Opinion
No. 53379-7-I
Filed: January 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 92-2-00453-2. Judgment or order under review. Date filed: 11/14/2003. Judge signing: Hon. James H Allendoerfer.
Counsel for Petitioner(s), Raymond J Jr Dearie, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Counsel for Respondent(s), Carl A. Taylor Lopez, Lopez Fantel, 1510 14th Ave, Seattle, WA 98122-4024.
Dallas D. Swank and his wife filed suit against Snohomish County in 1992 for injuries sustained by Swank during a sheriff's department exercise. Later that year, the County moved for summary judgment. The trial court ruled in favor of the County, but no order was entered. In 1993, the court granted dismissal upon motion of the court clerk for failure to prosecute under CR 41(b)(2). The Swanks claim that they did not receive notice of the dismissal and did not know of the dismissal until 2000. The Swanks brought a motion in 2003 to vacate the dismissal, which the trial court granted. The County moved for discretionary review, which this court granted. We reverse. The summary judgment proceedings and the lack of an order should have tolled the operation of CR 41(b)(2). An error of law, however, is not correctible through CR 60. Furthermore, assuming that the Swanks did not receive notice of the dismissal, they still failed to challenge the dismissal within a reasonable time. We decline to reverse the trial court's decision not to award attorney fees to the County.
FACTS
In August 1987, Dallas D. Swank, a deputy in the Snohomish County Sheriff's Department, was injured when he fell while trying to rappel from a helicopter. Swank and his wife filed suit against Chouinard Equipment, the maker of the harness used in the rappel, against James Duffy, who allegedly placed the harness on Swank, and others. He did not name Snohomish County as a defendant.
In January 1992, Swank and his wife filed a separate lawsuit against Snohomish County. Snohomish County moved for summary judgment, and the trial court granted it. Snohomish County, however, did not present a written order regarding the summary judgment, and no order for summary judgment was entered.
In December 1993, the trial court dismissed the Swanks' action against Snohomish County for want of prosecution under CR 41(b)(2). As evidence that the County properly mailed notice of the pending dismissal to the counsel for the Swanks, the County produced a declaration by Mark W. Allen, the case management and document control manager for the Snohomish County Clerk's Office since 1999. In the declaration, Allen described the custom of his office when a case becomes eligible for dismissal under CR 41(b)(2). When a case becomes eligible for a CR 41(b)(2) dismissal, a Notice for Dismissal for Want of Prosecution is mailed to all attorneys of record and parties pro se who have appeared and provided an address. As part of his declaration, Allen provided a copy of a notice for dismissal of the Swanks' case against the County. In the text of the document is a statement that the document had been mailed on November 12, 1993. In his declaration, Allen stated that the notice was mailed on November 12, 1993, to the counsel for the Swanks and for the County. Allen also stated that he searched the court file in May 2002 and found no evidence of the Swank counsel mailing being returned as undeliverable.
Carl A. Taylor Lopez, counsel for the Swanks, states that he did not receive the notice of dismissal. Lopez states that he first learned of the dismissal in May 2000 while moving the trial court to revise a 1992 order denying joinder of the County to the Duffy suit.
The court ruled against joinder of the County to the Duffy lawsuit in June 2001. In May 2002, the Swanks moved for a transfer of venue of their lawsuit against the County. The motion was denied in September 2002. In September 2003, the Swanks moved to vacate the 1993 dismissal. On November 17, 2003, the trial court granted the motion. The County moved for discretionary review, which this court granted.
ANALYSIS
We first address whether the trial court erred in 1993 in dismissing the Swanks' suit against Snohomish County. Under CR 41(b)(2), the clerk of the court shall note a motion to dismiss a civil action if `no action of record has occurred during the previous 12 months.' A ruling on a motion for summary judgment tolls the operation of the rule for dismissal without prejudice for want of prosecution. Nicacio v. Yakima Chief Ranches, Inc., 63 Wn.2d 945, 948, 389 P.2d 888 (1964) (construing former Rule of Pleading, Practice and Procedure 41.04W, the predecessor of CR 41(b)). The operation of the rule is further tolled until the issues raised by the summary judgment motion are resolved by the entry of an order. Nicacio, 63 Wn.2d at 948. In this matter, the summary judgment proceedings in 1993 should have tolled the operation of CR 41(b). Without the entry of an order, there was no further action of record to take. Because an order granting summary judgment was not entered, the trial court erred in dismissing the suit. We must therefore determine whether this error constitutes sufficient grounds for vacating the dismissal. We conclude that it does not. CR 41(b)(2) does not provide a mechanism for reinstating a case because of an error of law. As we explain later in this opinion, no basis for vacating the dismissal exists under CR 60. The summary judgment proceeding in 1992 and the lack of an order therefore did not constitute a sufficient reason for vacating the dismissal in 2003.
