Opinion
No. 58163-5-I.
August 20, 2007.
Appeal from judgments of the Superior Court for King County, No. 04-2-06946-7, George T. Mattson, J., entered May 16 and August 30, 2005 and April 19, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Appelwick, C.J., concurred in by Coleman and Becker, JJ.
AAAA Agency is the assignee of the subrogee on a claim against Kelly Cruson arising from a car accident. AAAA received a default judgment and eventually garnished Cruson's wages. Cruson's employer garnished the wages but paid the funds to a creditor other than AAAA upon going out of business. When Cruson investigated the loss of the funds, he discovered that AAAA had received a default judgment including prejudgment interest it had not requested in its complaint. Cruson filed suit against AAAA alleging violations of the Consumer Protection Act (CPA) and Washington Collection Agency Act (WCAA). On summary judgment, the court determined that AAAA had violated Civil Rule (CR) 54(c) by obtaining unpled prejudgment interest. The trial court found that AAAA had violated the CPA by violating CR 54(c) but had not violated the WCAA. AAAA appeals the CPA violation; Cruson cross-appeals. We affirm in part and reverse in part.
FACTS
On March 21, 1997, Kelly Cruson rear-ended a driver insured by Safeco. Cruson has never disputed his liability for the accident and the amount owed for the cost of repair. However, Cruson was deeply in debt and did not reimburse Safeco for the repairs to the insured's vehicle. In December 1997, Safeco assigned its claim to AAAA for collection. Jack Wolf, vice-president and part owner of AAAA, notified Cruson of the assigned claim in January 1998. Wolf and Cruson had multiple phone conversations, but no payments were made. On May 7, 1998, AAAA filed a summons and complaint for the damages Safeco "paid . . .in an amount to be determined in trial, but believed to be in excess of $648.98." The complaint requested "a sum to be determined at trial, but believed to be in excess of $648.98 together with plaintiff's taxable costs and disbursements and statutory attorney fees." Cruson admits receipt of the summons and complaint. On April 16, 1999, an order of default and default judgment was entered for $970.41, including $128.43 in interest.
Jack Wolf, on behalf of AAAA, continued to attempt to collect on the debt. In August 1999, the Department of Licensing suspended Cruson's driver's license as a result of notification about the unsatisfied civil court judgment. In August 2000, AAAA initiated garnishment of Cruson's wages by sending his employer, King Plastics, Inc., a writ of garnishment. King Plastics answered the writ in September 2000 and acknowledged it paid wages to Cruson. Cruson did not object to the garnishment. In November 2000, King Plastics informed AAAA that it held $739.13 in Cruson's wages and needed the second garnishment answer form. AAAA sent the wrong answer to King Plastics so King did not receive its second answer form for the garnishment until December 2000. King Plastics immediately returned the second answer and AAAA put the form aside until it had enough other answers to send to the District Court. On January 30, 2001, a King Plastics employee called to inform AAAA that King Plastics was going out of business and needed to send the garnished funds because a creditor was foreclosing upon its assets. AAAA did not receive the judgment on garnishee's answer until March 2001, by which time the King Plastics' creditor had obtained the funds. AAAA never received the garnished wages.
After the failure of the garnishment, Cruson entered an oral agreement with Jack Wolf to pay $50 per month in exchange for which Wolf would freeze the interest and release the lien on the driver's license. Cruson made several payments, but his payments were not monthly or regular so he did not satisfy the agreement. Cruson eventually paid $525 to AAAA but his license was not released.
In late October or early November 2002, after becoming frustrated that the garnished funds did not reach AAAA and that Wolf was continuing to solicit payments, Cruson obtained his District Court file. When he looked at the file Cruson determined that the default judgment contained interest AAAA had not requested in its complaint. On April 14, 2004, Cruson filed suit against AAAA and King Plastics. The suit against the employer as to the garnishment was eventually dismissed. On summary judgment, the trial court ruled that AAAA had obtained a default judgment in violation of CR 54(c) and dismissed Cruson's claim under RCW 19.16.250(18). The trial court also quashed a subpoena to have AAAA's attorney, John Farver, testify as a witness. At trial, the court dismissed both of Cruson's claims under RCW 19.16.250(5) and RCW 19.16.250(19). However, the court found the CR 54(c) violation to be a violation of the CPA and that AAAA had breached its duty of care to Cruson by failing to timely collect the garnished wages. The trial court credited Cruson with the garnished wages and granted Cruson $2,500 for restriction of movement due to the suspended driver's license and $48,950.19 in attorney fees with a 1.5 multiplier. The full judgment against AAAA amounted to $77,692.95.
