No. 49176-8-I.The Court of Appeals of Washington, Division One.
Filed: August 19, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 012165569, Hon. Glenna S. Hall, September 11, 2001, Judgment or order under review.
Counsel for Appellant(s), Ronald P. Abernethy, Market Place Two Ste 200, 2001 Western Ave., Seattle, WA 98121.
Counsel for Respondent(s), Edwin J. Snook, Snook Schwanz, 25 Central Way Ste 410, Kirkland, WA 98033.
PER CURIAM.
Houmpaeng Leutakoun and Dana Rosenberg were involved in an auto accident. Leutakoun obtained an order of default and default judgment against Rosenberg. When Rosenberg learned of the judgment, she promptly moved to vacate, and the trial court granted her motion. We find no abuse of discretion, and affirm.
FACTS
On August 30, 2000, Houmpaeng Leutakoun was injured in a car accident.
The accident was caused when the other vehicle, driven by Dana Rosenberg, turned left in front of Leutakoun’s vehicle. As a result of the accident, Leutakoun incurred medical bills in the amount of $3,669.59, including $3,305 for chiropractic bills. Leutakoun also incurred lost wages in the amount of $1,554.30.
At the time of the accident, Rosenberg was insured by Allstate insurance. Rosenberg reported the accident to Allstate, who assigned a representative to handle the claim. In September 2000, attorney A. Graham Greenlee notified Allstate that he would be representing Leutakoun.
In February 2001, Greenlee made a demand to Allstate to settle Leutakoun’s claim, and submitted documentation in support thereof, including medical records and time loss verification. Allstate acknowledged receipt of the demand package, and agreed to review the materials. On April 17, 2001, Greenlee again contacted Allstate and questioned why there had been no further response to the demand. On April 18, Allstate’s claims representative wrote back to Greenlee. She indicated that she had spoken with Greenlee’s assistant on March 19, 2001, and relayed a settlement offer of $9,251 gross. She requested that Greenlee get back to her and let her know whether his client would accept this offer.
On May 14, 2001, Greenlee wrote back to Allstate, and advised that he and his client felt Allstate’s offer was inadequate. He further advised that `for that reason we will not be engaging in any further negotiations,’ and that `we will be filing a lawsuit and will determine the value of Mr. Leutakoun’s claim through litigation.’ CP 112. What Greenlee did not mention in this letter was that on May 9, 2001, he had already initiated a lawsuit against Rosenberg by serving a summons and complaint on Rosenberg’s roommate.
On May 15, 2001, Allstate’s representative called Rosenberg and told her that she may be served with a summons and complaint, and to contact her claims representative if she was served. Rosenberg did not mention that she had already been served. Apparently, Rosenberg has severe medical problems and has had four major brain surgeries (including a partial lobotomy), which resulted in her suffering from memory loss and cognitive deficits. Also as a result of her condition, Rosenberg had difficulties reading; she tended to read and write backward, and was unable to read more than a sentence or two. She later stated in a declaration that she did not understand the importance of the papers she was served, and had no memory of her roommate giving her the papers, although she was informed that he did give them to her.
On June 12, 2001, Greenlee filed the summons and complaint in King County Superior Court. The next day, he moved for and was granted an order of default. Default judgment in the amount of $22,723.89 was also entered on July 13, 2001.
On July 9, 2001, unaware that the default judgment had been entered, the Allstate representative again wrote to Greenlee and made a higher offer to settle Leutkoun’s claims against Rosenberg. On Jury 13, 2001, Greenlee notified Allstate that the default judgment had been entered and demanded payment.
On or about July 24, 2001, Rosenberg’s attorney entered a notice of appearance.[1] On August 30, 2001, Rosenberg filed a motion to vacate the order of default and the default judgment. The motion was based on CR 55(c)(1) and CR 60(b)(1), (4), (9) and (11).
