. 82405-8-I/3
On March 6, 2020, Terrace15 again moved for summary judgment on the
breach of contract with a hearing noted for April 10, 2020. Yong did not file a
response. But, Susann attempted to file documents with the court on April 9, 2020.
The filing included a declaration claiming that Yong was not involved in the
purchase and sale agreement and was unfairly “pulled into this lawsuit without
having any prior knowledge on the even [sic] existence of the disputed
transaction.”
Upon consideration of Terrace15’s motion for summary judgment, the trial
court noted that Yong had failed to submit a response and that Susann had
attempted to submit untimely documents that did not comply with the requirements
of court rules CR 5, CR 7, and CR 11. The court concluded that due to the orders
of default against her, Susann did not have standing in the matter and declined to
consider her untimely submissions. The trial court granted summary judgment
against Yong and determined that Yong and Susann were jointly and severally
liable for the earnest money, prejudgment interest, and attorney fees and costs.
The court entered judgment for Terrace15 in the amount of $133,781.09.
Yong secured new counsel in early May 2020. Yong filed a motion for
discretionary review with this court. In September 2020, Yong requested leave to
file a motion to vacate the judgment in the superior court. A commissioner of this
court issued a stay pending the trial court’s consideration of Yong’s motion to
vacate the judgment.
3 No. 82405-8-I/4
Yong filed a CR 60(b) motion to vacate the summary judgment and
judgment against him. The trial court conducted a hearing on the motion to vacate.
Yong appeared represented by counsel and Susann appeared pro se. The trial
court noted that Susann did not have any right to argue before the court because
she had not submitted a written pleading and had been defaulted in the case. Yong
claimed that the order of default was improperly entered against Susann because
she had appeared informally and had been entitled to notice of the motion for
default. He also argued for vacation of the summary judgment based on excusable
neglect. According to Yong, Susann had agreed to “handle” the issues pertaining
to the lawsuit. The trial court denied the motion to vacate the summary judgment
and awarded Terrace15 additional attorney fees and costs. The court stated,
“[T]his is just gamesmanship. That’s all I see this as. It’s a way to manipulate and
delay, obfuscate the record, confuse the Court of Appeals. Enough.”
Yong filed a notice of appeal which was consolidated with the motion for
discretionary review.
DISCUSSION
I. Default Judgment
Yong argues the trial court lacked jurisdiction to enter a default judgment
against Susann because more than one year had passed since the service of the
summons and complaint. But, the validity of the judgment against Susann is not
Yong’s issue to appeal. “A litigant cannot assert the legal rights of another person.”
Forbes v. Pierce County, 5 Wn. App. 2d 423, 433, 427 P.3d 675 (2018). Only
Susann may exercise the right to appellate review of the judgment against her.
4 No. 82405-8-I/5
Susann did not seek review of the decision. Therefore, we will not address the
merits of this issue.
II. Summary Judgment
Yong claims the trial court erred by granting summary judgment for
Terrace15 because there are existing factual issues.2 Summary judgment is
appropriate when there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Folsom v. Burger King, 135 Wn.2d 658,
663, 958 P.2d 301 (1998). To defeat summary judgment, the opposing party must
set forth specific facts showing a genuine issue of material fact. Newton Ins.
Agency & Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 157, 52
P.3d 30 (2002). We review orders on summary judgment de novo. Kim v.
Lakeside Adult Family Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016).
Yong did not file a response to Terrace15’s motion for summary judgment.
As a result, Yong failed to set forth specific facts or issues of law to defeat summary
judgment. Terrace15 was entitled to judgment as a matter of law.
Yong argues that Susann submitted declarations in response to the
summary judgment and the trial court erred by refusing to consider the evidence.
“A trial court’s decision to admit or exclude evidence lies within its sound
discretion.” Int’l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App.
2Additionally, Yong argues that vacation of the summary judgment order against Susann necessarily requires vacation as to him. Because we do not address the merits or vacate the judgment against Susann, we also decline to vacate the judgment against Yong on this ground.
5 No. 82405-8-I/6
736, 744, 87 P.3d 774 (2004). We will not overturn the trial court’s evidentiary
rulings absent a manifest abuse of discretion. Id.
According to Yong, the trial court failed to examine the Burnet3 factors in
determining whether to exclude the evidence. Yong cites to Keck v. Collins, 184
Wn.2d 358, 368-69, 357 P.3d 1080 (2015), in support of the claim that the court
should have applied the Burnet factors. In Keck, a plaintiff seeking damages for
medical malpractice submitted an untimely affidavit from a medical expert in an
attempt to ward off summary judgment. Keck, 184 Wn.2d at 366. The trial court
declined to consider the evidence and granted summary judgment for defendants.
