Summit Homeowners Association, Resp v. Glenn R. Oakes And Cindy R. Oakes, App ( 2017 )

L ED
COURT OF APPEALS DIV
STATE OF WASHMTON
2017 OCT -2 t.11I: 32
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE SUMMIT HOMEOWNERS )
ASSOCIATION, a Washington state ) No. 75906-0-1
nonprofit corporation, )
) DIVISION ONE
Respondent, )
) UNPUBLISHED OPINION
v. )
)
GLENN and CINDY OAKES, a )
Washington state marital community, )
)
Appellants. ) FILED: October 2, 2017
)
APPELWICK, J. — The Oakes appeal the trial court's refusal to vacate the
default judgment. They argue that the trial court erred in finding that they were
properly served the summons and complaint, conferring personal jurisdiction.
They also argue that the trial court abused its discretion in declining to vacate the
default judgment under three meritorious defenses. We affirm.
FACTS
On September 4, 2015, The Summit Homeowners Association (Summit)
brought action against Glenn and Cindy Oakes,1 a married couple residing in the
Summit community. It alleged that the Oakes were in violation of Summit's home
and lot maintenance requirements and view protection requirements. In its
1 For clarity, we will refer to a specific individual by his or her first name. No
disrespect is intended.
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complaint, Summit asked the court for declaratory relief, injunctive relief, and
damages for assessments and attorney fees.
Dave Stout, a process server, went to the Oakes's home on September 7,
2015 to serve the Oakes with the summons and complaint. Stout testified at the
motion to vacate hearing that he spoke with Glenn in the Oakes' driveway.2 Stout
stated that he placed the summons and complaint on the hood of the Oakes's
vehicle after Glenn refused to accept them.3 The Oakes failed to appear, answer,
or defend against the complaint.
On October 7, 2015, a default judgment was entered against the Oakes in
the amount of $24,967.24. The Oakes filed a motion to vacate the default
judgment on July 22, 2016. On September 9, 2016, the trial court denied the
motion to vacate, finding that service was proper, and that the Oakes did not have
meritorious defenses to overcome the default judgment.
2 Stout states, "And then later on in that brief conversation, he ascended
[sic] that he was Mr. Oakes. And I reached out, because we were close enough
to where I could hand him the documents, and he refused to take them.... And
then I said to him, 'Well, I believe that you are Mr. Glenn Oakes, and I'm serving
you these legal documents.'
3 Stout stated,
And so we—again, I tried to reach out to him and hand them to him,
but he wouldn't take them. So I laid them on the—I think earlier in
my declaration, I said on the back end, but I think it was the front. I
can't remember which way the vehicle was parked, nose towards the
cul-de-sac or nose toward the front. But obviously, I laid the
documents on the hood—I would say the hood on the minivan.
And at that time, he was still there, close by, and I turned
around and left.
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DISCUSSION
The Oakes argue that the trial court erred in declining to vacate the default
judgment. First, they argue that the trial court did not have personal jurisdiction to
find the default judgment due to improper service of the complaint and summons.
Second, they argue that Summit violated RCW 64.38.035(4), because it did not
obtain voter approval from the homeowners before filing suit. Third, they argue
that they were not in violation of the homeowners' association act4 or the
covenants, conditions, and restrictions ("CC&Rs") of the Summit Homeowners
Association. Fourth, they argue that Summit did not exhaust administrative
remedies before it filed suit, violating RCW 64.38.020(11) and Summit's governing
documents. Fifth, they argue that the trial court did not make a findings of fact and
conclusions of law, therefore this court must reverse or remand.
The Oakes ask this court to apply a de novo standard of review to the trial
court's decision not to vacate default judgment for improper service. We generally
review de novo the trial court's decision not to vacate a final order for lack of
jurisdiction. Delex Inc. v. Sukhoi Civil Aircraft Co., 193 Wn. App. 464, 469, 372
P.3d 797), review denied 186 Wn.2d 1027, 385 P.3d 114(2016). However, where
the trial court's finding offacts involved weighing competing documentary evidence
and resolving credibility issues, the substantial evidence standard is appropriate.
