Chapter §55.6 Analysis

• Jurisdiction: Washington

§55.6ANALYSIS

The following section discusses the applicable criteria and considerations for obtaining and vacating or setting aside orders of default and default judgments. It also discusses the standard of appellate review.

(1)What constitutes an appearance

CR 55(a)(3) requires notice to any party who has appeared for any purpose. The question of what constitutes "appearance" almost always arises in the context of a motion under either CR 55(c) or CR 60(b) to set aside an order or judgment of default. A court will set aside a default judgment entered against a party entitled to notice who did not receive it. Morin v. Burris, 160 Wn.2d 745, 749, 161 P.3d 956 (2007).

RCW 4.28.210 defines appearance, in pertinent part, as follows: "A defendant appears in an action when he or she answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his or her appearance."

In addition to formal appearance authorized under RCW 4.28.210, courts recognize various informal acts as sufficient to constitute an appearance. Indeed, "[a]ny action on the part of a defendant, except to object to the jurisdiction, which recognizes the case as in court, amounts to a general appearance." Dlouhy v. Dlouhy, 55 Wn.2d 718, 721, 349 P.2d 1073 (1960). Following RCW 4.28.210 and the common-law rule, courts have recognized that numerous acts by a defendant may constitute an appearance for purposes of CR 55, requiring the defendant to receive notice before an order of default is taken. Dlouhy, 55 Wn.2d at 724 (pro se appearance by defendant); Ellison v. Process Sys. Inc. Constr. Co., 112 Wn.App. 636, 643, 50 P.3d 658 (2002), review denied, 148 Wn.2d 1021 (2003) (employer's two letters in response to demand letter from former employee's attorney that showed intent to defend); Warnock v. Seattle Times Co., 48 Wn.2d 450, 452,294 P.2d 646 (1956) (demand for security for costs); Tiffin v. Hendricks, 44 Wn.2d 837, 843, 271 P.2d 683 (1954) (unfiled written notice of appearance to plaintiff's counsel); State v. Superior Court, 52 Wash. 13,16,100 P. 155 (1909) (service of unfiled written interrogatories); Douglas v. Badger State Mine, 41 Wash. 266,272-73, 83 P. 178 (1905), corrected, 43 Wash. 715 (1906) (motion to make a complaint more definite).

In Morin, the Washington Supreme Court held that prelitigation contacts alone are not sufficient to establish substantial compliance with the appearance requirements of CR 55(a)(3). 160 Wn.2d at 757. Instead, those who are properly served with a summons and complaint must in some way appear and acknowledge the jurisdiction of the court after they are served and litigation commences. Id. Otherwise "any party to a dispute [could] simply write a letter expressing intent to contest litigation, then ignore the summons and complaint or other formal process and wait for the notice of default judgment before deciding whether a defense is worth pursuing." Id.; see also Smith ex rel. Smith v. Arnold, 127Wn.App.98,104,110 P.3d 257 (2005) (advocating a narrow definition of "appearance" and ruling that an insurer's pre-suit phone calls and settlement offer did not constitute appearance).

The Washington Supreme Court has ruled that a compulsory appearance in court, such as in response to an order to show cause for contempt, is not an appearance that triggers the notice requirement of CR 55. Simon Piano Co. v. Fairfield, 103 Wash. 206, 209-10, 174 P. 457 (1918). However, in Dlouhy v. Dlouhy, the court held that a party's appearance at a show-cause hearing on a motion to convert a temporary restraining order to a temporary injunction constituted a general appearance that required notice of a motion for default. Dlouhy, 55 Wn.2d at 721.

The Washington Court of Appeals has suggested that a telephone call from a lawyer representing the defendant that acknowledges the case is in court and expresses an intent to defend could constitute an appearance. Seek Sys., Inc. v. Lincoln Moving I Global Van Lines, Inc., 63 Wn.App. 266, 818 P.2d 618 (1991). On the other hand, a memo written to the court by a pro se defendant stating why service of process was inadequate did not constitute an appearance. Leen v. Demopolis, 62 Wn.App. 473, 480-81, 815 P.2d 269 (1991), review denied, 118 Wn.2d 1022 (1992).