DECISION
I. Garnishment
AAAA garnished Cruson's wages. AAAA did not receive the garnished funds because Cruson's employer went out of business and transferred the held funds to one of its creditors prior to service of the judgment on the writ of garnishment. The trial court credited the lost garnished wages to Cruson because it determined that AAAA owed a duty, as the garnishor, to promptly obtain a judgment on the garnishee's answer and collect its funds. "Defendant breached its duty of care owed to Mr. Cruson in the garnishment process. It was defendant, not Mr. Cruson, with the power to obtain the garnished wages, thus defendant alone bore the risk of loss of the garnished funds." Existence of a duty is a question of law, subject to de novo review. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Cruson originally included his former employer, King Plastics, in the suit for failure to pay wages. The suit was dismissed. Because the company went out of business, the employer appears to be judgment proof.
Under the garnishment statute,
[f]rom and after the service of a writ of garnishment, it shall not be lawful . . . for the garnishee to pay any debt owing to the defendant at the time of such service, or to deliver, sell or transfer . . . any personal property or effects belonging to the defendant in the garnishee's possession or under the garnishee's control at the time of such service.
RCW 6.27.120. After service of the writ, the garnishor has no right to dispose of the held property. "Under the statute, the garnishee may not lawfully dispose of the thing garnished, but must hold it subject to the order of the court." Hawley v. Isaacson, 117 Wash. 197, 202-3, 200 P. 1109 (1921). A garnishee who releases funds to the debtor or a creditor of the debtor is liable for satisfaction of the debt to the garnishor. See, Sisson v. Durrant, 152 Wash. 382, 388, 278 P. 174 (1929); Eidemiller v. Elder, 32 Wash. 605, 609, 73 P. 687 (1903). A garnishee's release of garnished funds to its own creditor has the same result as distributing the funds to the debtor or his creditor — the garnishor does not receive the funds to which it is entitled.
Cruson's employer, the garnishee, is liable to AAAA for the funds improperly disbursed to its creditor after the writ of garnishment was served. The garnishee is also liable to the debtor for improperly disposing of the funds. However, because the garnishee appears judgment proof, the question is whether the garnishor or debtor should bear the loss of the funds. The trial court took the view that the garnishor had the power to reach the funds while the debtor did not, and therefore should bear the liability where the garnishee appears judgment proof. While AAAA was the only party with the power to affect the disposition of the garnished funds during the three month period, this fact does not require a reduction in the judgment as if the funds had been received.
The garnishment statute stipulates a time frame for the allowable delay in obtaining a judgment on a writ of garnishment:
In all cases where it shall appear from the answer of the garnishee that the garnishee was indebted to the defendant when the writ of garnishment was served, no controversion is pending, there has been no discharge or judgment against the garnishee entered, and one year has passed since the filing of the answer of the garnishee, the court, after ten days' notice in writing to the plaintiff, shall enter an order dismissing the writ of garnishment and discharging the garnishee
RCW 6.27.310 (emphasis added). Neither garnishee nor debtor can request dismissal of the writ of garnishment until a year has elapsed without a judgment. The legislature has apparently contemplated great latitude in what constitutes timely prosecution of the writ. AAAA's three month delay in obtaining judgment on the writ was well within the statutory time frame.
While AAAA's delay may not have been prudent, as a matter of law under the statutory scheme, the 90 day lapse was not unreasonable. AAAA did not have a duty to seek a judgment on the garnishment except as provided in the statute. The garnishee improperly relinquished the funds. The debt owed AAAA was not satisfied by garnishment. We conclude that Cruson was not entitled to credit against the judgment based on the wrongful actions of his garnishee/employer. The trial court erred in granting such an offset.
II. Res Judicata
AAAA argues that Cruson's claims about the impropriety of the prejudgment interest should be barred by res judicata because the issue should have been raised in response to the initial district court suit or by a timely CR 60(b) motion to set aside the default judgment. Cruson counters that he had no opportunity to litigate the prejudgment interest issue because he had no notice of AAAA's intent to seek such relief. Whether res judicata bars an action is a matter of law subject to de novo review. Lynn v. Dep't of Labor Indus., 130 Wn. App. 829, 837, 125 P.3d 202 (2005).
"Res judicata acts to prevent relitigation of claims that were or should have been decided among the parties in an earlier proceeding." Norris v. Norris, 95 Wn.2d 124, 130, 622 P.2d 816 (1980). The doctrine "`applies . . . to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at that time.'"Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. 320, 329, 941 P.2d 1108 (1997). However, "[i]t follows from the very nature of things that a cause of action which did not exist at the time of a former judgment could not have been the subject-matter of the action sustaining that judgment." Harsin v. Oman, 68 Wash. 281, 283-284, 123 P. 1 (1912). In this case, the CPA claim did not exist at the time of the district court judgment. The claim arose upon entry of the judgment which included the prejudgment interest. Similarly, the Collection Agency Act claims also did not arise until the disputed actions occurred, after entry of the default judgment. Given that Cruson's claims did not exist until after the default order and judgment, res judicata does not bar the claims.
III. CPA
A. Statute of limitations
AAAA contends that the four year statute of limitations included in the CPA bars the claim. AAAA claims that this statutory language prevents application of the discovery rule to CPA claims, so the claim is time barred. AAAA also argues in the alternative that Cruson should have discovered the issue of the prejudgment interest after entry of the default judgment, thus the statute of limitations still bars the issue.
"Any action to enforce a claim for damages under RCW 19.86.090 shall be forever barred unless commenced within four years after the cause of action accrues." RCW 19.86.120. AAAA contends that this language prevents the application of the discovery rule, because the statute looks to the accrual of the the action not the "discovery" of it. However, the discovery rule affects the time of accrual of the action. "Under the discovery rule, a cause of action does not accrue — and as a result the statute of limitations does not begin to run — until the plaintiff knows, or has reason to know, the factual basis for the cause of action." Bowles v. Dep't of Ret. Sys., 121 Wn.2d 52, 79-80, 847 P.2d 440 (1993). Since the discovery rule merely changes the date of accrual from the moment of the violation to when the plaintiff knows of the facts underlying the cause of action, the discovery rule is not inconsistent with the statute of limitations within the CPA. In fact, the discovery rule has been applied to the CPA. Mayer v. Sto Indus. Inc., 123 Wn. App. 443, 463, 98 P.3d 116 (2004), affirmed in part, reversed in part on other grounds, 156 Wn.2d 677, 132 P.3d 115 (2006).
"The point at which the plaintiff should have discovered the injury is a question for the trier of fact." Samuelson v. Community College District No. 2, 75 Wn. App. 340, 346, 877 P.2d 734 (1994). The trial court determined that facts supported the timeliness of Cruson's action by concluding, "Plaintiff filed his complaint within the statute of limitations based upon the time he reasonably discovered the issue which gives rise to the CPA cause of action." To challenge factual findings after trial, the appellant must show that the facts are not supported by substantial evidence. We are not persuaded that the record compels a different conclusion.
Cruson argues he did not know of the improper prejudgment interest until he looked in the court file. AAAA contends he should have known much earlier. The trial court found that Cruson "did not discover the amount of the initial judgment or how it was computed until he went to the Aukeen District Court shortly after he made his last payment to defendant." In a mixed finding of fact and conclusion of law, the trial court determined that the discovery rule applied and that Cruson did not have notice until November 2003.
A cause of action under the CPA does not accrue until discovery by the aggrieved party of the facts supporting a cause of action. A four-year statute of limitations is applicable to the CPA violations. Defendant's claim is based on the theory that plaintiff should have looked into matters pertaining to this case that would have put him on notice of the collection of prejudgment interest. Plaintiff filed his complaint within the statute of limitations based upon the time he reasonably discovered the issue which gives rise to the CPA cause of action.
With this determination, the trial court essentially concluded that Cruson did not, or reasonably should not, have discovered the improper inclusion of prejudgment interest at an earlier date. The record supports this conclusion.
The complaint did not request prejudgment interest. Upon Cruson's failure to answer, AAAA filed a motion for default which did list an amount requested for interest. The record supports a finding that Cruson was not served with a copy of the motion for default. Nor did Cruson receive a copy of the judgment. Even if he had received a copy, Cruson would not have been notified of the prejudgment interest because the face of the judgment did not include any mention of interest. The order merely listed the judgment of $777.41, court costs of $68.00 and attorney fees of $125.00. The record does not document a conversation or an itemized bill that articulated the amount and breakdown of the default judgment that would have put Cruson on notice of the prejudgment interest. AAAA's call logs contain the most specific evidence of Cruson's knowledge in an entry describing a conversation between Jack Wolf and Cruson. "On February 11, 2000 I again spoke with Kelly about the judgment we received and he agreed to think about payment arrangements and get back to me the following Monday." However, this entry merely shows that Cruson knew AAAA had obtained a judgment. It does not prove that Cruson knew or should have known that the judgment included unpled prejudgment interest. According to the record, the writ of garnishment for $1,231.78, served in August 2000, was the first document Cruson received containing a specific reference to the amount owed. This is within four years of Cruson's suit filed April 2004.
The fact that the trial court did not pinpoint a time at which Cruson knew or should have known the facts giving rise to his CPA claim is not fatal here. The evidence before the court was substantial that Cruson had no actual or constructive notice of a particular cause for concern about the legitimacy of the judgment prior to April 14, 2000, as required to bar the suit. The CPA action is not time barred.
B. The CR 54(c) violation and the CPA
Under the CPA, "unfair or deceptive acts or practices in the conduct of any trade or commerce are . . . unlawful." RCW 19.86.020. Cruson claims that AAAA violated the CPA. "[F]ailure to plead for prejudgment interest, filing and obtaining a default judgment that included non-allowable interest, and actually collecting or attempting to collect wrongfully obtained sums are grounds establishing a CPA violation." The trial court agreed and awarded damages and attorney fees to Cruson. Whether a particular action gives rise to a CPA violation is a question of law. Keyes v. Bollinger, 31 Wn. App. 286, 289, 640 P.2d 1077 (1982).
A CPA claim requires (1) an unfair or deceptive act or practice (2) occurring in trade or commerce, (3) public interest impact, (4) injury to plaintiff's business or property and (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). AAAA alleges that Cruson failed to prove all of the elements of the action.
1. Unfair or Deceptive Act
AAAA claims that seeking interest to which it was entitled is not unfair or deceptive. According to AAAA, they were legally entitled to prejudgment interest and properly pled the issue. AAAA may have been legally entitled to some amount of prejudgment interest, if properly pled. However, AAAA failed to plead the interest as required for default judgment under CR 54(c). Requesting prejudgment interest in a default judgment without providing notice to the defendant is unfair. Furthermore, Wolf's affidavit claims "[t]hat pursuant to the filed complaint the following sums of money are due to the plaintiff," and lists pre-judgment interest despite the absence of such interest in the complaint. The affidavit was deceptive in its request for unpled interest.
2. Good Faith
"Acts which are done in good faith under an arguable interpretation of the law are not CPA violations." Cox v. Lewiston Grain Growers, 86 Wn. App. 357, 374, 936 P.2d 1191 (1997) (citing Perry v. Island Sav. Loan Ass'n, 101 Wn.2d 795, 810, 684 P.2d 1281 (1984)). AAAA contended that the request for prejudgment interest was done in good faith. The trial court disagreed, determining that "[t]he underlying lack of any apparent basis to claim prejudgment interest, even if properly plead, overcomes defendant's alleged claim of good faith." The trial court's reasoning is sound.
"Prejudgment interest is awarded to compensate a party who has lost the use of money to which he or she was entitled." Lakes v. Von Der Mehden, 117 Wn. App. 212, 217, 70 P.3d 154 (2003). The party can receive this interest when the amount claimed is liquidated or when the amount claimed is unliquidated but can be calculated with reference to a fixed standard in a contract. Id. The amount must be capable of calculation with "exactness, without reliance on opinion or discretion." Safeco Ins. Co. v. Woodley, 150 Wn.2d 765, 773, 82 P.3d 660 (2004) (quoting Prier v. Refrigeration Eng'g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968)).
To support its good faith argument, AAAA claims the damages were liquidated as of the collision because Cruson did not dispute his liability or damages owed. To support this contention, AAAA cites Walla Walla County Fire Protection Dist. No. 5 v. Washington Auto Carriage Inc., where parties agreed to the amount of damages incurred. 50 Wn. App. 355, 358-59, 745 P.2d 1332 (1987). "Since the evidence was not in dispute, the amount claimed by the Fire District for the truck was easily computed by the jury and was, therefore, a liquidated claim." Id. at 359. The case further concludes "[p]rejudgment interest may be properly awarded from the date a claim becomes liquidated . . .Applying these rules here, prejudgment interest began to accrue at the time of the loss of the truck." Id. at 359-360. However, the Walla Walla Court admitted that "[t]he circumstances presented here are unique." Id. at 358. The truck was brand new, completely destroyed and the parties agreed to the fair market value of the fire truck and equipment at the time of the fire. Id. at 356. As a result, the parties knew the amount of damages as of the destruction of the truck. Walla Walla is not the rule of general application; it is an exception.
Here, we do not have the unique set of circumstances akin to those found in Walla Walla — this is not a case of a new car totaled in an accident upon driving off the car lot. AAAA gives no evidence that the damages were immediately ascertainable as of the moment of the accident. The prejudgment interest is only available as of the time the damages were calculable. AAAA was not legally entitled to prejudgment interest before the sum was fixed and not disputable. Since the damages were not immediately determinable, prejudgment interest was improperly calculated from the time of the accident.
The Walla Walla decision notes that it is based on a unique set of facts. General application of a decision explicitly applied to unique facts is not an arguable interpretation of the law. As a result, AAAA's calculation of prejudgment interest from the moment of an accident, when the amount of damages was unknown, does not show good faith.
3. Trade or Commerce
AAAA argues that the issue of prejudgment interest arose as part of a lawsuit, and, therefore, did not occur in trade or commerce as required by the CPA. "Once the lawsuit was filed, this matter was under the aegis of and subject to the control of the courts; as such, it was a private dispute." Blake v. Fed. Way. Cycle Ctr., 40 Wn. App. 302, 312, 698 P.2d 578 (1985) (behavior of a motorcycle company during a lawsuit was not part of trade or commerce); see also, Guijosa v. Wal-Mart Stores Inc., 144 Wn.2d 907, 921, 32 P.3d 250 (2001) ("[t]he act or practice must relate to out-of-court conduct). However, AAAA ignores the specific application of the CPA to a collection agency in Evergreen Collectors v. Holt, 60 Wn. App. 151, 803 P.2d 10 (1991). While Evergreen Collectors applies to a per se violation of the CPA as a result of transgressions of the Washington Collection Agency Act, the court noted that lawsuits are a part of the business of a collection agency.
[T]he language in Blake indicating that the filing of a lawsuit took the defendant's ensuing conduct out of the sphere of trade or commerce does not apply here, where the very business of a collection agency often requires it to sue debtors in court. In light of the Collection Agency Act's clear intention to bring collection agency activities within the coverage of the Consumer Protection Act, it would be ludicrous to hold that an agency's tactics after filing suit are exempt from such coverage.
Id. at 156-57. In the case of most business, like the retail establishments in Blake and Guijosa, lawsuits are private disputes that occur peripherally to their chosen trade or commerce. Because AAAA routinely files lawsuits against debtors as part of its business, the agency's conduct, pleadings, affidavits and testimony within those lawsuits should be considered within the sphere of trade or commerce.
4. Public Interest Impact
The standard for public interest impact depends on whether the dispute was a consumer or private transaction. Hangman Ridge, 105 Wn.2d at 790. Consumer transactions ordinarily involve purchases of products. Id. (citing Haner v. Quincy Farm Chems., Inc., 97 Wn.2d 753, 649 P.2d 828 (1982) (farmer purchased defective wheat seed); Lidstrand v. Silvercrest Indus., 28 Wn. App 359, 623 P.2d 710 (1981) (plaintiff purchased defective mobile home)). Private disputes are essentially contract disputes affecting no one but the parties to the contract. Lightfoot v. MacDonald, 86 Wn.2d 331, 334, 544 P.2d 88 (1976). Private disputes become matters of public interest when it is likely that additional plaintiffs have been or will be injured in exactly the same fashion. Hangman Ridge, 105 Wn.2d at 790. Several factors are evaluated to determine if a public interest arises from a private dispute. "(1) Were the alleged acts committed in the course of defendant's business? (2) Did defendant advertise to the public in general? (3) Did defendant actively solicit this particular plaintiff, indicating potential solicitation of others? (4) Did plaintiff and defendant occupy unequal bargaining positions?" Id. at 790-91. These factors are not dispositive of a public interest impact and not all factors must be present. Id. at 791.
AAAA concedes that Cruson established that the complaint was filed as part of its business of collecting judgments but contends that he failed to show the other factors. AAAA does not advertise to the general public and did not solicit Cruson's business. However, the unequal bargaining positions of the two parties is clear — Cruson is the debtor over whom AAAA has the power to collect money, garnish his wages and suspend his license. Two of the four factors are present. In addition, Cruson introduced evidence of 89 other default judgments that included the same language and obtained prejudgment interest. These judgments demonstrate that others are not only likely to be injured in the same manner, but have experienced such injury. Cruson proved a public interest impact required for a CPA claim.
5. Injury
AAAA contends that Cruson has only alleged personal injuries and inconvenience, not injury to business or property as required by the CPA. Cruson alleges that AAAA had a judgment against him to which it was not entitled, that AAAA did not rectify the situation when notified, and that AAAA unnecessarily lengthened the time he was without his driver's license.
The CPA uses the term "injury" instead of "damages" which demonstrates that no monetary damages need be proven. Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 740, 733 P.2d 208 (1987); See also, RCW 19.86.090. Furthermore, "nonquantifiable injuries, such as loss of goodwill would suffice." Nordstrom, 107 Wn.2d at 740. For the purposes of the CPA, "unlawful interest is a financial injury." Cuevas v. Montoya, 48 Wn. App. 871, 878, 740 P.2d 858 (1987). In a CPA claim based on violation of the usury statute, the appellate court found injury even though the borrower had not paid the entire principal or valid interest. Id. Similarly, in this case the unlawful prejudgment interest obtained through the default judgment is a financial injury and an impairment of Cruson's credit. The fact that Cruson had not paid the valid portions of the judgment which also impair his credit does not negate his injury. Since he did not pay the illegal interest, he has no claim to reimbursement for the amount, but this does not mean he suffered no injury.
The trial court found that the loss of his driver's license injured Cruson by restricting his freedom of movement and awarded him $2,500. However, Cruson's poor payment history impedes his ability to recover damages for the loss of his driver's license. Because we disallow the credit of the improperly disposed of garnished wages, Cruson had only repaid $525 — not enough to cover the amount of the default judgment excluding the prejudgment interest. Suspension of the driver's license is statutorily authorized if a judgment is outstanding for a driving related debt. Since a portion of the valid judgment remained unpaid, suspension of Cruson's license was not improper. Wolf agreed to help Cruson get his license back only if Cruson made monthly payments. Cruson failed to make regular payments so the lien remained on his license. The suspension of Cruson's driver's license would have continued even if AAAA had not taken a judgment including interest to which it was not entitled. The legitimate outstanding debt prevented return of the license, regardless of the prejudgment interest issue. The loss of Cruson's license and the failure to authorize its reinstatement did not result from AAAA's unfair or deceptive acts. Therefore, the license suspension does not qualify as an injury under the CPA or for the purposes of calculating damages. The trial court did not err in finding that Cruson was financially injured by the prejudgment interest. It did err in its determination that Cruson's movement was restricted. The $2,500 award for restriction of movement should be vacated and the case remanded to correct the judgment.
6. Causation
AAAA's final dispute on the merits of the CPA relates to causation because Cruson admitted that he did not pay off the judgment or make regular payments as required by Wolf to remove the lien on his license. "And any fair view of what happened here leads inevitably to the conclusion that Cruson truly brought these troubles on himself." However, the "financial injury" was sustained as a result of the improperly obtained interest within the judgment. This was solely within the control of AAAA. The injury was caused by the Agency's action.
Cruson proved the five Hangman Ridge factors. Hangman Ridge, 105 Wn.2d at 780. We conclude that the trial court did not err in concluding that AAAA's request for prejudgment interest in violation of CR 54(c) was a CPA violation. However, the trial court did err in its award of damages based on the violation.
IV. Washington Collection Agency Act
In addition to his CPA claim, Cruson alleges violation of the WCAA.
Cruson contends that AAAA engaged in acts constituting the practice of law as prohibited by the WCAA. The trial court disagreed.
There is no evidence that defendant, when filling out forms, exercised discretion in choosing among other available forms when all it did was fill in the blanks in the form with routine factual information, such as the form for obtaining a default judgment. Furthermore, this was all followed up by the (presumed review and) signature of defendant's attorney, John Farver. This court finds that this conduct does not constitute the unauthorized practice of law.
Pat Mitchell, the "legal department" of AAAA is not an attorney. She entered the names, dates, and amounts of money requested in forms prepared by attorney John Farver. "[W]hen the role of lay persons in selecting and completing form legal documents is reduced to entering objective data, the lay person's actions are unlikely to result in the uncertain legal rights with which this court has been concerned." Perkins v. CTX Mortgage Co., 137 Wn.2d 93, 106, 969 P.2d 93 (1999). As long as lay employees do not exercise "legal discretion" they can prepare documents. Id. While Cruson contends that the decision to include prejudgment interest and its calculation is more than objective data entry, he ignores that Farver signed all the documents. Under CR 11, Farver's signature certifies that he has reviewed the documents and verified their contents. Cruson has not presented evidence to show that Farver did not actually review the documents before signing them. The lay employees of AAAA merely filled in blanks of pre-prepared forms, subject to review by a licensed attorney. AAAA did not practice law in violation of RCW 19.16.250(5).
Cruson also claimed that AAAA unlawfully "procure[d] from a debtor or collect[ed] or attempt[ed] to collect on any written note, contract, stipulation, promise or acknowledgement under which a debtor may be required to pay any sum other than principal, [or] allowable interest." RCW 19.16.250(19). This allegation is based on the agreement Wolf made that he would freeze the interest and assist Cruson in obtaining his license if Cruson would make regular, monthly payments. The trial court denied recovery under RCW 19.16.250(19) because "[t]here is no evidence that plaintiff ever received, let alone signed, the agreement to freeze interest or in any way became legally bound to its terms." While Wolf testified that he sent copies of the agreement to Cruson, Cruson admitted that he did not sign any agreement. No such written agreement was on record. Without a written agreement, the requirements of RCW 19.16.250(19) are not met. The trial court properly concluded AAAA did not violate this provision.
V. Deductible
Cruson argues that AAAA wrongfully collected the insured's deductible without notice or confirmation that the deductible was paid or that Safeco requested its collection. The trial court determined this claim was barred by res judicata. The trial court did not err in this determination. The deductible, although not specifically enumerated, was included within the $648.98 listed in the complaint. Cruson could have and should have litigated the propriety of inclusion of the deductible as part of the district court claim. In addition, the $100 deductible was not found invalid as a matter of law and effectively set aside by the summary judgment in the equivalent of a CR 60(b)(5) motion. As a result, Cruson is still bound by this portion of the judgment and must move to have it set aside under CR 60(b). There is no evidence that the deductible was improperly obtained since it was included in the collection referral from Safeco, which requested $648.98 instead of the $548.98 paid for repair of the damaged automobile. This claim is barred.
VI. Attorney Testimony
"A trial court's order granting or denying a motion to quash a subpoena is reviewed for abuse of discretion." Eugster v. City of Spokane, 121 Wn. App. 799, 807, 91 P.3d 117 (2004). A trial court abuses its discretion when it bases a decision on untenable grounds. Luckett v. Boeing Co., 98 Wn. App. 307, 309-10, 989 P.2d 1144 (1999). Cruson contends that the trial court abused its discretion by quashing its subpoena for John Farver, AAAA's attorney. He states that "AAAA . . . did not offer any evidence that Mr. Farver actually had a role in making legal determinations or drafting documents, the court simply `presumed' he did. AAAA counters that Cruson wanted Farver to authenticate self-authenticating documents and explain his actions which are privileged. Appellant's Reply 41. He also states that Cruson only made vague allusions to the testimony he wanted to extract from Farver.
Cruson contends that Wolf's log notes show that Wolf drafted legal documents and sent them to Farver to sign and present as his own work. It is not alleged that Farver had not signed those documents. The trial court presumed that Farver prepared or, at least, reviewed the documents because Farver signed all the legal documents produced into evidence, including the summons and complaint and motion for default judgment. The trial court's presumption was appropriate under CR 11: an attorney's signature constitutes a certificate that the attorney has read the document and believes them to be well grounded, warranted by law and not imposed for an improper purpose. CR 11(a). The evidence does not provide a showing that Farver failed to perform his legal duties. Nor did Cruson demonstrate that his intended inquiry was not protected by attorney-client privilege. On these facts, we conclude that the trial court did not abuse its discretion when it quashed the subpoena.
VIII. Fees on Appeal
Cruson requests fees on appeal based on the provision for attorney fees in the CPA, RCW 19.86.090, and as the prevailing party under RCW 4.84.030. Because we affirm the CPA claim, Cruson receives fees for that portion of the appeal. However, as Cruson does not prevail in our determinations of the garnishment issue and cross-appeal, fees are precluded as they pertain to those issues.
We affirm in part and reverse in part, and remand for recalculation of the judgment minus the credit for the garnished wages and the award for deprivation of movement.