Mdb Landmark Llc, V. William Washington ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MDB LANDMARK LLC,
No. 84855-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
WILLIAM WASHINGTON,
Appellant.
BIRK, J. — William Washington appeals an order granting MDB Landmark
LLC’s motion to find him in default and an order denying Washington’s motion to
vacate that default order. Because he provides no basis for relief, we affirm.
I
On October 14, 2022, MDB’s attorney signed a complaint, alleging it owned
a commercial property, Washington was a tenant of that property, and he failed to
pay rent and other lease charges for months before vacating the premises. MDB
requested a judgment against Washington and an award of attorney fees and
costs. On October 17, 2022, MDB’s attorney signed a summons.
The same day, MDB’s attorney signed a letter addressed to Washington,
informing him that he has been served with a lawsuit but it had not been filed in
court yet. MDB requested a settlement offer within seven days of service of the
lawsuit to resolve the dispute “without going through the court.” In the absence of
progress toward reaching a settlement, MDB would proceed with filing the lawsuit
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with the court. If Washington did not timely respond, MDB would file the lawsuit
and seek a default judgment. MDB cautioned Washington to “[r]eview closely the
deadline in your summons.” On October 20, 2022, MDB caused the letter,
complaint, and summons to be served on Washington.
On November 10, 2022, the day after the 20 day deadline for Washington
to answer the complaint, MDB filed the complaint, summons, a motion for default,
and a calendar notice for the motion, and requested a hearing date for November
28, 2022. In its declaration in support of its motion, MDB stated, “No one has
answered for defendant William Washington. Defendant has emailed me, so we
are giving him notice of this motion by email and emailing him the pleadings.” MDB
timely served the motion on Washington via U.S. Mail. The same day, MDB
asserts, it received a letter in which Washington stated he received MDB’s October
17, 2022 letter. Washington requested from MDB the amount he allegedly owed
and any ledger or itemized account statement MDB relied on to support its claim.
In an e-mail exchange on November 11, 2022, MDB told Washington they
would “stay the lawsuit” if he came current with back rent and stayed current until
the space was filled. Washington replied, “[W]e are certainly not in a position to
come current or continue paying the lease which is why we are at this point in the
first place,” and asked for a current balance. MDB noted the current balance owed
at that time was “roughly 21,000.” On November 12, 2022, Washington offered
$10,500 to be paid over 120 days to settle the matter, which MDB rejected two
days later. Washington did not respond to the motion for default. On November
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23, 2022, the superior court granted MDB’s motion for an order of default against
Washington.
On November 28, 2022, Washington moved to vacate the default order.
Washington argued he did not believe there was a deadline to submit an answer
or formally appear until after negotiations broke down and the superior court
improperly signed an order granting a default judgment five days before the
hearing was scheduled. MDB opposed Washington’s motion, arguing it never
received a settlement offer within seven days after service of the lawsuit,
Washington’s offer came after receiving MDB’s motion for default, Washington
never asked for a continuance of the motion, and Washington never filed or served
an answer.
On December 13, 2022, the superior court signed an order denying
Washington’s motion to vacate the default order finding, “Defendant has not shown
good cause under CR 55(c).” The order was filed the following day. On December
27, 2022, MDB filed a motion for entry of judgment and for attorney’s fees and
costs. Washington appeals.
II
A
We begin by identifying what orders and arguments are properly before us.
Washington’s notice of appeal designates the November 23, 2022 order
granting MDB’s motion for order of default. He did not designate the December
14, 2022 order denying his motion to vacate the default. However, he attached
both orders to his notice of appeal. A notice of appeal must designate the decision
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that the appealing party wants reviewed and the party filing the notice of appeal
should attach to the notice a copy of the signed order or judgment from which the
appeal is made. RAP 5.3(a). We will disregard defects in the form of a notice of
appeal if the notice clearly reflects an intent by a party to seek review. RAP 5.3(f).
Because Washington attached both orders and clearly argues the denial of his
motion to vacate was erroneous, we exercise our discretion to review both orders.
See S & K Motors, Inc. v. Harco Nat’l Ins. Co., 151 Wn. App. 633, 639, 213 P.3d
630 (2009) (exercising discretion to review an undesignated, final appealable order
after finding the notice of appeal clearly reflected the appellant’s intent to seek
review of the issues decided in that order).
