Mark Hopkins And Georgia Hopkins, Res. V. Kirk And Jennifer Banks, Apps.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MARK HOPKINS and GEORGIA
HOPKINS, husband and wife,
Respondents,
V.
KIRK and JENNIFER BANKS, as
assignees for MRS. BILLIE E.
GETSCHMANN SKYLES,
Appellants.
No. 77214-7-I
DIVISION ONE
UNPUBLISHED OPINION
FILED: January 22, 2019
LEACH, J. — Kirk and Jennifer Banks,1 putative assignees of Billie
Getschmann Skyles, appeal the denial of their motion to vacate a default
judgment in favor of Mark and Georgia Hopkins.2 Banks contend that Hopkins
did not file adequate proof that they served Skyles with their motion for default
judgment before the court entered judgment. They also contend that Hopkins's
counsel withheld from the court facts material to the default judgment.
Because Hopkins corrected their proof of service error and Bank's fail to
show that the trial court abused its discretion when it denied the motion to
vacate, we affirm.-
1 We refer to Kirk and Jennifer Banks collectively as Banks.
2 We refer to Mark and Georgia Hopkins collectively as Hopkins.

No. 77214-7-1 /2
BACKGROUND
Billie Getschmann Skyles owned 20 acres of land near Gold Bar,
Washington. Jennifer and Kirk Banks lived on the property and helped Skyles.
In February 2014, Skyles signed a purchase and sale agreement (PSA) to sell
half of the property to her neighbors, Mark and Georgia Hopkins. The PSA
included an addendum providing for the transfer of .75 acres of the parcel after
the parties completed a boundary line adjustment (BLA). Sale of 9.25 acres
closed on May 8, 2014. After a surveyor completed the BLA paperwork in June
2014, Skyles refused to sign it.
Hopkins filed a lawsuit to enforce the transfer of the .75 acres in
November 2014. They served Skyles on December 18, 2014. Skyles filed a pro
se notice of appearance on January 6, 2015. On January 13, 2015, Hopkins
served Skyles by mail with notice of a January 27, 2015, default judgment
hearing date. Legal assistant Tracy Swanlund signed a certificate of mailing
affixed to the calendar note to show service. Skyles did not appear at the
hearing, and the superior court entered a default judgment in favor of Hopkins.
In June 2015 the Snohomish County Auditor recorded a quitclaim deed
Skyles apparently signed in October 2014 transferring the property to Banks. In
July 2015, Skyles filed a motion to vacate the default judgment. She claimed that
Hopkins did not properly serve her with the summons or complaint. On appeal,
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No. 77214-7-1 / 3
we concluded that the service of summons and complaint was proper and
affirmed the default judgment.3
Skyles purportedly assigned her interest in the PSA and this lawsuit to
Banks on August 20, 2015.4 She died on September 26,2015.
On December 30, 2015, Banks filed a second motion to vacate. They
claimed that Hopkins's counsel withheld material facts at the default judgment
hearing and failed to properly serve her with their motion for default judgment.
The superior court declined to consider the motion because Skyles had died and
no party had been substituted for her. This court substituted Banks for Skyles in
the first appeal but declined to review issues relating to the second motion
because the trial court had never considered the merits of the motion.6
After our decision in the first appeal, Banks filed a third motion to vacate in
May 2017.6 They asserted that Hopkins failed to file proper proof of service of
the default judgment motion on Skyles before the court entered judgment,
making it void. They also claimed that Hopkins had withheld material information
from the court. A court commissioner denied the motion. The superior court
denied Banks's motion to revise the commissioner's ruling and awarded
3 Hopkins v. Banks, No. 74068-7-1 (Wash. Ct. App. Apr. 3, 2017)
(unpublished), http://www.courts.wa.gov/opinions/pdf/740687.pdf.
4 On August 26, 2015, Skyles filed suit against Hopkins for several claims,
including conversion. The trial court dismissed her claims on summary
judgment; she appealed the dismissal of the conversion claim. That appeal is
also before this panel. Banks v. Hopkins, No. 77218-0-1.
