AGAMERICA, FCB v. NELSON, 18722-5-III (Wash.App. 10-18-2001)


AgAMERICA, FCB, a corporation, successor by merger to The Federal Land Bank of Spokane, Plaintiff v. GEORGE J. NELSON and JOAN E. NELSON, husband and wife; and as directors of Crown J Cattle Company, Inc., a dissolved Washington corporation; CROWN J CATTLE COMPANY, INC., a dissolved Washington corporation, Appellants, THE UNITED STATES OF AMERICA, acting through the Farmers Home Administration, United States Department of Agriculture, and acting by and through the Small Business Administration, and acting by and through the Internal Revenue Service, Department of Treasury, Respondent, ROY W. TAYLOR, an individual; WILLIAM T. DIKEMAN and SHARON DIKEMAN, husband and wife; PAUL HARREL and MARJORIE H. HARREL, husband and wife, d/b/a Willow Brook Farms; UNIVERSITY AUTO CENTER, a Washington partnership; RICHARD HEATHMAN and CATHY HEATHMAN, husband and wife; METROPOLITAN MORTGAGE AND SECURITIES CO., INC., a Washington corporation; EARL V. ELKINGTON and BARBARA L. ELKINGTON, husband and wife; HOWARD F. CLERF, an individual; LATHROP WINBAUER, a professional partnership; J. PATRICK GRAY, as Chapter 12 Trustee for the Eastern District of Washington; OLYMPIC CREDIT SERVICE, INC., a Washington corporation; THE STATE OF WASHINGTON, acting by and through the Department of Revenue; NORTHWEST FARM CREDIT SERVICES, AGRICULTURAL CREDIT ASSOCIATION, successor in merger to the Interstate Federal Land Bank Association, a federally chartered corporation; and all other persons and parties unknown claiming any right, title, estate, lien or interest in the property described herein, Defendants.

No. 18722-5-III, consolidated with 19311-0-III.The Court of Appeals of Washington, Division Three. Panel One.
Filed: October 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Kittitas County, No. 95-2-00288-1, Hon. Michael E. Cooper, August 16, 1999, Judgment or order under review.

Counsel for Appellant(s), George J. Nelson (Appearing Pro Se), 5380 Wilson Creek Road, Ellensburg, WA 98926.

Joan Nelson (Appearing Pro Se), 5380 Wilson Creek Road, Ellensburg, WA 98926.

Counsel for Respondent(s), James R. Shively, U S Department of Justice, P.O. Box 1494, Spokane, WA 99210.

William H. Beatty, Us Attorney’s Office, 920 W Riverside Suite 300, P.O. Box 1494, Spokane, WA 99210-1494.

DENNIS J. SWEENEY, J.

AgAmerica foreclosed on George and Joan Nelson’s property. The property was auctioned on May 31, 1996. The United States redeemed the property a year later on June 2, 1997, a Monday. The Nelsons sought to void the redemption through a CR 60(b) motion to vacate, arguing that the redemption period actually expired on May 31, 1997, a Saturday. The trial court denied their motion.

We review the denial of a motion to vacate for an abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). Here, the trial court denied the Nelsons’ motion because it was untimely and did not provide the sought after relief — both of which are tenable reasons. Moreover, we conclude that, based on Stikes Woods Neighborhood Ass’n v. City of Lacey,[1] the Farmers Home Administration’s redemption was timely because the Civil Rules of Procedure exclude final Saturdays when calculating the time period for filing a foreclosure redemption. We affirm.

FACTS
AgAmerica, an agricultural lender, began an action to foreclose its real estate mortgage on George and Joan Nelson’s property on August 9, 1995. The United States of America, acting through the Farmers Home Administration (FmHA), held a junior mortgage on the property.

On March 1, 1996, the superior court entered a decree of foreclosure in favor of AgAmerica and an order directing the sheriff to sell the property. The property was sold to a third party, Howard and Vivian Clerf, on May 31, 1996.

