Opinion
No. 33501-8-II.
August 29, 2006.
Appeal from a judgment of the Superior Court for Lewis County, No. 01-2-00674-4, Nelson E. Hunt, J., entered July 8, 2005.
Counsel for Appellant(s), Daniel G. Lloyd, Lee Smart Cook Martin Patterson PS Inc, Seattle, WA.
Gregory Paul Turner, Lee Smart Cook et al, Seattle, WA.
Counsel for Respondent(s), Thomas F. Gallagher, Law Offices of Watson Gallagher, Milton, WA.
Affirmed by unpublished opinion per Quinn-Brintnall, C.J., concurred in by Hunt and Van Deren, JJ.
Vickie Hull appeals the trial court's denial of her motions to vacate under CR 60(b)(5) and her motion to clarify the judgment under CR 60(a). John Richardson served Vickie and Joseph Hull. They did not answer or appear and Richardson filed a motion for order of default. The order of default was granted. The Hulls' attorney moved to vacate the order of default. The trial court denied Vickie's motion to vacate the order of default and subsequent motion for reconsideration. Vickie did not appeal this denial. The trial court entered judgment on the order of default. We affirm because (1) Vickie was not entitled to notice; and (2) she cannot appeal alleged substantive defects in the default judgment via a CR 60(a) motion.
We use the Hulls' first names for clarity.
FACTS
The facts relevant to this appeal are undisputed. Richardson sued the Hulls for damages arising from a physical altercation between Joseph and Richardson on December 11, 2000. Richardson served the Hulls with a copy of the summons and complaint on June 15, 2001. Vickie was specifically named as a defendant in both the complaint and the summons. The Hulls did not answer or appear. The trial court granted Richardson an order of default on July 11, 2001.
The complaint caption read: `JOHN RICHARDSON, Plaintiff, v. JOSEPH HULL and VICKIE HULL, and the marital community comprised thereof.' Clerk's Papers (CP) at 207.
Vickie's counsel filed a notice of appearance on July 26, 2001, and an amended notice of appearance on August 3, 2001, then moved to set aside the default order. The trial court denied the motion to set aside the default on March 29, 2002. And on March 7, 2003, the trial court entered a default judgment for Richardson in the amount of $500,000.
The Judgment Summary listed the judgment debtor as `Joseph Hull and Vickie Hull.' CP at 96.
The Hulls divorced in June 2003. The dissolution decree provided that Joseph was responsible for all debt and liability incurred as a result of any judgment Richardson obtained.
On May 13, 2005, Vickie moved to set aside and vacate the March 7, 2003 default judgment asserting that this judgment was void because Richardson did not provide her with notice of the entry of the default judgment as required by CR 55(f). The trial court denied her motion. Vickie also moved for the trial court to clarify the default judgment under CR 60(a). Specifically, she requested that the trial court clarify whether the judgment was against her, individually and her share of the community, or against Joseph only. She contended that the trial court made a clerical error because substantive law precluded the trial court from reaching her share of the community assets or making her individually liable for her husband's intentional tort. On July 1, 2005, the trial court denied Vickie's CR 60(a) motion stating: `[t]his is a judgment that was entered the way it was entered, and there is nothing — there is no typo or error that could be correctable.' Report of Proceedings (RP) (July 1, 2005) at 10. Responding to counsel's question of whether the judgment was collectable against all of Vickie's assets or just her community assets, the trial court replied: `Well, it seems to me that it's against her in every sense of the word . . . individually and against the community.' RP (July 1, 2005) at 12. Vickie filed a notice of appeal on July 8, 2005. We address two questions: (1) whether Vickie was entitled to notice of the default judgment; and (2) whether the court abused its discretion by denying Vickie's CR 60(a) motion. We answer both of these questions in the negative.
Hull's CR 60(a) motion is labeled in one part of the record as a motion for partial relief from judgment and in another part of the record as a motion to clarify. This opinion refers to her June 15 and June 30, 2005 pleadings as a motion to clarify.
ANALYSIS
Vickie first argues that, under CR 55(f)(1), she was entitled to notice before the trial court entered the default judgment. But `[i]n general, once a defendant has been adjudged to be in default, he is not entitled to notice of subsequent proceedings.' Conner v. Universal Utils., 105 Wn.2d 168, 172, 712 P.2d 849 (1986). CR 55(f) mandates notice if over one year has elapsed and the party appears. But this rule does not apply here because a party cannot `appear' for purpose of default judgment after a court enters a default order against her. See Pedersen v. Klinkert, 56 Wn.2d 313, 320, 352 P.2d 1025 (1960) (holding that, under common law, a defendant in default is not entitled to further notice and cannot contest subsequent proceedings); C. Rhyne Assoc. v. Swanson, 41 Wn. App. 323, 326, 704 P.2d 164 (1985) (holding that the enaction of similar notice provisions under CR 55(a)-(b) did not abrogate the common law rule of Pedersen); Hyde v. Heaton, 43 Wash. 433, 440-41, 86 P. 664 (1906) (interpreting statute, now codified in identical form as RCW 4.28.210, defining `appearance'). Thus, Vickie's argument has no merit.
Second, Vickie argues that the trial court abused its discretion when it denied her CR 60(a) motion because it gave untenable reasons justifying its denial. We review the trial court's decision to grant or deny a CR 60(a) motion for an abuse of discretion. Presidential Estates Apartment Assoc. v. Barrett, 129 Wn.2d 320, 325-26, 917 P.2d 100 (1996). A party can move under CR 60(a) at any time. CR 60(a). But CR 60(a) allows a trial court to grant relief from judgments only for clerical mistakes, such as mathematical miscalculations or unintentional mistakes in a property description. The rule cannot be used to effect substantive changes or correct judicial errors. See Presidential Estates, 129 Wn.2d at 326; 15 Karl B. Tegland, Washington Practice: Civil Procedure, sec. 39.4, at 68 (2003). The test for distinguishing between `judicial' and `clerical' errors is whether, based on the record, the judgment embodies the trial court's original intention. Presidential Estates, 129 Wn.2d at 326.
CR 60(a) provides in part: `[c]lerical mistakes in judgments . . . arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party.'
Vickie maintains that it was clerical error for the trial court to impose liability on her share of the community assets and her, individually, because the trial court intended only Joseph to be liable. She maintains that the trial court could not have intended that she be individually liable because there was no allegation that she assisted Joseph in the tort and, an individual judgment against a non-tortfeasor spouse is void. She also maintains that the trial court could not have intended that her share of the community be liable because the trial court did not find and the record does not support that the community benefited from Joseph's tort and without such a finding, her share of the community is not liable.
But the merits of these claims notwithstanding, Vickie's arguments stem from an alleged judicial error, not clerical error. The default order and subsequent judgment were predicated upon Richardson's complaint, which was served upon Vickie, personally, and lists her as a defendant. The summons specifically names Joseph, Vickie, and their marital community as defendants. Vickie did not timely appear and present her defenses to Richardson's claims. The trial court's conclusions of law state that the `defendants' are liable to Richardson. Since Vickie was a named defendant, this included her. The default judgment individually lists the Hulls as judgment debtors. The trial court did not abuse its discretion in finding the absence of a clerical error.
Whether substantive law permits the result reached in this case is irrelevant to the CR 60(a) inquiry presented in this appeal. Substantive legal errors cannot be cured through a CR 60(a) motion. They must be timely raised and preserved for direct appeal. Vickie waived her right to appeal the substance of the default order by failing to file a notice of appeal within 30 days. See RAP 5.2(a). She cannot now revive her appeal right via a CR 60(a) appeal.
Accordingly, we affirm.
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.
HUNT, J. and VAN DEREN, J., concur.