No. 50542-4-I.The Court of Appeals of Washington, Division One.
Filed: March 31, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, Docket No: 96-2-20375-1 Judgment or order under review, Date filed: 05/30/2002.
Counsel for Appellant(s) Elaine Adairre Roche (Appearing Pro Se) 3200 130th Avenue N.E. Bellevue, WA 98005.
John Roche (Appearing Pro Se), 3200 130th Ave. N.E., Bellevue, WA 98005.
Counsel for Respondent(s), Robert G. Jr Nylander, Cutler Nylander, 505 Madison St. Ste 220, Seattle, WA 98104-1111.
Kenneth Wayne Hart, Larson Hart Shepherd, 600 University St. Ste 1730, Seattle, WA 98101-3150.
SCHINDLER, J.
Elaine Adairre Roche and John Roche appeal the trial court’s order denying their motion to vacate the judgment entered against them. The Roches argue that the judgment should be vacated because the opposing parties’ counsel engaged in fraud, misrepresentation and misconduct. The court denied the motion to vacate and awarded attorneys’ fees to the opposing parties.
The trial court properly exercised its discretion when it denied the Roches’ motion to vacate both because the Roches failed to bring their CR 60(b)(4) motion within a reasonable time, and they failed to show that the alleged fraud, misrepresentation or other misconduct resulted in entry of the judgment. We affirm the court’s denial of the motion to vacate and its award of attorneys’ fees.
FACTS
The underlying lawsuit between the Roches and their neighbors concerned property boundaries and whether certain bridle trail easements had been extinguished. The neighbors brought a quiet title action against the Roches to prevent them from moving a fence erected by a prior owner of the property to the original platted boundary line running along a bridle trail easement. The Roches joined the Compton Green Homeowners Association as a third-party defendant because the association has a duty to maintain the bridle trail easements. Following a trial, the court ruled in favor of the neighbors. The court concluded that the fence constituted a boundary by parol agreement and extinguished the Roches’ rights to an easement. Under Compton Green’s Declaration of Protective Covenants, Restrictions, Easements and Agreements (CC Rs), attorneys’ fees were awarded to the neighbors and the homeowners association. The Roches posted a bond and appealed. In an unpublished decision this court affirmed the trial court. See Brunhaver v. Roche, No. 42538-2-I (Feb.7, 2000).
On October 31, 2000, the Washington Supreme Court denied review. On March 14, 2001, the trial court ordered disbursement of the attorneys’ fees that had been awarded. On March 14, 2002, the Roches filed a “Motion and Declaration for an Order to Show Cause Re Relief from Judgment or Order CR 60(b)(4)”.[1] This motion specifically challenges the trial court’s order of March 14, 2001 to disburse the attorneys’ fees. However, the briefs below and on appeal make it clear that the Roches seek to vacate the 1998 judgment entered against them following trial. In their motion, the Roches contend that the judgment should be vacated on grounds of fraud, misrepresentation and misconduct of the adverse party.
Their primary allegation is that opposing counsel did not produce a letter that should have been produced in discovery. The letter, from the neighbors’ counsel to the homeowners association’s counsel, states the neighbors’ disagreement with the Roches’ position that the homeowners association was a necessary party in the lawsuit. The neighbors’ counsel also states, however, that he does not want the neighbors’ claims to be vulnerable to a motion to dismiss for failure to join the homeowners association and attaches a draft declaration from the president of the association stating that the homeowners association’s interests would be adequately represented by the parties and disclaiming any direct interest in the lawsuit. The Roches attached this letter and declaration as well as copies of subpoenas showing that they requested production of all relevant documents from all parties to the lawsuit with their CR 60(b)(4) motion.
The trial court denied the motion to vacate and awarded attorneys’ fees to the neighbors and the homeowners association under RCW 4.84.185 and CR 11.
The Roches moved for reconsideration and filed a motion for sanctions against the neighbors’ attorney. The trial court denied both motions. The Roches appeal.
DISCUSSION
Under CR 60(b)(4) a trial court may grant relief from judgment for fraud, misrepresentation, or other misconduct of an adverse party. The party attacking a judgment under CR 60(b)(4) must establish that the conduct complained of caused the entry of the judgment and prevented the losing party “from fully and fairly presenting its case or defense.” Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990). CR 60(b)(4) “is aimed at judgments which were unfairly obtained, not at those which [were] factually incorrect.” People’s State Bank v. Hickey, 55 Wn. App. 367, 372, 777 P.2d 1036 (1989).
A denial of a motion to vacate a judgment, pursuant to CR 60(b)(4) is reviewed for an abuse of discretion. Guardianship of Adamec, 100 Wn.2d 166, 178, 667 P.2d 1085 (1983). A trial court’s decision on a CR 60(b) motion will not be disturbed on appeal unless the court exercised its discretion on untenable grounds or for untenable reasons or unless the discretionary act was manifestly unreasonable. Lindgren, 58 Wn. App. at 595. An appeal from a CR 60(b) motion is limited to the propriety of the denial and not the impropriety of the underlying judgment. Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
A motion based on CR 60(b)(4) must be made within a reasonable time. CR 60(b); Suburban Janitorial Servs. v. Clarke American, 72 Wn. App. 302, 307-08, 863 P.2d 1377 (1993). The critical period in the determination of whether a motion to vacate is brought within a reasonable time is the period between when the moving party became aware of the judgment and the filing of the motion. Suburban Janitorial, 72 Wn. App. at 308. Major considerations in determining a motion’s timeliness are: (1) prejudice to the nonmoving party due to the delay, and (2) whether the moving party has good reasons for failing to take appropriate action sooner. Luckett v. Boeing Co., 98 Wn. App. 307, 312, 989 P.2d 1144 (1999), rev. denied, 140 Wn.2d 1026 (2000). The Roches brought this motion approximately four years after the entry of the judgment and two years after obtaining a copy of the letter and declaration they rely on. The neighbors and homeowners association contend that the motion was not brought within a “reasonable time”. We agree.