We next analyze the Swanks' argument that they are entitled to reinstatement because they allege that they did not receive notice of the dismissal. A party who does not receive notice from the clerk of the court of an impending dismissal of a case under CR 41(b)(2) is entitled to reinstatement of the case upon motion brought within a reasonable time after learning of the dismissal. CR 41(b)(2)(B). A party seeking to prove mailing must show (1) an office custom with respect to mailing and (2) compliance with the custom in the specific interest. Scheeler v. Dep't of Employment Sec., 122 Wn. App. 484, 488-89, 93 P.3d 965 (2004). Once a party proves the item was mailed, the law presumes that the item was received by the person to whom it was addressed. Scheeler, 122 Wn. App. at 489. The County argues that the court clerk mailed notice and provides a declaration from Allen attesting to the custom of his office to mail out notice and adherence to the custom for the dismissal of the Swanks' case. Allen has been the manager only since 1999, however, and his declaration does not satisfy the requirements of proof of the custom in 1993. The presence of a copy of the notice in the clerk's file establishes only that the document was generated, not that it was mailed.
The clerk shall mail notice of impending dismissal no later than 30 days after the case becomes eligible for dismissal because of inactivity. A party who does not receive the clerk's notice shall be entitled to reinstatement of the case, without cost, upon motion brought within a reasonable time after learning of the dismissal. CR 41(b)(2)(B).
The Swanks therefore make a credible argument that the County has not established proof of mailing. But even if the Swanks did not know about the dismissal until 2000, they still failed to move for reinstatement within a reasonable time. What constitutes a reasonable time depends on the facts and circumstances of each case. Luckett v. Boeing Co., 98 Wn. App. 307, 312, 989 P.2d 1144 (1999) (construing the phrase `within a reasonable time' in CR 60(b)). The critical period is the period between when the moving party became aware of the judgment and the filing of the motion. Luckett, 98 Wn. App. at 312. A major consideration is whether the moving party has good reasons for failing to take appropriate action sooner. Luckett, 98 Wn. App. at 312-13. Three years passed between the time the Swanks say they discovered the dismissal and the time they made a motion to vacate the dismissal. The Swanks argue that during this three-year period, they attempted to reinstate their case against the County through joinder in the Duffy case and a change of venue. But a motion to reinstate under CR 41(b)(2) is a more appropriate response to a CR 41(b)(2) dismissal than attempts at joinder or a change of venue. Furthermore, eleven months passed between the denial of joinder in 2001 and the Swanks' motion for a change of venue in 2002, and twelve more months elapsed between the denial of the motion for a change of venue in 2002 and the Swanks' motion in 2003 to vacate the dismissal. Under any scenario, the Swanks did not move within a reasonable time to set aside the dismissal.
We next examine the Swanks' argument that the dismissal in 1993 was void for lack of jurisdiction and could therefore be vacated under CR 60(b)(5). A court may relieve a party from a final judgment when the judgment is void. CR 60(b)(5). A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction of the parties or of the subject matter or which lacks the inherent power to make or enter the particular order involved. State ex rel. Turner v. Briggs, 94 Wn. App. 299, 302-03, 971 P.2d 581 (1999). Errors of law, however, are not correctable through CR 60(b); rather, direct appeal is the proper means of remedying legal errors. Burlingame v. Consolidated Mines Smelting Co., 106 Wn. 2d 328, 336, 722 P.2d 67 (1986). An error of law is not an absence of jurisdiction. The trial court acted in error, but this error did not strip the court of jurisdiction. Furthermore, the Swanks do not claim, nor could they claim, that the trial court lacked the inherent power to enter a dismissal or that it lacked personal jurisdiction over them or subject matter jurisdiction over their tort claim. The Swanks were therefore not entitled to reinstatement of their case under CR 60(b)(5).
The Swanks also claim that they were entitled to relief under CR 60(b)(11) or CR 60(a). A motion for relief under CR 60(b)(11) must be made within a reasonable time. The Swanks did not bring a motion for relief within a reasonable time, and therefore, they cannot rely on CR 60(b)(11). Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court or on motion of any party. CR 60(a). The 1993 dismissal of the Swanks' case, however, was not the result of a clerical error in the record. Therefore, CR 60(a) is not applicable.
Likewise, any reliance upon CR 60(b)(1), even assuming that it applies, is barred because of the Swanks' failure to move for relief within the time period specified in CR 60(b).
The County contends that the trial court should have awarded it attorney fees under CR 11 and RCW 4.84.185. We do not believe that the Swanks' claims are so void of merit as to justify attorney fees for the County, given the Nicacio decision and the Swanks' argument about the absence of proof of mailing of notice of the dismissal. We therefore decline to instruct the trial court to grant such fees.
The trial court's decision to vacate the dismissal of the Swanks' action against the County is reversed.
SCHINDLER, J. and ELLINGTON, A.C.J., concur.