Dolan v. King County, 172 Wn.2d 299, 310, 258 P.3d 20 (2011).
Here, the trial court weighed documentary evidence and determined
credibility of witnesses. Further, when an appellant challenges conclusions of law
4 Ch. 64.38 RCW.
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not based on the law itself, but rather claiming that the findings of fact do not
support the court's conclusions, appellate review is limited to determining whether
the trial court's findings are supported by substantial evidence and, if so, whether
those findings support the conclusions of law. Nguyen v. City of Seattle, 179 Wn.
App. 155, 163-64, 317 P.3d 518 (2014). The Oakes challenge the trial court's
finding that Stout personally served the Oakes. Therefore, we look to see whether
there is substantial evidence to support the trial court's finding that Stout achieved
personal service.
The Oakes also assert that the trial court should have vacated the judgment
for several meritorious defenses. Under CR 60(b), a party may motion the court
to relieve that party of a final judgment for a number of defenses. A motion to
vacate a default judgment under CR 60(b) is reviewed for abuse of discretion.
United Pac. Ins. Co. v. Discount Co., 15 Wn. App. 559, 562, 550 P.2d 699 (1976).
I. Service of Process
The Oakes argue that they were not properly served with the summons and
complaint under RCW 4.28.080(16) or RCW 4.28.080(17). For personal service,
the summons shall be served by delivering a copy thereof to the defendant
personally, or by leaving a copy of the summons at the house of his or her usual
abode with some person of suitable age and discretion then resident therein. RCW
4.28.080(16). After hearing the testimony of Glenn and Stout, the trial court found
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that the Oakes were personally served with a copy of the summons and complaint.
The court concluded,
And I listened to the testimony of Mr. Oakes and I listened to the
testimony of Mr. Stout, and it is my finding from listening to the
testimony and the credibility—and kind of the context—and I don't
mean credibility, Mr. and Mrs. Oakes, in the sense that I think you're
lying, but Mr. Stout—everybody agrees he came to your house on
that morning, he got out of the car. There was a discussion about
were you Mr. Oakes, and who was he, and what was he doing there.
He says he said he was there to serve you papers and tried to give
them to you. . .. [I]n listening to all the testimony it's my finding that
in fact that happened, that he identified himself as a process server,
said he had legal papers for you, tried to give you the legal papers,
which—and you left to go inside, and that he left the legal papers
outside. . . .
So I find, weighing the credibility of the witnesses, that in fact
you were served with a copy of the summons and complaint.
The essential issue on appeal is whether there was substantial
evidence before the trial court to support its conclusion that service of
process was valid under RCW 4.28.080(16). There is evidence in the
record that process server, Stout, took the summons and complaint to the
Oakes's home on September 7, 2015, and spoke with a man whom he
identified as Glenn. Further, there is evidence in the record that the process
server laid the documents on Oakes's vehicle after Glenn refused to take
them. Stout testified that Glenn did not touch the papers, but he explained,
"I tried to reach out to him and hand them to him, but he wouldn't take
them. . . I laid the documents on the hood-1 would say the hood on the
minivan." Substantial evidence supports the trial court's finding that Stout
attempted to hand the summons and complaint to Glenn. Substantial
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evidence supports the trial court's finding that after Glenn refused to accept
the documents, Stout placed them on the Oakes' vehicle.
Under RCW 4.28.080, a process server accomplishes personal
service if there is a clear attempt to yield possession and control of the
documents to the person being served. United, 15 Wn. App. at 561-62. In
United, the court held that defendant was served properly after the process
server attempted to hand the documents to the defendant, but she evaded
accepting them by slamming the door. 15 Wn. App. at 562. The Oakes
argue that this case is similar to the situation in Weiss v. Glemp, 127 Wn.2d
726,903 P.2d 455(1995). There, the court found that there was insufficient
service of process when the process server left the summons outside on
the windowsill of where the defendant was located. Weiss, 127 Wn.2d at
732. The court noted in Weiss that the defendant had not attempted to
evade process merely because he did not come to the door when the
process server knocked. Id. at 734.
