No. 51283-8-I.The Court of Appeals of Washington, Division One.
Filed: September 8, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 00-2-07179-3. Judgment or order under review. Date filed: 10/02/2002.
Counsel for Appellant(s), Alan F. Hall, Attorney at Law, 420 Bell St, Edmonds, WA 98020-3122.
Counsel for Respondent(s), Steven Walter Klug, Attorney at Law, Pmb 9055, 10900 NE 8th St. Ste 900, Bellevue, WA 98004-4448.
PER CURIAM.
Jonathan McClain appeals from an order dismissing his motion for relief from summary judgment. He argues that the original partial summary judgment against him was void because it was mistakenly noted on a commissioner’s calendar instead of on a judge’s calendar, even though a judge heard the actual motion. McClain asserts that the commissioner did not have the authority to transfer the motion to the judge’s calendar and, therefore, the trial judge did not have subject matter jurisdiction. If jurisdiction was proper, McClain asserts that he should have been given notice of the transfer. McClain’s arguments are meritless. The judgment taken against him resulted from his failure to appear at court at all, and not from his appearance in the wrong courtroom for the wrong calendar. We affirm.
FACTS
Singer Assets Finance, Co. (Singer) sued Jonathan McClain for fraud and misrepresentation, breach of contract, conversion, unjust enrichment and injunctive relief. On May 17, 2001, Singer filed a `Renewed Motion for Partial Summary Judgment’ together with a calendar note. The calendar note erroneously indicated that the partial summary judgment motion was set on the court commissioner’s civil calendar rather than on the judge’s civil calendar. The motion was served to McClain’s residence on May 16, 2001, by personal delivery to his father and co-resident.
McClain did not file any response to the partial summary judgment motion. On June 19, 2001, civil motions judge, Anita Farris, heard and granted the partial summary judgment motion. Nothing in the record indicates how the case was transferred to the proper calendar before a judge instead of a commissioner. McClain did not appeal the order granting partial summary judgment.
On September 16, 2002, McClain filed a motion for relief from partial summary judgment. On October 2, 2002, McClain’s motion for relief from partial summary judgment was heard and an order denying his motion was entered. McClain appeals this order.
ANALYSIS I. Subject Matter Jurisdiction
McClain asserts on appeal that the partial summary judgment order against him was void under CR 60(b)(5) for lack of subject matter jurisdiction.[1] Under CR 60(b)(5), a court may relieve a party from a final judgment if the judgment is void. A motion to vacate a void judgment under CR 60(b)(5) may be brought at any time. In re Marriage of Leslie, 112 Wn.2d 612, 618-19, 772 P.2d 1013 (1989). `If a judgment is void for want of jurisdiction, no showing of a meritorious defense is required to vacate the judgment.’ Leen v. Demopolis, 62 Wn. App. 473, 477, 815 P.2d 296 (1991). A decision to grant or deny a motion to vacate a default judgment is within the trial court’s sound discretion. White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968). Courts, however, must vacate void judgments. Brenner v. Port of Bellingham, 53 Wn. App. 182, 188, 765 P.2d 1333 (1989).
McClain argues that the superior court judge who heard the partial summary judgment motion did not have subject matter jurisdiction because the motion was improperly transferred from the commissioner’s calendar. Subject matter jurisdiction `refers to {a} court’s power to hear and determine cases of the general class or category to which proceedings in question belong. . . .’ Black’s Law Dictionary 1425 (6th ed. 1990). The superior court has `original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court.’ Wash. Const. art. IV, sec. 6. Snohomish County Local Administrative Rule (SCLAR) 0.02(a) states: `The Superior Court for Snohomish County is organized into the following departments: A Presiding Judge’s Department; Trial Departments; Court Commissioner Departments; and Juvenile Departments. . . .’ Thus, the judges and the commissioners are both part of the Snohomish County Superior Court which had subject matter jurisdiction over McClain’s case.
McClain has cited to no authority that supports his assertion that the commissioners and the judges of the Snohomish County Superior Court are somehow in different courts or did not have authority to hear his case. A court commissioner has the `power, authority, and jurisdiction, concurrent with the superior court and the judge thereof’ to `hear and determine ex parte and uncontested civil matters of any nature.’ RCW 2.24.040(9). The judge that actually heard the motion clearly had authority to hear the case. Although McClain concentrates his argument on the authority to transfer a case from one calendar to another, he cites no authority that such a transfer within the same court is improper. We conclude that the judge who heard the summary judgment had subject matter jurisdiction.
II. Notice
McClain also argues that due process required that he be given notice of the transfer. We agree that if McClain had appeared before the commissioner because of the erroneous calendar note, the default judgment against him would be voidable based on the calendaring mistake. Such a motion should have been brought within one year under CR 60(b)(1). McClain had a scheduled hearing before the court, of which he was personally served notice, and he failed to appear. McClain has presented no evidence that the mistake is what prevented him from appearing before the court at all. He cannot now, more than a year later, try to void the judgment because of a typographical error. He received due process when he received personal service of the hearing. He chose not to appear.
The order denying McClain’s motion for relief from partial summary judgment is affirmed.