The FmHA redeemed the property by paying the sheriff on June 2, 1997 — a Monday. The sheriff issued FmHA a deed on January 9, 1998. The Nelsons did not vacate the property and were eventually ordered off through an unlawful detainer action in federal court.

The Nelsons moved to vacate the FmHA’s redemption under CR 60(b)(5) and (11) on March 15, 1999 — over 21 months after the FmHA redeemed the property. The trial court denied their motion. The Nelsons appeal.

Subsequently, the superior court granted the United States of America’s motion to require the Nelsons to post a supersedeas bond. The Nelsons also appeal the order requiring them to post a bond. MOTION TO VACATE THE FMHA’S REDEMPTION

The Nelsons contend that redemption must occur within one year of the date of sale. The property was sold on May 31, 1996. Thus, the one-year period expired on May 31, 1997. May 31, 1997, fell on a Saturday. In 1996, the year of the sale, RCW 1.12.040 (the statute used to compute deadlines) did not exclude Saturdays from calculation. Thus, the statutory period for redemption expired on May 31, 1997. They argue then that the court erred by allowing the FmHA to redeem the property on June 2, 1997 — the following Monday.

`A trial court’s denial of a motion to vacate under CR 60(b) will not be overturned on appeal unless the court manifestly abused its discretion.’ Haley, 142 Wn.2d at 156. A trial court abuses its discretion by relying on untenable grounds or untenable reasons. Pederson’s Fryer Farms, Inc. v. Transamerica Ins. Co., 83 Wn. App. 432, 454, 922 P.2d 126 (1996).

The Nelsons moved to vacate the judgment under CR 60(b)(5) and (11). CR 60(b)(5) authorizes the trial court to vacate a void judgment. CR 60(b)(11) allows vacation for ‘[a]ny other reason justifying relief from the operation of the judgment.’ CR 60(b)(5) — Void Judgment

Review of this question is de novo. Dobbins v. Mendoza, 88 Wn. App. 862, 871, 947 P.2d 1229 (1997). A judgment is void when the court lacks jurisdiction of the parties, lacks jurisdiction of the subject matter, or lacks the inherent power to enter the particular order involved. Bresolin v. Morris, 86 Wn.2d 241, 245, 543 P.2d 325 (1975), supplemented, 88 Wn.2d 167, 558 P.2d 1350 (1977). When a judgment is void, a court has a nondiscretionary duty to vacate. In re Marriage of Leslie, 112 Wn.2d 612, 618-19, 772 P.2d 1013 (1989).

The Nelsons do not challenge the trial court’s jurisdiction or inherent authority to enter the judgment in favor of AgAmerica. Nor is there any reason to believe that the court lacked jurisdiction or power. Thus, the court correctly denied the Nelsons’ motion to vacate under CR 60(b)(5). CR 60(b)(11) — Extraordinary Circumstances

CR 60(b)(11) may be used to reopen a judgment only in `extraordinary circumstances.’ Wagers v. Goodwin, 92 Wn. App. 876, 881, 964 P.2d 1214
(1998).

The Nelsons’ brief is devoted entirely to arguing why the redemption period ended on May 31, 1997, and not June 2, 1997. They offer no reason, or extraordinary circumstance, as to why the underlying judgment in favor of AgAmerica should be vacated.

The trial court, in its memorandum opinion, explained why it denied the Nelsons’ motion to vacate:

The defendants Nelsons’ motion for relief must be denied for several reasons. First, CR 60(b)(5) and (11), in the court’s opinion does not apply to give Nelsons the relief they seek. Both subsections of that rule provide a vehicle to seek relief from the operation of a judgment. Here, Nelsons are not seeking relief from judgment in any way. The judgment was rendered against them on March 1, 1996. They chose not to appeal from that judgment. Moreover, the statutory right of redemption afforded them as the judgment debtor expired either on May 31, 1997 or June 2, 1997 and they chose not to redeem. They sought no further relief from the operation of the law against them until they collaterally attacked the redemption by one of their creditors some 22 months later. As to the Nelsons, they had full opportunity to avail themselves of all opportunities afforded them under the law and they elected not to act. They cannot act now.