This case is more similar to United than Weiss, because the process
server attempted to yield possession and control of the documents
personally to Glenn, but Glenn affirmatively refused. Service of process
was sufficient under RCW 4.28.80(16). The trial court properly denied the
motion to vacate on the grounds of sufficient service of process.
II. Meritorious Defenses under CR 60
The Oakes also raise three defenses to the default judgment. First,
they argue that the default judgment should be set aside because Summit
No. 75906-0-1/7
did not get the homeowners approval before filing suit. Second, they argue
that they did not violate the homeowners' association act or the CC&Rs.
Third, they argue Summit failed to exhaust administrative remedies prior to
litigation.
A trial court may vacate a default judgment for a number of reasons,
such as mistakes, inadvertence, excusable neglect, newly discovered
evidence, and fraud. CR 60(b). Whether to vacate a judgment on grounds
set forth in CR 60(b) lies within the discretion of the trial court. United, 15
Wn. App. at 562. When considering whether to vacate a default judgment,
courts consider whether the default party has shown (1) that there is
substantial evidence to support at least a prima facie defense to the claim
asserted, (2) that its failure to appear was occasioned by mistake,
inadvertence, surprise, excusable neglect, or that there was irregularity in
obtaining the judgment, (3) that the party acted with due diligence after
receiving notice that the default judgment was entered, and (4) whether
substantial hardship would result to the plaintiff if the judgment were set
aside. Sacotte Const., Inc. v. Nat'l Fire & Marine Ins. Co., 143 Wn. App.
410, 418, 177 P.3d 1147 (2008).
Here, the trial court declined to vacate the default judgment after
finding that the Oakes did not act with due diligence to set aside the default
order. Summit served the Oakes with the summons and complaint on
September 7, 2015. The court entered the default judgment on October 7,
2015. The Oakes filed the motion to vacate the default judgment on July
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22, 2016. In determining a motion's timeliness a court considers whether
the moving party has good reasons for failing to take appropriate action
sooner. See Luckett v. Boeing Co., 98 Wn. App. 307, 313, 989 P.2d 1144(1999). This court has found that a trial court does not abuse its discretion
in denying a motion to vacate when the moving party fails to put forth any
good reason for delaying to bring a motion to vacate. See id. We do not
find an abuse of trial court discretion.
III. Record of Trial Court's Findings
The Oakes assert that the trial court failed to make a findings of fact
and conclusions of law, properly preserving the record for the appellate
court. CR 60 is silent about whether a court is required to make written
findings of fact and conclusions of law when ruling on a motion to vacate a
final judgment. The Oakes do not find fault in the trial court's lack of written
findings, but instead assert that it erred by failing to make any findings on
the record. But, the record contains the oral findings the trial court made at
the hearing on the motion to vacate the default judgment. We find no error.
IV. Attorney Fees
Summit requests attorney fees that have not yet been awarded as
part of the default judgment. Summit asserts that it is entitled to attorney
fees per the CC&Rs.5 We will award attorney fees to the prevailing party
5 The document states, "In any judicial action to enforce compliance with
the Governing Documents or a Board Decision, the prevailing party, including the
Association, shall be entitled to recover from the non-prevailing party, whether or
not the action proceeds to judgment, its costs and a reasonable sum for attorneys'
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on the basis of a private agreement, a statute, or a recognized ground of
equity. Buck Mountain Owner's Ass'n v. Prestwich, 174 Wn. App. 702, 731,
308 P.3d 644 (2013). Summit is entitled to attorney fees incurred in this
appeal based on the CC&Rs, subject to its compliance with RAP 14.4.
We affirm.
WE CONCUR:
fees incurred in connection with the action, in addition to taxable costs permitted
by law."
9