No. 26596-6-IIThe Court of Appeals of Washington, Division Two.
Filed: March 22, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 99-2-06280-4, Hon. Vicki L. Hogan, September 29, 2000, Judgment or order under review.
Counsel for Appellant(s), Leslie O. Stomsvik, Attorney At Law, 133 S 51st St, Tacoma, WA 98408.
Counsel for Respondent(s), Douglas W. Hales, Attorney At Law, 621 Pacific Ave Ste 305, Tacoma, WA 98402.
ARMSTRONG, C.J.
When Marvin Webster failed to appear for trial, the judge entered judgment for Mayme Hunt on her counterclaim against him. Webster moved to vacate the judgment under CR 60(b) for excusable neglect. Although Webster’s attorney had sent him notice of the trial date when he withdrew, Webster did not receive an exchange of documents between Hunt and her attorney concerning withdrawal by Hunt’s attorney. Webster argued that these documents would have reminded him of the trial date. The court denied the motion, and Webster appeals. Because Webster has not shown excusable neglect, we affirm.
FACTS
Marvin Webster sued Vern Brett’s estate, seeking to recover funds he allegedly paid on Brett’s behalf. Brett’s personal representative, Mayme Hunt, counterclaimed, alleging that Webster failed to collect enough rent when acting as Brett’s property manager.
Apparently, Webster decided not to pursue the lawsuit, and his lawyer withdrew. The Notice of Intent to Withdraw filed by his lawyer noted that trial was set for March 22, 2000, and gave Webster’s home address as the last known address. When the lawyer sent the notice to Webster, he enclosed the case schedule.
Hunt’s lawyer later withdrew and she appeared pro se. Both notices were sent to Webster’s business address. But Webster no longer had the business, and he did not get mail there.
On March 22, 2000, Hunt appeared for trial; Webster did not. The trial court granted Hunt judgment on her counterclaim. When Webster learned of the judgment in August 2000, he moved to vacate. The court denied the motion.
ANALYSIS
Webster contends the trial court should have vacated the judgment under CR 60(b)(1), which allows the court to vacate a judgment for a party’s excusable neglect. To prevail under CR 60(b)(1), Webster must show that he has a prima facie defense to Hunt’s claims, that he failed to appear for trial because of excusable neglect, that he acted with due diligence after discovering the judgment, and that Hunt would not experience substantial hardship if the court vacated the judgment. Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 832, 14 P.3d 837 (2000) review denied, 143 Wn.2d 1021 (2001).
Webster can show everything except excusable neglect. The court has found excusable neglect when a party did not appear because the complaint was faxed to the wrong number. Pfaff, 103 Wn. App. at 831. The failure to answer resulted from a mistake, and the party acted diligently when it discovered the mistake. Pfaff, 103 Wn. App. at 836. But a party who knew the court was going to enter a judgment could not show excusable neglect even though the party did not receive notice that the court entered judgment. Cohen v. Stingl, 51 Wn.2d 866, 322 P.2d 873 (1958). And when an insurance company did not respond because it had mislaid the file, we found its neglect inexcusable. Prest v. Am. Bankers Life Assurance Co., 79 Wn. App. 93, 100, 900 P.2d 595 (1995). Courts hold pro se litigants to the same standard as attorneys, and an attorney’s incompetence or neglect is not excusable. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993); Lane v. Brown Haley, 81 Wn. App. 102, 107, 912 P.2d 1040 (1996).
Hunt did send notices to the wrong address. But the notices did not concern the trial; rather, they told Webster that Hunt’s attorney had withdrawn and she was representing herself. Webster argues that these notices would have reminded him of the trial date. Even so, this does not show that Webster’s neglect was excusable. Webster does not dispute that his attorney sent him notice of the trial date, and nothing in Hunt’s misrouted notices changed the date. Webster simply neglected to diary or otherwise monitor the upcoming trial date. We would not excuse an attorney for this (See Haller v. Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302
(1978) (attorney’s neglect in management of a case not excusable)); we cannot excuse Webster for it. The trial court properly denied Webster’s motion to vacate the judgment under CR 60(b)(1).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J. and BRIDGEWATER, J., concur.