Clerk’s Papers (CP) at 352-53. Essentially, the trial court concluded that the Nelsons’ motion was not brought within a reasonable time as required by CR 60(b). CR 60(b) (`motion shall be made within a reasonable time’); see State ex rel. Campbell v. Cook, 86 Wn. App. 761, 766, 938 P.2d 345 (1997) (the facts and circumstances of the case determine what constitutes a reasonable time).

In sum, the trial court’s refusal to vacate the judgment was based on tenable grounds — the Nelsons were not attacking the judgment and, in any event, the Nelsons failed to bring the motion in a timely manner. The court did not then err by denying the Nelsons’ motion to vacate under CR 60(b)(5) and (11).

CALCULATION OF TIME PERIOD FOR REDEMPTION
In any event, we hold that the FmHA’s redemption was timely. Former RCW 1.12.040 (1887) stated:

The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday or Sunday, and then it is also excluded.

The statute has been amended and now excludes final Saturdays as well as final Sundays and holidays. RCW 1.12.040 (Laws of 1997, ch. 125, § 1).

The redemption period expired on Saturday, May 31, 1997, under a strict reading of RCW 1.12.040 as it existed at the time of the sale. However, our Supreme Court ruled that former RCW 1.12.040 was superseded by CR 6(a)2 for purposes of computing the statute of limitations — prior to the statute’s amendment. Stikes Woods Neighborhood Ass’n v. City of Lacey, 124 Wn.2d 459, 463, 880 P.2d 25 (1994).

There, the court held that computing the statute of limitations for a cause of action should “be carried out in an easy, clear, and consistent manner, thereby eliminating traps for the unwary who seek to assert or defend their rights.” Stikes, 124 Wn.2d at 463 (quoting McMillon v. Budget Plan, 510 F. Supp. 17, 19 (E.D.Va. 1980)). The court determined that the legislative intent behind RCW 1.12.040 is to `provide the greatest degree of fairness to claimants by allowing for filing on the next business day when the period of limitations expires on a day of court closure.’ Stikes, 124 Wn.2d at 465. The court concluded that RCW 1.12.040 was superseded by CR 6(a) insofar that final Saturdays were also excluded from calculation. Stikes, 124 Wn.2d at 466.

Here, the trial court saw `no difference between the time period involved in Stikes and the time period involved in the redemption statute. . . .’ CP at 353. We agree.

The Civil Rules, and therefore CR 6(a), apply to these facts. The Nelsons’ motion on appeal was made under CR 60(b). Moreover, the same policy reasons behind Stikes (providing fairness to claimants through an easy, clear method of calculating the time period) are equally applicable to the filing of a foreclosure redemption.

The Nelsons argue that Stikes is not applicable because while courthouses are closed on Saturdays (thus making it impossible to file a complaint), sheriffs’ offices are open on Saturdays — thereby making a redemption possible. But whether the sheriff’s office was actually open misses the point. The rationale behind Stikes is that the computation of time limits should be simple and fair. Stikes, 124 Wn.2d at 465. Forcing parties to guess which government offices may or may not be open on Saturday does not make computation easy or fair.

We conclude that the policy underlying the Stikes decision is equally applicable to the present case, and the FmHA’s redemption was therefore timely.

REQUIREMENT TO POST A SUPERSEDEAS BOND
We will not consider an assignment of error that is not briefed and supported with argument. In re Detention of A.S., 138 Wn.2d 898, 922 n. 10, 982 P.2d 1156 (1999); Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 191, 829 P.2d 1061 (1992).

The Nelsons present no briefing on this issue or citation to authority. The issue is therefore waived.

We affirm.

A majority of the panel has determined that 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.

WE CONCUR: BROWN, A.C.J., KATO, J.

[1] 124 Wn.2d 459, 463, 880 P.2d 25 (1994). 2 CR 6(a) provides, in relevant part: `The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday.’