The motion to vacate was scheduled for September 11, 2001, making Leutakoun’s response brief due by September 7, 2001. Prior to that date, without contacting Rosenberg’s counsel as to his availability, Greenlee noted Rosenberg’s deposition for September 7, 2001 at 11:00 a.m. On August 31, 2001, Rosenberg’s attorney notified Greenlee that he was not available at that date and time. Although Rosenberg’s attorney asked Greenlee to contact him to reschedule, Greenlee apparently did not do so, and filed his response to Rosenberg’s motion on September 7, 2001. In his response brief, Leutakoun argued that the trial court had no jurisdiction to hear the motion to vacate because Rosenberg had not first obtained an order to show cause. He also argued that Rosenberg had not demonstrated excusable neglect or a meritorious defense to the claim. On September 11, 2001, the trial court granted Rosenberg’s motion to vacate. On September 13, 2001, Leutakoun filed a notice of appeal.
DISCUSSION
Leutakoun first argues that the trial court lacked jurisdiction to hear Rosenberg’s motion to vacate because Rosenberg failed to obtain and serve an order to show cause as contemplated by CR 60(e)(3). This argument is without merit. CR 60(e)(1) provides that a party seeking vacation of a judgment shall file a motion setting forth the grounds for relief, supported by an affidavit setting forth the facts on which the motion is based and the facts constituting a defense to the claim. CR 60(e)(2) provides that after the motion to vacate is filed, the court shall enter an order setting a hearing and directing the parties to appear and show cause why the relief sought should not be granted. Cr 60(e)(3) then provides that the motion to vacate and the order to show cause shall be served on all affected parties.
Rosenberg did not follow the procedures set forth in CR 60(e), in that she did not seek or obtain an order to show cause. But her failure to do so did not deprive the court of jurisdiction. As this court held in Lindgren v. Lindgren, 58 Wn. App. 588, 591, 794 P.2d 526 (1990), a motion to vacate under CR 60(b) is part of the original suit, so it does not require independent jurisdictional grounds. Leutakoun had notice of the motion, had ample time to respond to the motion, and has failed to show prejudice from the procedural irregularity. Any error in failing to follow the letter of CR 60 was therefore harmless.
Leutakoun next argues that Rosenberg failed to demonstrate that the default judgment was entered as a result of excusable neglect, and that Rosenberg further failed to establish that she had a defense to the claim.
In response, Rosenberg argues that because she had constructively appeared, the judgment was void thus rendering Leutakoun’s arguments moot. In support of this position, Rosenberg cites to Colacurcio v. Burger, 110 Wn. App. 488, 41 P.3d 506 (2002). The facts of this case are remarkably similar to those in Colacurcio, and indeed the parties here are represented by the same attorneys as those in Colacurcio. The difference here is that the constructive appearance issue was never raised in the trial court, while the trial court in Colacurcio found that the defendant had constructively appeared and was therefore entitled to notice of the motion for default. Because Rosenberg has raised the issue of constructive appearance for the first time on appeal, we decline to address the issue, and instead resolve the matter based upon the issues raised in the trial court.
Although Leutakoun argues that Rosenberg failed to show excusable neglect under CR 60(b)(1), we note that this was not the only ground on which Rosenberg sought vacation of the judgment. The trial court did not indicate which ground it relied on in granting the motion to vacate. We review a trial court’s decision to vacate a default judgment for an abuse of discretion. White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968). Default judgments are disfavored because public policy dictates that controversies are to be determined on their merits. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979). `Therefore, this court is less likely to find an abuse of discretion if a trial court has set aside a default judgment rather than if it has refused to do so.’ Colacurcio, 110 Wn. App. at 494-95, citing Griggs, 92 Wn.2d at 582. Under these standards, we hold that vacation was appropriate.
Rosenberg submitted proof to the trial court that, due to her medical condition, she did not understand the importance of the papers with which she was served, and indeed had no memory of receiving the summons and complaint. Leutakoun argues that Rosenberg’s claim of disability is undermined by the fact that Rosenberg was able to drive, and did so while she was intoxicated. Leutakoun does not explain why suffering from a mental disability would preclude someone from driving under the influence, or conversely why driving under the influence is inconsistent with a mental disability. We are unable to discern any inherent incongruity between Rosenberg’s mental condition and her behavior.
Perhaps in recognition of the fact that he has no basis to contradict Rosenberg’s mental condition, Leutakoun argues that the trial court denied him due process by vacating the default judgment without allowing him to take Rosenberg’s deposition. This argument is not well taken. Leutakoun made no attempt to reschedule Rosenberg’s deposition, nor did he file a motion to continue the hearing on the motion to vacate in order to take the deposition. And while Leutakoun makes much of the fact that Rosenberg’s attorney was not available to attend a deposition on September 7 at 11:00 a.m., Leutakoun’s response brief was due on September 7, so it is difficult to imagine how the deposition testimony could have been provided to the trial court in a timely fashion. The trial court did not deny Leutakoun due process by holding the hearing as scheduled when Leutakoun failed to file a motion for a continuance, to file a motion to shorten time, or to take any other steps that would have allowed him to present further evidence to the court had he truly desired to do so.
The uncontroverted evidence before the trial court established that Rosenberg underwent several brain surgeries, including a partial lobotomy, and suffered from memory lapses and other cognitive difficulties. Further, Rosenberg may well have been confused about the import of the summons and complaint, given that she received a call from Allstate telling her that she might be served in the future. This was due to the fact that Greenlee informed the insurance company that because of Allstate’s inadequate offer, `we will not be engaging in any further negotiations’ and `we will be filing a lawsuit and will determine the value of Mr. Leutakoun’s claim through litigation.’ CP 112. While this statement may not have been an outright lie (in that Leutakoun had technically not yet filed the lawsuit, although he had already instituted the lawsuit by serving Rosenberg), it certainly could be viewed as deceptive.
We have previously held that a genuine misunderstanding between an insured and his insurer as to who is responsible for answering the summons and complaint will constitute a mistake for purposes of vacating a default judgment. Berger v. Dishman Dodge, Inc., 50 Wn. App. 309, 312, 748 P.2d 241 (1987). Similarly here, Rosenberg had a genuine misunderstanding about the need to take action to defend the lawsuit. This misunderstanding was caused in a large part by the conduct of Greenlee. While a mental disability in and of itself may not be sufficient to establish mistake, inadvertence, or excusable neglect, we believe that Rosenberg’s disability, coupled with Greenlee’s conduct in obtaining the default judgment, allowed the trial court to find that Rosenberg’s failure to answer the complaint was a result of mistake, inadvertence, and/or excusable neglect under CR 60(b)(1). Further, the trial court could have found grounds to vacate the judgment under CR 60(b)(4).
Finally, Leutakoun argues that Rosenberg failed to establish that she had a defense to the claim against her. Rosenberg did not seek vacation of the default judgment as to liability, so the only issue is whether Rosenberg had a defense on damages. Rosenberg presented affidavits from her attorney and her claims adjuster indicating that based on their years of experience, the default judgment was excessive. Additionally, the affidavits point out that while Luetakon claims to have suffered back injuries and obtained chiropractic care as a result thereof, his emergency room records from the date of the accident only show a wrist injury. While there may well be an explanation for this discrepancy, Rosenberg was only required to establish a prima facie defense to Leutakoun’s claim for damages. A `prima facie’ defense requires only evidence that is `sufficient to justify, but not to compel, an inference’ or in other words, `evidence to be weighed, but not necessarily to be accepted by a jury or other trier of the fact.’ McCoy v. Courtney, 25 Wn.2d 956, 172 P.2d 596 (1946). Rosenberg has established a prima facie defense on damages.
Further, this court has held that it would be inequitable to require a defendant to submit a detailed defense on damages when a default is entered on damages before any discovery can take place and before the defendant can obtain an examination of the plaintiff by a defense expert. Calhoun v. Merritt, 46 Wn. App. 616, 620-21, 731 P.2d 1094
(1986). Rosenberg established grounds justifying relief from judgment under CR 60(b). Once Rosenberg’s misunderstanding was cleared up and she learned of the default judgment, Rosenberg acted diligently in seeking relief. Rosenberg established a prima facie defense on damages. The trial court therefore did not abuse its discretion in vacating the default judgment on damages.
Affirmed.