The withdrawal by an attorney subsequent to an appearance does not constitute a withdrawal by the client. Tiffin, 44 Wn.2d at 843. An appearance by an attorney constitutes an appearance of the defendant even if the attorney has lost contact with the defendant. In re C.R.B., 62 Wn.App. 608, 617-18, 814 P.2d 1197 (1991). CR 4.2 and CR 70.1 were added to the civil rules in 2002 to authorize an attorney to enter an appearance for a limited purpose. CR 4.2 sets forth the process by which an attorney may undertake limited representation, and CR 70.1(b) prescribes the consequences of a limited appearance. See Chapters 4.2 (Rule 4.2. Process—Limited Representation) and 70.1 (Rule 70.1. Appearance by Attorney) of this deskbook. Conceivably, an attorney could enter an appearance for the limited purpose of receiving notice of a motion for entry of default or a default judgment. Otherwise, only an attorney who has served a general notice of appearance is entitled to notice of a motion for default, as CR 4.2(b) expressly provides that an attorney who provides only limited representation of a person is not entitled to service of pleadings, papers, or other documents unrelated to the limited representation under CR 5(b).

Practice Tip: Always give notice of a motion for default whenever you are aware of an attorney's involvement in the matter on behalf of the opposing party, even if the attorney has not entered a formal notice of appearance. Failure to follow this precept brought strong condemnation from the court in Douglas, 41 Wash, at 272-73. The court stated that simple courtesy among attorneys demands nothing less.

(2)Court's discretion in ruling on motion for default

Even if a party complies with all of the requirements set forth above, the trial court has the discretion to grant or deny an order or judgment of default, and its ruling will not be disturbed absent abuse. See Garrett v. Nespelem Consol. Mines, Inc., 18 Wn.2d 340, 344, 139 P.2d 273 (1943). This discretion is to be "exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of substantial justice. In a plain case, this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates." Hull v. Vining, 17 Wash. 352, 359, 49 P. 537 (1897).

As a practical matter, there are many limitations on the court's ability to exercise discretion in ruling on a motion for default. It lacks discretion, of course, if it lacks authority to enter an order of default, such as when the order is sought without notice but the defendant has actually appeared, Tiffin, 44 Wn.2d at 847, or when the time for answering the pleading or complaint has not expired. Batchelor v. Palmer, 129 Wash. 150,155, 224 P. 685 (1924);Grahamv.Yakima Stock Brokers, 192 Wash. 121, 127, 72 P.2d 1041 (1937). It is an abuse of discretion to grant a default judgment when counsel for the defaulting party files pleadings while the motion is pending and appears in court for the motion. Paine-Gallucci, Inc. v. Anderson, 35 Wn.2d 312, 322, 212 P.2d 805 (1949). A court may not grant the motion when it "clearly appears to the court from the papers on file that the action was brought in an improper county." CR 55(a)(4). Finally, the court may not enter an order of default while a motion is pending to quash service or to otherwise challenge jurisdiction. Rauch v. Zander, 134 Wash. 40, 42, 234 P. 1039 (1925). Nonetheless, the court will likely enter default when presented with a motion and affidavit in accordance with CR 55(a) if the record shows proper notice, expiration of time to answer, and proper venue.

(3)Proof of service and service made by publication or mail

Entry of a default judgment requires proof of service.

(a)Proof of service

CR 55(b)(4) provides that a default judgment shall not be entered unless proof of service is on file with the court. This proof of service demonstrates that the court has personal jurisdiction over the defendant. See Lake v. Butcher, 37 Wn.App. 228, 232, 679 P.2d 409, review denied, 102 Wn.2d 1020 (1984).

Although CR 55(b)(4) appears to provide otherwise, a case under the former default statute held that proof of service need not be on file as long as the findings and judgment recite that there was due service of process upon the defaulting party. Hurby v. Kwapil, 156 Wash. 225, 227, 286 P. 664 (1930). This result is probably still valid, as long as service was actually accomplished. See Lake, 37 Wn.App. at 232 (noting "[i]t is the fact of service which confers jurisdiction, not the return" when there was no doubt that the defendant was personally served).

Special statutorily authorized forms of service, however, require close adherence to the precise statutory requirements. Schell v. Tri-State Irrig., 22 Wn.App. 788, 791-92, 591 P.2d 1222 (1979); Hatch v. Princess Louise Corp., 13 Wn.App. 378, 380, 534 P.2d 1036 (1975). In Hatch, the plaintiff brought suit against an out-of-state defendant and personally served the defendant out of state. 13 Wn.App. at 380. An affidavit required by RCW 4.28.185(4), the so-called "long-arm" statute, was not filed until after the entry of the default judgment. Id. The statute provides that no out-of-state service is valid until the filing of an affidavit that the defendant could not be served in state. RCW 4.28.185; Hatch, 13 Wn.App. at 380. The court in Hatch reversed the default judgment, stating that the default judgment was void because the trial court lacked jurisdiction at the time of its entry. The rationale for these holdings was that the long-arm...