Boss Construction, Inc. v. Hawk's Superior Rock, Inc. ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
November 21, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BOSS CONSTRUCTION, INC., a Washington No. 49273-3-II
corporation,
Respondent,
v.
HAWK’S SUPERIOR ROCK, INC., a UNPUBLISHED OPINION
Washington corporation,
Appellant.
LEE, J. — Hawk’s Superior Rock, Inc. (Hawk’s Superior) appeals the superior court’s
denial of Hawk’s Superior’s CR 60(b)(1) motion for relief from an order granting summary
judgment in favor of Boss Construction Inc. (Boss) in an underlying breach of contract claim.
Hawk’s Superior argues that (1) the superior court abused its discretion by denying Hawk’s
Superior’s CR 60(b)(1) motion for relief without addressing the four factor test articulated in White
v. Holm, 73 Wash. 2d 348, 438 P.2d 581 (1968); (2) the superior court erred in finding that Hawk’s
Superior’s counsel’s failure to update his address with the court did not constitute mistake,
inadvertence, or excusable neglect under CR 60(b)(1); and (3) the superior court abused its
discretion in denying Hawk’s Superior’s motion to reconsider again without addressing the White
test. We affirm.
No. 49273-3-II
FACTS
A. BREACH OF CONTRACT CLAIM
On August 11, 2014, Boss filed a complaint for damages against Hawk’s Superior. In its
complaint, Boss alleged that Hawk’s Superior had materially breached express and implied
warranties in the contract concerning the quality of its rock and gravel—the subject matter of the
contract. On September 29, Hawk’s Superior filed an answer denying these allegations and
asserting several affirmative defenses, including failure to mitigate damages.
Neither party took further action in the matter for the next year and a half, until Boss filed
a motion for summary judgment on February 8, 2016. In support of its motion, Boss filed a
declaration by its vice president stating that Hawk’s Superior offered to sell Boss the rock and
gravel it needed to complete a Washington State Department of Transportation (WSDOT)
construction project. In making such offer, Hawk’s Superior warranted that its rock and gravel
would meet the WSDOT’s mandated quality specifications. But the rock and gravel Hawk’s
Superior provided failed to meet WSDOT’s specifications, which forced Boss to purchase the
required rock and gravel from a different supplier at a substantially higher cost.
Between the time Boss filed its complaint and its motion for summary judgment, Hawk’s
Superior’s counsel, C. Craig Holley, moved office locations within his building. Holley notified
the state bar association, as well as his billing and insurance company of his change in office
location. He did not, however, notify Boss’s counsel or the court clerk of his new address.
Shortly after Holley moved his office location, he underwent surgery. At the time, Hawk’s
Superior was Holley’s only pending case. However, because no action had been taken on the case
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for a year and a half, Holley admitted that “it just wasn’t in [his] mind” to update his address with
the court and opposing counsel. Verbatim Report of Proceedings (VRP) (May 31, 2016) at 3.
Holley never received Boss’s motion for summary judgment. As a result, Holley never
filed a response to Boss’s motion for summary judgment on Hawk’s Superior’s behalf, and Holley
did not appear at the motion hearing scheduled for March 14, 2016.
At the summary judgment motion hearing, the superior court considered the summons and
complaint, the affidavit/declaration of service on Hawk’s Superior, the motion for default against
Hawk’s Superior, the notice of appearance of C. Craig Holley, Hawk’s Superior’s answer to the
complaint for damages, the notice of hearing on Boss’s motion for summary judgment, the
declaration of Chris Hart re motion for summary judgment, and Boss’s motion for summary
judgment. The superior court entered an order granting plaintiff’s motion for summary judgment
and awarded judgment against Hawk’s Superior in the principle sum of $241,708.33, judgment for
costs in the amount of $303.00, and a statutory attorney fee of $250.00.
