§60.6 Analysis

• Jurisdiction: Washington

§60.6ANALYSIS

The following analysis addresses the grounds upon and process by which a judgment or order may be vacated under CR 60.

(1)General standards

CR 60 is the exclusive basis for modifying or vacating final judgments in the same action. State v. Scott, 20 Wn.App. 382, 387, 580 P.2d 1099 (1978), aff'd, 92 Wn.2d 209, 595 P.2d 549 (1979). The decision to vacate an order or judgment is usually left to the discretion of the trial judge. Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978). The trial court's decision will not be disturbed absent a manifest abuse of discretion (i.e., no reasonable person would adopt the trial court's position). In re Marriage of Burkey, 36 Wn.App. 487, 489, 675 P.2d 619 (1984) (citing Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 584, 599P.2d1289 (1979)); Morgan v. Burks, 17 Wn.App. 193, 197-98, 563P.2d1260 (1977). Appellate courts will not consider any grounds for vacation other than those raised before the trial court. In re Marriage ofWherley, 34 Wn.App. 344, 348, 661P.2d155, review denied, 100 Wn.2d 1013 (1983).

(2)Clerical mistakes

Clerical mistakes maybe corrected through a motion by a party or by the court on its own motion. A clerical mistake is mechanical in nature, is usually apparent in the record, and does not involve substantive legal decisions or judgments. In re Marriage of King, 66 Wn.App. 134, 138, 831P.2d1094 (1992).

Judicial errors cannot be corrected under CR 60. Ajudicial error can only be reviewed through a CR 59 motion or through timely appeal. Presidential Estates Apt. Assocs. v. Barrett, 129 Wn.2d 320, 326, 917P.2d100 (1996).

The test for distinguishing between a "judicial" error and a "clerical" mistake is whether the judgment embodies the trial court's intention. Marchel v. Bunger, 13 Wn.App. 81, 84, 533P.2d406, review denied, 185 Wn.2d 1012 (1975); In re Marriage ofGetz, 57 Wn.App. 602, 789P.2d331 (1990); see also In re Kramer's Estate, 49 Wn.2d 829, 307P.2d274 (1957) (intentional acts of the court are not subject to correction under CR 60(a)); W. Cmty. Bank v. Grice, 55 Wn.App. 290, 777P.2d39 (1989) (CR 60(a) may not be used to vacate an allegedly erroneously filed satisfaction of judgment). CR 60(a) applies to mistakes such as typing the incorrect date of the commission of a crime on the judgment form. State v. Casarez, 64 Wn.App. 910, 826P.2d1102 (1992), aff'd sub nom. State v. Garza-Villarreal, 123 Wn.2d 42, 864P.2d1378 (1993).

A clerical mistake is a "mistake or omission mechanical in nature which is apparent on the record and which does not involve a legal decision or judgment by an attorney." Marriage of King, 66 Wn.App. at 138. An arbitrator's mistake in calculating health insurance premiums for child support thus is "clerical" and not substantive, and the trial court can correct the error at any time. Id. Likewise, a trial court's inadvertence in failing to memorialize part of its decision is a clerical error correctable under CR 60(a). In re Marriage of Stern, 68 Wn.App. 922, 846 P.2d 1387 (1993); see also Shaw v. City ofDes Moines, 109 Wn.App. 896, 37 P.3d 1255 (2002) (computer-generated case scheduling system did not properly address plaintiff's petition filed under Land Use Petition Act, and dismissal order should have been vacated). Under CR 60(a), a trial court may amend its judgment, without permission of the appellate court, to designate documents that it considered in entering summary judgment if the ruling does not change the decision that has been appealed. Marquis v. City of Spokane, 76 Wn.App. 853, 861-62, 888P.2d753 (1995), aff'd, 130 Wn.2d 97, 922P.2d43 (1996).

An attorney's mistaken signature on an order stipulating to "form" and "content" is not a basis for vacation under CR 60(a). Estate of Harford, 86 Wn.App. 259,264-65,936 p.2d48 (1997), review denied, 135 Wn.2d 1011 (1998). Failure to include pension benefits in a dissolution decree also does not qualify as a clerical error under CR 60(a), and a trial court lacks authority under this rule to disturb a decree on that basis. Clingan v. Dep't of Labor & Indus., 71 Wn.App. 590, 860P.2d417 (1993).

(3) Grounds for vacation of judgment

The majority of court decisions addressing the application of CR 60 involve CR 60(b), which identifies 11 reasons for relief from orders or judgments. The trial court has liberal discretion to award terms to either a moving or opposing party for the vacation of a judgment or order. Hous. Auth. of Grant Cnty. v. Newbigging, 105 Wn.App. 178, 192, 19 P.3d 1081 (2001) (affirming an award of terms against the plaintiff for its unreasonable opposition to defendant's motion to set aside default).