The Roches argue that the delay is excusable because at the time the judgment was entered they did not know of the existence of the letter and declaration. The neighbors claim this letter was in the files of the homeowners association and that the Roches had access to those files twice in 1997 during the litigation.[2] However, at the latest, the Roches knew about the letter by the spring of 2000 when they requested that the homeowners association send them a copy.[3] Thus, even assuming the Roches had no opportunity to learn of the letter before the spring of 2000, there is still no explanation as to why they waited two years before filing their CR 60(b) motion. We conclude that the trial court’s decision to deny the CR 60(b) motion to vacate and for relief from judgment was not untenable or unreasonable given the time between the entry of the judgment and the motion to vacate. Moreover, even if the motion had been filed within a reasonable time, the Roches fail to demonstrate a basis to vacate the judgment. At the heart of their motion is the allegation that opposing parties’ attorneys engaged in fraud and violated various Rules of Professional Conduct by failing to produce the letter and draft declaration. The Roches contend that because they did not know the content of this letter, they were “forced” to join the homeowners association as a necessary party which put them in a “disadvantageous position”.[4] But the Roches brought the association into the lawsuit because it was their position that the association was a necessary party. And how the association became a party to the lawsuit is not relevant to any dispositive issue decided by the trial court.
Even if we assume that the Roches’ allegations are valid, they have not demonstrated how the failure to produce these documents resulted in the entry of the judgment or prevented them from fully and fairly presenting their case. The letter would have had no effect on the issues decided at trial: whether the fence established a boundary by parol agreement and whether the Roches’ right to the trail easement was extinguished.
In their motion the Roches also argued that the opposing parties’ attorneys failed to cite a controlling local ordinance, King County Resolution No. 11048, and applicable state law to the trial court. But the Roches have not shown that of King County Resolution No. 11048 is applicable or that the attorneys misrepresented state law or misled the court.
The trial court acted within its discretion in denying the motion to vacate, both because the motion was not brought within a reasonable time and because the Roches failed to show how the alleged misconduct resulted in the entry of the judgment and prevented them from fully and fairly arguing their case.
The Roches also appeal from the trial court’s order awarding attorneys’ fees to the neighbors. The trial court also awarded fees to the homeowners association, but the Roches have not appealed that order. The trial court found that the motion to vacate was “frivolous and advanced without reasonable cause in violation of RCW 4.84.185” and “not well grounded in fact or law in violation of CR 11”.[5] The court further concluded that the motion was “not timely, cogent or appropriate”.[6]
The Roches argue that the neighbors and homeowners association are not entitled to fees because the motion was not frivolous in its entirety, the trial court failed to make required findings under RCW 4.84.185 and CR 11, and there was no notice of potential CR 11 sanctions.
The decision to award attorney fees for bringing a frivolous action is left to the trial court’s discretion and will not be disturbed absent a clear abuse of that discretion. Fluke Capital Mgmt. Servs. Co. v. Richmond, 106 Wn.2d 614, 625, 724 P.2d 356 (1986).
RCW 4.84.185 allows recovery of attorney fees and costs for the prevailing party when a lawsuit is frivolous. RCW 4.84.185 provides, in part:
In any civil action, the court having jurisdiction may, upon written findings by the judge that the action . . . was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action. . . .
A lawsuit is frivolous under RCW 4.84.185 when it cannot be supported by any rational argument on the law or facts. Smith v. Okanogan County, 100 Wn. App. 7, 24, 994 P.2d 857 (2000). The action must be viewed in its entirety and only if it is frivolous as a whole will an award of fees be appropriate. Biggs v. Vail, 119 Wn.2d 129, 133-37, 830 P.2d 350
(1992). Relying on Havsy v. Flynn, 88 Wn. App. 514, 521, 945 P.2d 221
(1997), the Roches argue that the trial court’s findings in this case are inadequate to support an award of fees under RCW 4.84.185. In Havsy, the trial court ordered sanctions to be imposed against a party by a later court order.
The court in Havsy did not state a basis or reason for the sanctions, therefore, the appellate court was unable to review the sanctions. Here, the court’s order includes the basis for the award under RCW 4.84.185 and the findings required by the statute. The trial court did not abuse its discretion in concluding that the motion to vacate was frivolous in its entirety. None of the claims asserted in the motion to vacate were meritorious. In addition to being untimely, the Roches made no showing that any of the conduct they complained of resulted in a judgment that was unfairly obtained. Because we conclude that RCW 4.84.185 supports the trial court’s award of attorney fees, we do not address the imposition of CR 11 sanctions.
The neighbors and the homeowners association request fees on appeal.
Because fees and costs were properly awarded below under RCW 4.84.185, they are entitled to fees on appeal on the same basis. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 825, P.2d 549 (1992). The requests for fees and costs on appeal are granted, subject to compliance with RAP 18.1(d).
BECKER and COX, JJ., concur.