Absent broad references to the “United States Constitution” and
“Washington State Constitution” and a citation to a case we have not been able to
locate,1 Washington has not cited authority in support of his arguments on an
alleged due process violation. “We generally ‘do not address issues that a party
neither raises appropriately nor discusses meaningfully with citations to
authority.’ ” CalPortland Co. v. LevelOne Concrete, LLC, 180 Wn. App. 379, 392,
321 P.3d 1261 (2014) (quoting Saviano v. Westport Amusements, Inc., 144 Wn.
App. 72, 84, 180 P.3d 874 (2008). We recognize that Washington is a pro se
litigant, but we hold pro se litigants to the same standards as attorneys. In re
Vulnerable Adult Pet. for Winter, 12 Wn. App. 2d 815, 844, 460 P.3d 667 (2020).
Despite the lack of authority cited in his brief, the basis for Washington’s appeal is
1 Washington cites “Hylton v. Arete Joint Venture (833 P.2d 380).” Entering
the reporter citation into Westlaw’s search bar directs us to Bird-Johnson Corp. v.
Dana Corp., 119 Wn.2d 423, 432, 833 P.2d 375 (1992).
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clear. MDB did not file a brief with this court and therefore does not allege any
unfair prejudice resulting from the adequacy of Washington’s briefing.2
Accordingly, we exercise our discretion and consider Washington’s arguments.
B
Washington argues his due process rights were violated when the superior
court denied his motion to vacate the default order due to “procedural irregularities”
and despite Washington’s ongoing negotiations with MDB. We disagree.
Due process requires only that a party receive proper notice of proceedings
and an opportunity to present their position to the court. Rivers v. Wash. State
Conf. of Mason Contractors, 145 Wn.2d 674, 697, 41 P.3d 1175 (2002). A
defendant must file an answer to a complaint within 20 days after service of the
summons and complaint. CR 12(a)(1). A summons must require the defendant
to serve a copy of the defendant’s answer based on the same time period. CR
4(a)(2). King County Local Civil Rules (KCLCR) 7(b)(4)(A) requires a moving party
to serve and file all motion documents no later than nine judicial days before the
date the party wishes the motion to be considered. A response must be served
and filed no later than four judicial days before the date the motion is to be
considered. KCLCR 7(b)(4)(D).
Washington’s due process rights were not violated. MDB’s summons
complies with the requirements of CR 4(a)(2). The summons informed
2 In a letter dated April 2, 2024, MDB advised this court that “[d]ue to costs,
MDB Landmark will not be filing a brief of respondent in this matter. MDB
Landmark leaves it to this Court to determine, under the facts and applicable law,
the merits of the trial court’s order declining to vacate.”
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Washington that a lawsuit had been commenced against him and in order to
defend against the lawsuit, Washington was required to respond to the complaint
by stating his defense in writing and serving a copy within 20 days after service of
the summons. The summons told Washington that he may demand MDB file the
lawsuit with the court. After MDB filed its motion for default to be heard on
November 28, 2022, KCLCR 7(b)(4)(D) required Washington to file a response no
later than November 21, 2022. Because the motion was to be heard without oral
argument and Washington failed to file a response on that day, the superior court
granted MDB’s motion, albeit before the hearing date. Even if settlement
negotiations could be considered ongoing, the deadlines imposed by the state and
local court rules were unchanged. Washington received proper notice of the
proceedings and an opportunity to present his position to the court, and due
process requires no more.
When a party against whom a judgment for affirmative relief is sought has
failed to appear, plead, or otherwise defend as provided by the rules and that fact
is made to appear by motion and affidavit, a motion for default may be made. CR
55(1)(a). The court may set aside an entry of default “[f]or good cause shown and
upon such terms as the court deems just.” CR 55(c)(1). “The general rule is that
‘[t]o establish good cause under CR 55, a party may demonstrate excusable
neglect and due diligence.’ ” Sellers v. Longview Orthopedic Assocs., PLLC, 11
Wn. App. 2d 515, 520, 455 P.3d 166 (2019) (alteration in original) (quoting In re
Estate of Stevens, 94 Wn. App. 20, 30, 971 P.2d 58 (1999)). Because a trial court
must determine what is just and equitable, a court may consider any prejudice to
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the plaintiff. Id. at 526. Unlike for a default judgment, a showing of a meritorious
defense is not required to set aside a default order. Id. at 520. Nevertheless, if a
party offers evidence of a meritorious defense, a trial court more likely abuses its
discretion should it fail to vacate a default order. In re Welfare of S.I., 184 Wn.
App. 531, 544, 337 P.3d 1114 (2014). Three general principles apply when
evaluating a motion to set aside a default order: (1) default orders are disfavored
because the preference is to resolve cases on the merits, (2) deciding whether to
set aside a default order is a matter of equity and the “ ‘primary concern is whether
justice is being done,’ ” and (3) “ ‘[w]hat is just and equitable must be determined
based on the specific facts of each case.’ ” Sellers, 11 Wn. App. 2d at 520
(alteration in original) (quoting VanderStoep v. Guthrie, 200 Wn. App. 507, 517,
402 P.3d 883 (2017)). Balanced against the courts’ preference to resolve cases
on the merits is the “necessity of having a responsive and responsible system
which mandates compliance with judicial summons, that is, a structured, orderly
system not dependent upon the whims of those who participate.” Griggs v.
Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979).
The superior court’s ultimate determination regarding the existence of good
cause to set aside a default order is reviewed for abuse of discretion. Sellers, 11
Wn. App. 2d at 520. A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds or reasons. Mayer v. Sto Indus.,
Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). We are less likely to find an abuse
of discretion when a superior court sets aside a default order than when a trial
court denies a motion to set aside a default order. Sellers, 11 Wn. App. 2d at 521.
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But if the superior court’s decision on a motion to vacate a default order “ ‘is based
upon tenable grounds and is within the bounds of reasonableness, it must be
upheld.’ ” Stevens, 94 Wn. App. at 30 (quoting Lindgren v. Rodes, 58 Wn. App.
588, 595, 794 P.2d 526 (1990)).
In S.I., the court held that the superior court did not abuse its discretion
when it denied a motion to set aside a default order. 184 Wn. App. at 544. The
State filed a petition for termination of the parent-child relationship. Id. at 536. The
parent’s social worker personally served the mother with the petition as well as a
notice and summons. Id. The notice warned that if she failed to appear for the
hearing, “ ‘the court may enter an order in your absence permanently terminating
your parental rights.’ ” Id. The notice explained important rights, including contact
information for appointment of counsel. Id. The parent did not appear at the
courthouse for the hearing, and a week later, the State filed a motion for default,
which the superior court granted. Id. at 536-37. The S.I. court affirmed, finding
the parent’s failure to read the termination petition and summons to appear was
not excusable neglect because she was aware her children were dependent and
her parental rights were in jeopardy. Id. at 544. The parent did not demonstrate
due diligence because she failed to contact her attorney until months after
appointment. Id. at 545. The S.I. court noted the parent did not offer any evidence
of a meritorious defense and the trial court properly considered the likely result of
the termination proceeding to support its decision. Id. at 544-45.
Washington decisions have upheld conclusions there was no excusable
neglect even in cases where mistakes led to parties lacking or mislaying notice of
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suit. In Brooks v. University City, Inc., a corporation’s registered agent failed to
forward the summons. 154 Wn. App. 474, 479, 225 P.3d 489 (2010). The
defendant first appeared in the lawsuit more than two years after being properly
served with a summons because its registered agent failed to forward the
summons to its legal department. Id. The Brooks court held that the trial court
had tenable reasons to conclude that the defendant failed to show excusable
neglect. Id. at 479-80. In Prest v. American Bankers Life Assurance Co., an
insurance company employee was out of town and process was “ ‘mislaid.’ ” 79
Wn. App. 93, 100, 900 P.2d 595 (1995). We held the trial court erred by finding
this was excusable, and reversed its order vacating a default judgment. Id. at 100-
01.
Under the CR 55(c)(1) “good cause” standard, the superior court had a
tenable basis to conclude Washington did not demonstrate good cause for failing
to file an answer or respond to MDB’s motion for default. MDB advised
Washington that it would file its lawsuit and motion for default after Washington did
not file an answer. MDB advised Washington that it would proceed with the lawsuit
should the parties fail to make progress in settlement negotiations, and MDB
rejected his settlement offer. Washington received process and motion papers
indicating a need to serve a response in writing to the lawsuit. Washington’s belief
that the parties were in negotiations did not vitiate his responsibilities to adhere to
the court rules. His failure to file an answer resulted from inexcusable neglect and
he never offered any evidence of a meritorious defense. While Washington timely
moved to vacate the default order, he nevertheless did not show justification for
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not answering. The superior court did not abuse its discretion by finding
Washington had not shown good cause to vacate its default order.
Affirmed.
WE CONCUR:
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