(a) Mistakes, irregularities, and excusable neglect

CR 60(b)(1) provides for relief when an order or judgment has resulted from a mistake, irregularity in the proceeding, or the excusable neglect of a party or attorney. This subsection is commonly relied upon by parties trying to vacate a default judgment. A request to vacate a default judgment is equitable in character, and the relief sought or afforded is to be administered in accordance with equitable principles and terms. Roth v. Nash, 19 Wn.2d 731, 144P.2d271 (1943). A court has the discretion to award terms to either a defendant or plaintiff when considering a motion to vacate a default judgment. Newbigging, 105 Wn.App. at 192.

Washington courts generally disfavor default judgments. They prefer to give parties their day in court and resolve disputes on their merits. Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007). The courts, however, also recognize the need for the judicial system to operate in an orderly fashion and for litigants to promptly respond to lawsuits and comply with court rules. Little v. King, 160 Wn.2d 696, 703, 161 P.3d 345 (2007).

An appellate court will require a stronger showing of abuse of discretion in reviewing a decision to vacate a default judgment than would otherwise be required for reversal of the trial court decision. Griggs, 92 Wn.2d at 582; Lenzi v. Redland Ins. Co., 140 Wn.2d 267, 278, 996 P.2d 603 (2000). An appellate court is less likely to find an abuse of discretion when the trial court has set the default judgment aside than when it has refused to vacate.

In White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968), the Washington Supreme Court set out four factors the moving party must demonstrate to have a default judgment vacated: (1) there is substantial evidence to support, at least prima facie, a defense to the claim asserted by the opposing party; (2) the moving party's failure to timely appear in the action and answer the opponent's claim was occasioned by mistake, inadvertence, surprise, or excusable neglect; (3) the moving party acted with due diligence after notice of entry of the default judgment; and (4) no substantial hardship will result to the opposing party.

The first two factors are the principal considerations, while the third and fourth factors are secondary. White, 73 Wn.2d at 352. The importance of each factor varies, depending on the particular facts of a case. A court should first determine whether a defendant has demonstrated the existence of a strong or virtually conclusive defense or, alternatively, the existence of a prima facie defense. TMT Bear Creek Shopping Ctr, Inc. v. PETCO Animal Supplies, Inc., 140 Wn.App. 191, 202, 165P.3d1271 (2007). If there is a strong or conclusive defense, that alone maybe dispositive and warrant vacating the default judgment. White, 73 Wn.2d at 352. On the other hand, if the moving party can only show a prima facie defense, the court should give the other factors greater consideration.

When a defendant promptly moves to vacate and has a strong case for excusable neglect, the strength of the defense is less important. Id. at 353. Moreover, a default judgment should be vacated if the plaintiff has acted in such a way that enforcing the judgment would be inequitable. Morin, 160 Wn.2d at 755. The overriding concern is to ensure that justice is done. Griggs, 92 Wn.2d at 582.

Practice Tip: When moving to vacate a default judgment, address all four of the White factors even if you believe that you have a strong or conclusive defense. Because the analysis is guided by equitable principles, the courts tend to blend the factors together. See, e.g., Sacotte Constr., Inc. v. Nat'l Fire & Marine Ins. Co., 143 Wn.App. 410, 177 P.3d 1147 (2008), review denied sub nom. Heights at Issaquah Ridge Owners Ass'n v. Scottsdale Ins. Co., 164 Wn.2d 1026 (2008). And a trial court may disagree with your assessment of the strength of your defense, in which case either inexcusable neglect or substantial prejudice to the opposing party could prove fatal to your motion.

The two inquiries—strong or conclusive defense versus prima facie defense—serve different purposes and, as a result, require different levels of scrutiny by the court. A court will vacate a default judgment if there is a strong or conclusive defense, as long as the defendant timely moves to vacate, because it would not serve justice to allow a meritless claim to stand. Thus, in making this inquiry, a court is exercising its equitable authority and has broad discretion to evaluate and weigh all of the evidence presented by the moving and nonmoving parties.

On the other hand, the purpose of requiring a party to demonstrate a prima facie defense is to avoid a useless trial. There would be no point in vacating a default judgment in an action in which the plaintiff obviously would be entitled to prevail on the merits. If a party presents only a prima facie defense, then more consideration is given to the other factors. White, 73 Wn.2d at 353.

In determining whether a party has a strong or conclusive defense, the court may consider and weigh the credibility of all of the evidence presented. But in determining whether a party has presented a primafacie defense, the trial court must draw...