B. MOTION SEEKING RELIEF FROM JUDGMENT
Holley learned of the superior court’s summary judgment order on April 18, after Hawk’s
Superior’s owners started receiving phone calls about a Grays Harbor County Superior Court
judgment against them. On April 29, Hawk’s Superior filed a motion seeking relief from judgment
under CR 60(b)(1). Holley filed a declaration in support of the motion, in which he stated that he
had updated his change of address with the Washington State Bar Association and applied for a
mail forwarding order with the post office. Holley also stated that he had never received any
document by mail from Boss’s counsel and that genuine issues of material fact remain in the
underlying contract claim.
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In its motion for relief, Hawk’s Superior argued that the circumstances surrounding
Holley’s mail and the fact he never received actual notice of Boss’s summary judgment motion
constituted “procedural irregularity.” Clerk’s Papers (CP) at 36. Boss filed a response on May
26, asserting that it had mailed the notice of hearing and motion for summary judgment to Holley
on February 4. The notice and motion for summary judgment were sent to Holley’s address on
file with the court on February 4.
At the hearing on the motion for relief, Holley informed the superior court that he did not
notify opposing counsel or the county court clerk of his change in address. As to which provision
of CR 60(b) relief was being sought, Holley stated, “Well particularly under mistake or
inadvertence, Your Honor.” VRP (May 31, 2016) at 4. When asked again, Holley replied, “Under
inadvertence or an irregularity.” VRP at (May 31, 2016) at 4. Holley conceded that failing to
notify opposing counsel or the court was his mistake, but it was due to the irregularity of his
medical treatment coupled with the case remaining dormant for approximately 15 months.
The superior court found that Holley had failed to comply with the court rules when he
failed to notify opposing counsel of his change in address. 1 The superior court also found such
failure was not inadvertent. The superior court further found that Hawk’s Superior’s motion for
relief did “not properly fall within any of the provisions of CR 60(b).” VRP (May 31, 2016) at 7.
Therefore, the superior court concluded that it could not grant the motion because Hawk’s Superior
did not “have a legal basis for it.” VRP (May 31, 2016) at 7.
1
The superior court did not identify the court rule(s) to which it was referring.
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C. MOTION FOR RECONSIDERATION
On June 9, Hawk’s Superior filed a motion for reconsideration under CR 59(a)(7) and
(a)(9), asserting that the superior court’s ruling denying its motion to vacate the summary judgment
order was legally erroneous and a denial of substantial justice. In support, Hawk’s Superior
provided the following documents: supplemental declaration of Holley, supplemental declaration
of the tenant who moved into Holley’s prior office, declaration of Hawk’s Superior’s owners, and
an attached exhibit e-mail from the WSDOT regarding the gravel tests. This evidence purportedly
showed that Hawk’s Superior’s rock and gravel complied with WSDOT specifications, that
Hawk’s Superior had never made any warranties to Boss, and that the tenant in Holley’s former
office could not recall ever receiving any first-class mail from Boss’s counsel. In its motion for
reconsideration, Hawk’s Superior argued that it had shown a “strong, if not conclusive, defense on
the merits,” and further asserted that Holley’s non-appearance at the summary judgment motion
hearing “was occasioned by mistake, inadvertence, surprise, or excusable neglect.” CP at 66 n.1,
67.
On June 21, the superior court sent a letter directing Boss to respond to Hawk’s Superior’s
assertion that substantial evidence supported a defense to Boss’s breach of contract claim. In this
letter, the superior court advised that when Boss filed its motion for summary judgment, it had
attached a declaration from its vice president, which referenced an “‘Exhibit A.’” CP at 79.
However, this exhibit was not actually attached to the supporting declaration. The superior court
directed Boss to attach the exhibit.
Boss filed the attached exhibit on July 8. The exhibit contained the 2010 price quote from
Hawk’s Superior to Boss, which contained the statement, “All Rock Meets DOT and Corp. of
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Engineer Specifications for Hardness & Wear.” CP at 84. Boss also filed an e-mail from WSDOT
from December 15, 2010, which notified Boss that Hawk’s Superior failed to meet its special
gravel borrow specifications.
On July 19, the superior court denied Hawk’s Superior’s motion for reconsideration.
Hawk’s Superior appeals both the order denying its CR 60(b)(1) motion for relief and the order
denying its motion for reconsideration.
ANALYSIS
A. MOTION FOR RELIEF FROM JUDGMENT
Hawk’s Superior argues that the superior court applied an incorrect legal standard in
evaluating its motion for relief from judgment because the superior court did not consider the four
factor test articulated by the Washington Supreme Court in White v. Holm, 73 Wash. 2d 348.
Specifically, Hawk’s Superior contends that the superior court’s failure to address the White test
on the record in itself constituted abuse of discretion. Additionally, Hawk’s Superior argues that
the superior court abused its discretion in finding that Hawk’s Superior’s counsel’s failure to
update his mailing address with the court was not inadvertence or excusable neglect under CR
60(b)(1). We disagree.
1. Standard of Review
We review a superior court’s ruling on a motion to vacate a judgment under CR 60(b) for
abuse of discretion. In re Parenting & Support of C.T., 193 Wash. App. 427, 434, 378 P.3d 183
(2016); Showalter v. Wild Oats, 124 Wash. App. 506, 510, 101 P.3d 867 (2004). Review of a CR
60(b) ruling is limited to the propriety of the denial of relief from judgment, not of the underlying
judgment the party sought to vacate. State v. Santos, 104 Wash. 2d 142, 145, 702 P.2d 1179 (1985).
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A court abuses its discretion if its decision to deny a 60(b) motion is manifestly
unreasonable or based on untenable grounds. Showalter, 124 Wash. App. at 510. Therefore, we will
only overturn the superior court’s decision if the decision “‘rests on facts unsupported in the record
or was reached by applying the wrong legal standard,’” or if the superior court applied the correct
legal standard, but “adopt[ed] a view ‘that no reasonable person would take.’” Mitchell v. Wash.
State Inst. of Pub. Policy, 153 Wash. App. 803, 822, 225 P.3d 280 (2009) (quoting State v. Rohrich,
149 Wash. 2d 647, 654, 71 P.3d 638 (2003)), review denied, 169 Wash. 2d 1012 (2010).
2. Addressing the White factors on the record
Hawk’s Superior argues that because it sought relief from judgment under CR 60(b)(1),2
the superior court was required to make findings of fact on the record on each of the four factors
articulated in White. Hawk’s Superior’s argument fails because no case requires the court to make
specific findings of fact on the record regarding each factor. White, 73 Wash. 2d at 352-53.
Hawk’s Superior relies on several cases involving denial of motions to vacate default
orders as support for the proposition that the superior court’s failure to address each White factor
on the record is itself an abuse of discretion. But Hawk’s Superior mischaracterizes the appellate
court rulings.
For example, in Gutz v. Johnson, 128 Wash. App. 901, 911, 117 P.3d 390 (2005), aff’d sub
nom., Morin v. Burris, 160 Wash. 2d 745, 161 P.3d 956 (2007), the court held that the trial court
abused its discretion in not reviewing whether the moving party satisfied the White test. The
2
Hawk’s Superior did not raise White in its original motion for relief. Rather, Hawk’s Superior
first raised the White test in its motion for reconsideration.
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court’s holding was not based on the fact that the trial court had failed to enter specific findings of
fact on each factor, but because the trial court only considered procedural arguments related to
notice of default judgments under CR 55 after the parties had extensively briefed the four elements
they needed to prove in a CR 60(b) hearing. Id. at 909.
Also, the court in Norton v. Brown, 99 Wash. App. 118, 992 P.2d 1019, 3 P.3d 207 (1999),
did not hold that consideration of the White factors must be “on the record,” as Hawk’s Superior
contends. Br. Appellant at 11. Rather, Norton held that the trial court abused its discretion in
refusing to vacate a default judgment where the defendant presented a prima facie defense and
showed that his failure to appear was due to mistake, inadvertence or excusable neglect. Norton,
99 Wash. App. at 124.
Hawk’s Superior fails to provide any legal authority aside from Norton discussed above to
support its argument that a superior court is required to make specific findings on the record on
each White factor. We decline to impose such a requirement. Thus, we hold that the superior court
did not err by not making specific findings on each White factor on the record.
3. Applying the White Test3
Under CR 60(b)(1), a superior court may relieve a party from a final judgment, order, or
proceeding for “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a
judgment or order.” The law favors resolution of cases on their merit. Stanley v. Cole, 157 Wn.
App. 873, 879, 239 P.3d 611 (2010). Because a default order deprives the parties of a trial on the
merits, a proceeding to set aside a default judgment is equitable in character and the relief afforded
3
As to the applicability of the White test, both parties assume the White test applies. For the
purposes of this appeal, we will assume it applies as well.
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“is to be administered in accordance with equitable principles and terms.” White, 73 Wash. 2d at
351. With this principle in mind, the Washington Supreme Court held that a four part test shall
guide trial courts when evaluating a motion to set aside a default judgment under CR 60(b)(1). Id.
at 352.
The White test requires that the moving party show:
(1) That there is substantial evidence extant to support, at least prima facie, a
defense to the claim asserted by the opposing party; (2) that 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) that the
moving party acted with due diligence after notice of entry of the default judgment;
and (4) that no substantial hardship will result to the opposing party.
Id. Though no single factor in this test is dispositive, the first two elements are considered to be
the primary factors and are given greater weight. Id. The test balances the merits of the underlying
claim resolved by default judgment with the party’s reasons for failing “to timely appear in the
action before the default.” Id. at 353. If the movant demonstrates a “strong or virtually conclusive
defense,” then the court will spend minimal time considering the circumstances that deprived the
parties from resolving the case on its merit. Id. at 352. But, if the movant only presents a prima
facie defense, then the court will more heavily weigh the movant’s failure to appear and defend
the action. Id. at 352-53.
a. Evidence of defense
As the moving party, Hawk’s Superior carried the burden of demonstrating to the trial court
that it satisfied the White test. Id. at 352 (holding that the primary and secondary factors of the
test “must be shown by the moving party.”). Thus, Hawk’s Superior must show that it had a
“strong or virtually conclusive defense” or that it can at least establish a prima facie defense. Id.
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Here, Hawk’s Superior failed to provide evidence of a strong or virtually conclusive
defense to the breach of contract claim. In its answer to Boss’s complaint, Hawk’s Superior denied
the accusations and asserted several affirmative defenses. And in its motion for relief, the only
evidence Hawk’s Superior provided addressing the underlying contract claim is found in a few
sentences of Holley’s supporting affidavit. There, Holley simply stated that Hawk’s Superior had
made no warranties or representations and that WSDOT had approved a substitute material from
Hawk’s Superior that Boss could use on the project. At best, this evidence would support a prima
facie defense to Boss’s breach of contract claim, not a strong or virtually conclusive defense.
Because only a prima facie defense can be shown, Hawk’s Superior’s failure to appear and defend
the summary judgment motion is weighed more heavily in balancing the White factors. White, 73
Wash. 2d at 352-53.
b. No excusable neglect
Hawk's Superior argues that Holley’s failure to respond to Boss’s summary judgment
motion was excusable neglect. 4 But where a party’s failure to respond to properly served court
4
Hawk’s Superior did not argue “excusable neglect” in its motion for relief or at the motion
hearing. Rather, in its motion, Hawk’s Superior argued that the order granting summary judgment
was obtained through “procedural irregularity.” CP at 37. At the motion hearing, counsel
specifically stated that its argument fell under the subsections of CR 60 (b)(1) of “mistake or
inadvertence.” VRP (May 31, 2016) at 4. Hawk’s Superior did, however, raise excusable neglect
in its motion for reconsideration. Hawk’s Superior argues that because it specifically sought relief
under CR 60(b)(1) in its motion for relief, White compels the superior court to make specific
findings of fact on excusable neglect, even if the parties did not argue that ground specifically.
In general, appellate courts will not consider arguments raised for the first time on appeal.
RAP 2.5(a); Unifund, CCR, LLC v. Elyse, 195 Wash. App. 110, 117-18, 382 P.3d 1090 (2016).
However, in bringing a motion for reconsideration under CR 59, a party may preserve the issue
for appeal if it is closely related to a previously asserted position and it does not depend on new
facts. River House Dev. Inc. v. Integrus Architecture, PS, 167 Wash. App. 221, 231, 272 P.3d 289
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documents is due to a breakdown of internal office procedures, such failure does not constitute
excusable neglect under CR 60(b)(1). Ha v. Signal Elec., Inc., 182 Wash. App. 436, 450, 332 P.3d
991 (2014), review denied, 182 Wash. 2d 1006 (2015); TMT Bear Creek Shopping Ctr., Inc. v.
PETCO Animal Supplies, Inc., 140 Wash. App. 191, 213, 165 P.3d 1271 (2007); Prest v. Am.
Bankers Life Assur. Co., 79 Wash. App. 93, 100, 900 P.2d 595 (1995), review denied, 129 Wash. 2d
1007 (1996). In TMT, Petco failed to appear or respond to TMT’s breach of contract summons
and complaint because the legal assistant responsible for entering the deadline into the calendaring
system forgot to do so before leaving on an extended vacation. TMT, 140 Wash. App. at 197-98.
The court rejected Petco’s argument that this constituted excusable neglect under CR 60(b)(1). Id.
at 213. Similarly, in Prest, the court held that the general counsel’s failure to respond to a
summons and complaint because the documents had been mislaid in the office while the general
counsel was out of town was not excusable neglect. Prest, 79 Wash. App. at 100.
Hawk’s Superior also argues that Holley’s foresight in updating his address with the state
bar association and postal service demonstrate excusable neglect in failing to notify the superior
court of his address change. But Holley’s efforts actually support the opposite conclusion. Holley
made the effort to ensure certain entities were aware of his change in address. Yet, he failed to
exercise the same care in the one case he had pending. Though no action had been taken in the
case for a year and a half, Holley knew the case was still pending and his failure to update his
address with the court clerk or opposing counsel represents inexcusable neglect. As in TMT and
(2012). Because Boss addresses Hawk’s Superior’s excusable neglect arguments in its responsive
brief, we address the issue of excusable neglect.
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Prest, such breakdown was due to his own internal case management. The superior court did not
abuse its discretion in finding no excusable neglect under CR 60(b)(1).
c. Mistake
Hawk’s Superior next argues that the trial court erred in ruling that Holley’s failure to
receive actual notice of Boss’s summary judgment motion was not a mistake justifying relief under
CR 60(b)(1). We find this argument unpersuasive.
Courts have addressed mistake under CR 60(b)(1) in the context of insurance coverage
cases. Norton, 99 Wash. App. at 120; Akhavuz v. Moody, 178 Wash. App. 526, 535, 315 P.3d 572
(2013). In Norton, the defendant in an auto accident claim notified his insurance company that he
was involved in a motor vehicle accident. Norton, 99 Wash. App. at 120. His insurance company
began settlement negotiations with plaintiff’s counsel regarding plaintiff’s claim for personal
injuries resulting from the accident. Id. The parties were unable to reach an agreement and
plaintiff’s counsel served the defendant with a summons and complaint. Id. The defendant failed
to forward the documents to his insurance adjuster because he thought his insurer was already
handling the claim. Id. The court held that this misunderstanding between the defendant and his
insurer constituted a mistake justifying relief under CR 60(b)(1) because it stemmed from a
genuine misunderstanding as to who was responsible for answering the summons and complaint.
Id. at 124.
Comparatively, in Akhavuz, the court rejected the defendant’s claim that its insurer’s failure
to answer plaintiff’s complaint was a mistake under CR 60(b)(1). Akhavuz, 178 Wash. App. at 535-
36. There, the defendant received plaintiff’s summons and complaint and forwarded it to his
insurance adjuster. Id. at 530. The insurance adjuster never responded because he assumed the
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parties were in the process of settlement negotiations. Id. at 536. The court held that this failure
was not a mistake under CR 60(b)(1) because there was no misunderstanding between the
defendant and his insurance company as to who was responsible for defending the plaintiff’s
claims. Id. at 535-36.
Thus, the kind of “mistake” justifying relief under CR 60(b)(1) occurs when there is a
genuine misunderstanding as to who is responsible for defending a case. Id. at 537; Norton, 99
Wash. App. at 124. This aligns with the ordinary meaning of “mistake,” which is “to take in a wrong
sense” or “to be wrong in the estimation or understanding of.” WEBSTER’S THIRD NEW INT’L
DICTIONARY 1446 (2002).5
As in Akhavuz, Holley’s failure to notify opposing counsel or the court of his change in
address did not arise from a misunderstanding by Holley. Therefore, it did not constitute a mistake
under CR 60(b)(1).
d. Inadvertence
Hawk’s Superior argues that Holley’s actions constituted “inadvertence.” Reply Br. of
Appellant at 4. Because CR 60(b)(1) does not define “inadvertence,” we give the term its “plain
and ordinary meaning ascertained from a standard dictionary.” In re Marriage of Worthley, 198
Wash. App. 419, 426, 393 P.3d 859 (2017) (quoting State v. Watson, 146 Wash. 2d 947, 954, 51 P.3d
66 (2002)).
5
CR 60(b)(1) does not define “mistake.” If a court rule does not define a term, we determine the
plain and ordinary meaning of the term from a standard dictionary. State v. Mankin, 158 Wash. App.
111, 122, 241 P.3d 421 (2010), review denied, 171 Wash. 2d 1003 (2011).
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The ordinary meaning of “inadvertence” is “lack of care or attentiveness.” WEBSTER’S,
supra, at 1139 (2002). Here, Holley’s failure to update his address was not inadvertent. Holley
updated his address with the bar association and post office. Thus, Holley was aware of the need
to update his address. As a result, the superior court did not abuse its discretion in finding that
Holley’s failure was not inadvertent under CR 60(b)(1).
Hawk’s Superior fails to show that substantial evidence supports a strong defense to Boss’s
claim or that Hawk’s Superior’s failure to appear in the summary judgment proceedings was due
to mistake, inadvertence, or excusable neglect. Thus, Hawk’s Superior fails to show that it is
entitled to relief under the White test.6 Accordingly, the superior court did not abuse its discretion
in denying Hawk’s Superior’s CR 60(b)(1) motion for relief from judgment.
B. MOTION TO RECONSIDER
Hawk’s Superior contends that the superior court abused its discretion in failing to address
the White factors on review of its motion for reconsideration. We disagree.
Under CR 59(a)(7), upon motion of an aggrieved party, the superior court may vacate a
verdict and grant a new trial where there is “no evidence or reasonable inference from the evidence
to justify the verdict or the decisions, or that [the decision] is contrary to law.” Further, under CR
59(a)(9), the court may vacate when “substantial justice has not been done.”
6
The parties do not dispute that Hawk’s Superior met the secondary factors of the White test.
However, given that Hawk’s Superior fails to demonstrate the primary factors of the White test,
which weigh more heavily, its due diligence in seeking review and Boss’s threat of insubstantial
hardship do not tilt in favor of Hawk’s Superior. White, 73 Wash. 2d at 352 (“The first two are the
major elements to be demonstrated by the moving party, and they, coupled with the secondary
factors, vary in dispositive significance as the circumstances of the particular case dictate.”).
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We review a superior court’s denial of a motion for reconsideration for an abuse of
discretion. Christian v. Tohmeh, 191 Wash. App. 709, 728, 366 P.3d 16 (2015). A court abuses its
discretion when its decision is manifestly unreasonable or based on untenable grounds. Rosander
v. Nightrunners Transp., Ltd., 147 Wash. App. 392, 403, 196 P.3d 711 (2008). Though the court’s
discretion may result in a decision upon which reasonable minds may differ, it must be upheld if
it is “within the bounds of reasonableness.” In re Estate of Stevens, 94 Wash. App. 20, 30, 971 P.2d
58 (1999) (quoting Lindgren v. Lindgren, 58 Wash. App. 588, 595, 794 P.2d 526 (1990), review
denied, 116 Wash. 2d 1009 (1991)).
CR 59 does not prohibit a party from submitting new or additional evidence on
reconsideration. Martini v. Post, 178 Wash. App. 153, 162, 313 P.3d 473 (2013). However, the trial
court has discretion whether or not to consider additional evidence presented. Id. If the trial court
exercises this discretion and considers the additional evidence, then it must view the evidence in
the same way it would have in the underlying proceeding. Id. at 166.
In Martini, Martini brought a negligence claim against his landlord after his wife died in
an apartment fire. Id. at 158. The superior court granted the landlord’s summary judgment motion,
finding that Martini failed to prove the element of proximate cause. Id. at 159. In his motion for
reconsideration, Martini provided the court with additional evidence on causation. Id. at 166.
Although the superior court considered the additional evidence, it declined to overturn its prior
summary judgment ruling. Id. at 160. The court reversed, holding that because the superior court
considered the additional evidence, it was required to view the evidence in the light most favorable
to Martini, as this would be the standard in evaluating the underlying motion for summary
judgment. Id. at 166.
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Here, Hawk’s Superior submitted additional evidence to the superior court in its motion
for reconsideration. The superior court was not required under CR 59 to consider this evidence.
However, the record shows that the superior court did consider Hawk’s Superior’s additional
evidence because upon receiving Hawk’s Superior’s motion, the court required Boss to provide
the court with further evidence to refute Hawk’s Superior’s defense. Once the superior court
decided to weigh the new evidence, it was required to consider the evidence in the same way it
would have in the underlying CR 60(b) motion. Id. Therefore, because the White factors controlled
in the underlying CR 60(b)(1) motion hearing, the superior court was required to consider the new
evidence in light of the White factors in ruling on Hawk’s Superior’s motion for consideration.
In its motion for reconsideration, Hawk’s Superior presented stronger evidence in defense
of Boss’s breach of contract claim. Specifically, Hawk’s Superior provided correspondence in
which WSDOT approved Hawk’s Superior’s rock and gravel for use by Boss in the construction
project. However, Boss provided a subsequent WSDOT e-mail correspondence in which WSDOT
stated that Hawk’s Superior’s rock and gravel failed to meet its specifications upon further testing.
At best, Hawk’s Superior’s additional evidence provided a prima facie defense. White, 73 Wash. 2d
at 352-53.
And although Hawk’s Superior provided the court with stronger evidence in support of its
motion for reconsideration, Hawk’s Superior still did not present further evidence that Holley’s
failure to update his address was due to mistake, excusable neglect, inadvertence, or irregularity.
In its motion for reconsideration, Hawk’s Superior presented additional evidence regarding the
mail forwarding process and the new tenant’s process of providing Holley with any first class mail
it received. However, this evidence does not support a finding that Holley’s failure to update the
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court clerk or opposing counsel of his address was a mistake, inadvertence, excusable neglect or
due to irregularity in the court proceedings. Thus, we hold that the superior court did not abuse its
discretion in denying Hawk’s Superior’s motion for reconsideration.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J.
We concur:
Johanson, P.J.
Melnick, J.
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