Id. 366-67. The Washington Supreme Court reversed, determining that a trial court
should consider the Burnet factors when excluding untimely evidence submitted in
response to a summary judgment motion. Id. at 369.
This case differs significantly from Keck. Susann was not an opposing party
to the motion for summary judgment. As noted by the trial court, Susann was a
defaulted party with orders of default entered against her by both Terrace15 and
Yong. As a defaulted party who had failed to appear, Susann “may not respond
to the pleading nor otherwise defend without leave of court.” CR 55(a)(2). Susann
neither requested nor received leave to file the untimely documents. Susann was
not entitled to participate in the summary judgment proceedings. The trial court
3 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). Before excluding evidence that would affect a party’s ability to present its case, a trial court must consider the three Burnet factors: whether a lesser sanction would suffice, whether the violation was willful or deliberate, and whether the violation substantially prejudice the opposing party. Keck v, Collins, 184 Wn.2d 358, 368-69, 357 P.3d 1080 (2015).
6 No. 82405-8-I/7
did not abuse its discretion by excluding Susann’s evidence without considering
the Burnet factors.
The trial court properly granted summary judgment for Terrace15.
III. Motion to Vacate
Yong contends the trial court improperly denied his CR 60(b)(1) motion to
vacate the summary judgment. A decision on a CR 60(b) motion is in the court’s
discretion and will not be reversed without a showing of abuse of discretion. In re
Vulnerable Adult Pet. for Winter, 12 Wn. App. 2d 815, 829, 460 P.3d 667, review
denied, 196 Wn.2d 1025, 476 P.2d 565 (2020). A court abuses its discretion if its
decision is manifestly unreasonable or based on untenable grounds or untenable
reasons. Id. This includes when “the trial court relies on unsupported facts, takes
a view that no reasonable person would take, applies the wrong legal standard, or
bases its ruling on an erroneous view of the law.” Gildon v. Simon Prop. Grp., Inc.,
158 Wn.2d 483, 494, 145 P.3d 1196 (2006).
Under CR 60(b)(1), “On motion and upon such terms as are just, the court
may relieve a party or the party’s legal representative from a final judgment” for
reasons including “[m]istakes, inadvertence, surprise, excusable neglect or
irregularity in obtaining a judgment or order.” Yong bases the motion to vacate on
excusable neglect. He claims he did not understand the legal documents because
English is not his native language, he thought the courts were shut down due to
COVID-19, and he thought Susann was handling the matter.
7 No. 82405-8-I/8
The trial court concluded that Yong’s actions were neglect rather than
excusable neglect. The court noted, “He doesn’t deny that he received the
documents.” The court further stated,
[H]e simply failed to respond to the motion for summary judgment, and there just isn’t any evidence whatsoever for his excusable neglect for filing any response to the summary judgment.
He was aware of it, so was the sister or why would we be getting these 11th hour declarations. And you can’t just pick and choose which deadlines you want to abide by or what is the point of having deadlines.
And, the court recognized that this was the second motion for summary judgment
Yong had failed to answer: “He doesn’t deny that he’s been through this not once
but twice. This happened back in September of 2019 and terms were awarded”
and a continuance granted. This fact undercuts any claim that Yong did not
understand the import of the motion or the potential consequences. The fact that
the papers served on him set a hearing date was adequate notice that the courts
were not shut down for COVID-19 as he claimed. Yong explains no basis for
relying on Susann, who was an adverse party against whom he had taken a
default, to act on his behalf. It is wholly understandable that the trial court
expressed the strong opinion that the failure to respond to the summary judgment
motion was not excusable.
The trial court did not abuse its discretion in denying the motion to vacate.
IV. Attorney Fees on Appeal
Terrace15 concludes its briefing with the statement “[a]dditional fees and
costs should be awarded to Respondent.” Terrace15 does not devote a section of
its briefing to the request as required by RAP 18.1(b). “The rule requires more
8 No. 82405-8-I/9
than a bald request for attorney fees on appeal.” Stiles v. Kearney, 168 Wn. App.
250, 267, 277 P.3d 9 (2012). Argument and citation to authority that is the basis
for the request is mandatory. Id. Because Terrace15 failed to satisfy these
requirements, we decline to award fees on appeal.
We affirm.
WE CONCUR: