No. 47426-0-I.The Court of Appeals of Washington, Division One.
Filed: December 24, 2001. UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 97-2-19655-8 Judgment or order under review Date filed: 10/06/2000
Counsel for Appellant(s), Michael W. Johns, Brown Davis Roberts Pllc, 7525 Pioneer Way Ste 202, Gig Harbor, WA 98335.
Counsel for Respondent(s), Jeffrey G. Poole, Poole Assoc Pc, One Union Sq. STE 2420, 600 Univ. St., Seattle, WA 98101-1129.
PER CURIAM.
Ted and Jeanna Clark appeal a judgment dismissing their claims against Washington Enterprises Unlimited, Inc. (WEUI) and awarding damages to WEUI for the Clarks’ breach of a construction contract. They argue that because they were not in default, the judgment was void and they were entitled to notice of further proceedings and presentation of findings of fact and conclusions of law. The Clarks also argue that the trial court abused its discretion in denying their motion to vacate the judgment, and that WEUI was not a registered contractor and therefore was not entitled to bring its counterclaim. The judgment was not a default judgment but a dismissal of the Clarks’ claims for failure to appear for trial; therefore, it was not void and they were not entitled to further notice. The trial court’s denial of the motion to vacate the judgment was based on tenable reasons, and we will not overturn it. The Clarks did not assign error to the trial court’s finding that WEUI was fully qualified to pursue its counterclaim; therefore, they have waived that issue.
FACTS
On December 7, 1994, Ted and Jeanna Clark paid WEUI $10,000 to construct retaining walls and rockeries and to do drainage work on property they owned in King County. The parties signed a written contract on February 3, 1995, and the Clarks paid another $62,210. A change order to the contract was executed on August 9, 1995. On August 6, 1997, the Clarks filed a lawsuit charging that WEUI had failed to complete the work and seeking to recover costs they had incurred and other consequential damages. WEUI admitted in its answer that the Clarks had paid a total of $72,210 for the project but also claimed they owed $35,000. In response to a motion to compel discovery, WEUI requested a stay pending arbitration according to the contract. The trial court denied the motion to compel and found that the dispute was subject to arbitration, but did not formally enter a stay.
The Clarks later moved to lift the stay of proceedings pending arbitration and this motion was denied. At this point, the Clarks initiated arbitration proceedings with the American Arbitration Association (AAA).
On March 9, 1999, a clerk’s order of dismissal was entered because the parties did not appear for trial. The Clarks moved to vacate the order of dismissal and reinstate a case schedule on the grounds that they thought litigation had been stayed pending arbitration and their earlier motion to lift the stay was denied. The trial court vacated the order of dismissal and set a new case schedule with a new trial date of December 6, 1999. The Clarks’ counsel withdrew in August 1999 and the same month they filed a document stating that they wanted to bring a motion to dismiss the lawsuit. But they never filed a motion to dismiss.
In November 1999, AAA withdrew the arbitration for failure of the parties to go forward or respond to letters regarding the arbitration. The Clarks did not appear for the scheduled pretrial conference or for trial on December 6, 1999. On January 14, 2000 WEUI filed a motion to dismiss the Clarks’ claims; on January 21, 2000 it proceeded to trial on its counterclaims. The trial court entered an order dismissing all the Clarks’ claims. The trial court also entered findings of fact and conclusions of law, including findings that the Clarks paid WEUI $10,000 and that they owed a total of $34,190.50 to WEUI. The trial court entered judgment for that amount. The Clarks later moved to vacate the judgment on the basis that they thought the action had been dismissed and WEUI was not in compliance with state registration requirements when it entered into the change order and performed work. The trial court denied the motion.
DISCUSSION
1. Order Dismissing Claims The Clarks contend the judgment was void because they were not in default.
They also argue that, because they were not in default, they were entitled to notice of the “new” trial on January 21, 2000, and that they were entitled to notice of presentation of findings of fact and conclusions of law. They rely on CR 55(a)(3), which provides that default cannot be entered against a party who has appeared without at least 5 days’ notice.
The Clarks had appeared in the action by filing responsive pleadings and appearing at other court proceedings. But WEUI’s motion did not request, nor did the trial court enter, an order of default. Rather, WEUI requested an order dismissing all the Clarks’ claims under LR 43(a)(1). This local rule states (1) The failure of a party seeking affirmative relief or asserting an affirmative defense to appear for trial on the scheduled trial date will result in dismissal of the claims or affirmative defenses without further notice. (2) If the party against whom claims are asserted fails to appear, the party seeking relief must proceed with the trial on the record.
The Clarks did not appear for the scheduled trial on December 6, 1999, and the arbitration had already been withdrawn by then. The record is clear that the Clarks did have notice that trial was scheduled for this date. On January 14, 2000 WEUI filed its motion to dismiss. On January 21, 2000 WEUI presented its case in the Clarks’ absence. At this trial of WEUI’s counterclaims, the trial court considered entering an order of default against the Clarks. But the court decided that an order of dismissal was proper because the Clarks had not appeared for trial. Although the trial court wrote in the body of the order that the Clarks were in default, it was apparently equating default with failure to appear for trial. WEUI stated that it was moving under LR 43 for dismissal. The court noted that the Clarks had failed to appear for a summary judgment hearing and for trial itself. The court rules allow the trial court to dismiss a party’s claims when that party does not appear for trial. The Clarks did not appear for trial and the trial court did not err in entering the order of dismissal.
The Clarks were not in default but had failed to appear for trial; therefore, they were not entitled to notice of the date WEUI presented its counterclaims against them or to the date WEUI presented findings of fact and conclusions of law. Rather, under LR 43, the proper course was dismissal of their claims or affirmative defenses without further notice. And, if a party proceeds to present evidence on the record after the opposing party fails to appear for trial, the trial court may enter findings of fact, conclusions of law, and judgment without notice to the absent party.[1] There is no requirement that presentation of evidence occur at a certain time to be valid. A party who fails to appear for trial after receiving notice is deemed to have waived the right to notice of presentation or review of findings of fact and conclusions of law.[2]
The trial court did not err when it dismissed their claims and did not give them notice of the proceeding on January 21 or of presentation of findings of fact and conclusions of law.
2. Judgment
The Clarks contend that the trial court erred in denying their motion to vacate the judgment because they had a good faith belief that all claims had been resolved. They base this argument on the document they filed stating that they wanted to move to dismiss the lawsuit; their belief that proceedings had been stayed, and withdrawal of the arbitration. The Clarks also argue that trial should not have proceeded without an order lifting the stay and that WEUI committed misconduct by proceeding to trial without informing the trial court of the stay. Finally, the Clarks argue that WEUI was not entitled to judgment because it was not a properly registered contractor. Although the Clarks never refer to CR 60(b)(1) in their briefs, they assert that the trial court should have granted their motion to vacate on the basis of their `good faith belief that the parties’ claims had been resolved’. They refer to a “stay order”, an agreement to dismiss and cancellation of arbitration proceedings as evidence supporting their belief and, presumably, their mistake or excusable neglect in failing to appear for trial.[3] .
We note once again that the judgment in this case was not a default judgment but a dismissal of claims and judgment after trial. The existence of a possible meritorious claim is immaterial to a motion to vacate a judgment following trial on the merits.[4] The law is well settled in Washington that an appeal of a motion to vacate a judgment will succeed only where the trial court abused its discretion, and that the trial court’s judgment will be overturned only if exercised on untenable grounds or for untenable reasons.[5] The trial court denied the Clarks’ motion to vacate, stating:
The motion is denied. Under the circumstances of this Case, where this court previously vacated an earlier dismissal of this case and set trial for December 6, 1999 and where withdrawing counsel also gave plaintiffs notice of the December 6, 1999 trial date, and plaintiffs failed to appear for trial, defendants properly proceeded to trial, LR 43, and plaintiffs may be deemed to have waived notice of presentation of findings, conclusions and judgment. CR 52 (c). CP 376.
The basis for denying the motion to vacate judgment was reasonable. On the Clarks’ motion, the trial court had vacated the earlier order of dismissal and set a new trial date. Withdrawing counsel gave the Clarks notice of the new trial date and they failed to appear. The trial court did not abuse its discretion in denying the motion to vacate judgment.
The Clarks also argue that no trial should have occurred without an order lifting the stay of proceedings pending arbitration. But their counsel admitted in pleadings that no order staying the proceedings existed. And in their own brief, the Clarks acknowledge that after the trial court found the action was subject to arbitration, the clerk’s office dismissed it for want of prosecution. Further, they never moved to lift the supposed stay of proceedings; instead, they obtained an order vacating the dismissal and setting a new trial date and allowed the arbitration to be withdrawn, evidencing an intent to proceed with trial. The Clarks’ actions negated a belief that the proceedings continued to be stayed, if they ever were. There was no need for an order lifting a stay where the parties agreed that no such order existed.
3. Judgment on Counterclaims
The Clarks contend that WEUI is not a properly registered contractor and was not entitled to judgment on its counterclaims. They base this assertion on RCW 18.27.080, which states:
No person engaged in the business or acting in the capacity of a contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any work or for breach of any contract for which registration is required under this chapter without alleging and proving that he was a duly registered contractor and held a current and valid certificate of registration at the time he contracted for the performance of such work or entered into such contract.
The record shows that WEUI was registered and bonded in August, 1995 when the parties entered into the contract. And, as noted in WEUI’s brief, WEUI alleged in its counterclaim that it was fully qualified to maintain its claims. The Clarks did not contest this in responsive pleadings or assign error to the trial court’s finding that WEUI was a valid Washington corporation and was fully qualified to maintain its counterclaim. Unchallenged findings of fact become verities on appeal.[6] As such, they will not be revisited by a court on appeal.
4. Attorneys’ Fees
WEUI contends that because this appeal was frivolous and brought for the purpose of delay they should be awarded attorneys’ fees and costs. Court rules provide that this court may order a party who brings a frivolous appeal for the purpose of delay to pay terms and compensatory damages to the opposing party.[7] An appeal is frivolous and brought for the purpose of delay where there are no arguable issues regarding which reasonable minds could differ, and the appeal is so devoid of merit that there is no reasonable possibility of reversal.[8] The Clarks have not raised any debatable issues in this appeal. We therefore refer the determination of a reasonable attorney’s fee award to a commissioner of this court consistent with RAP 18.1.
CONCLUSION
The judgment was not a default judgment but a dismissal of claims pursuant to LR 43; therefore, it was not void and the Clarks were not entitled to notice of further proceedings or presentation of findings of fact and conclusions of law. The trial court did not abuse its discretion in denying the motion to vacate the judgment. The Clarks did not assign error to the finding of fact stating that WEUI was fully qualified to pursue its counterclaim; therefore, they have waived that issue . . .
We concur.
(1996).
(2001); Kneis v. Kneis, 96 Wn. App. 243, 248, 979 P.2d 482 (1999).
(1983).