6,Hopkins, slip op. at 4, 10.
6 The motion is titled "Second Motion to Vacate Default Judgment,"
although it was the third filed in this matter.
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No. 77214-7-1 / 4
judgment to Hopkins for attorney fees and costs. Banks appeal the
commissioner's decision and the court's denial of their motion to revise that
ruling.
ANALYSIS
Banks appeal the denial of their motion to vacate a default judgment.
They claim that the default judgment is void because Hopkins failed to file with
the court a proper proof of service of their default judgment motion on Skyles
before the court entered the default judgment. They also claim that Hopkins and
their attorney failed to disclose information about Skyles's competency. Thus,
they contend, the superior court abused its discretion by not granting their motion
to vacate the default judgment. Because Hopkins remedied the irregular
certificate of service and Banks fail to show that Hopkins withheld material
information, we affirm the superior court.
Timeliness
As a preliminary matter, we consider Hopkins's challenge to the timeliness
of Banks's May 16, 2017, motion to vacate. Unless a superior court abuses its
discretion when it determines that a motion under CR 60(b) was or was not
timely, this court will not overturn that court's decision.7
7 Luckett v. Boeing Co., 98 Wn. App. 307, 312-15, 989 P.2d 1144 (1999)
(finding that the trial court did not abuse its discretion when it found a motion to
vacate a default judgment was untimely despite the court's preference for
resolving cases on the merits).
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No. 77214-7-1 / 5
In their motion to vacate, Banks identify, generally, CR 60(b) factors: (4)
"fflraud . misrepresentation, or other misconduct of an adverse party,"(5)"[t]he
judgment is void," and (11)"[a]ny other reason justifying relief from the operation
of the judgment" as providing authority for the court to vacate the default
judgment. A motion to vacate for these reasons must be filed "within a
reasonable time" but, unlike the reasons described in CR 60(b)(1), (2), and (3),
CR 60 does not limit that reasonable time to within one year.
During the motion hearing, the superior court noted that issues raised by
Banks were probably no longer timely since both had been raised long after
Skyles had died. The superior court also stated that it could not make a finding
about whether the actual notice of the default judgment hearing was served
properly or about Skyles's competency because of the amount of time that had
passed. But the superior court did not identify untimeliness as the basis for its
denial of the motion to vacate. Thus, we decline to decide the case on this issue
and evaluate the substantive questions below.
Motion to Vacate
CR 60(b) authorizes a court to set aside a default judgment upon a
showing of circumstances described in the rule.8 We review a superior court's
denial of a motion to vacate a default judgment under CR 60(b) for abuse of
discretion.8 If a superior court bases its decision to deny a motion to vacate
8 CR 55(c)(1).
9 Luckett, 98 Wn. App. at 309.
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No. 77214-7-1 /6
"upon tenable grounds and is within the bounds of reasonableness, it must be
upheld."1°
Because Banks do not show that the superior court abused its discretion
by denying their motion to vacate either on the basis that proof of service was
irregular or that the Hopkins withheld information material to the proceedings, we
affirm.
i. Proof of Service
Banks claim that Hopkins's failure to file proof of service in the form
required by CR 55(b)(4) before the default judgment hearing left the superior
court without authority to enter a default judgment. They maintain that the
judgment the court signed is void and that CR 60(b)(5) requires its vacation.
CR 55(a)(3) requires that a party who has appeared in a lawsuit be served
with written notice of a default motion at least five days before a hearing on the
motion. CR 5(b)(2)(B) describes how to prove service by mail: "Proof of service
of all papers permitted to be mailed may be by written acknowledgment of
service, by affidavit of the person who mailed the papers, or by certificate of an
attorney."
Here, Hopkins filed a certificate signed by paralegal Swanlund to prove
that their motion for default was mailed to Skyles at least five days before the
hearing on the motion. Because Swanlund was not an attorney, this certificate
did not satisfy the proof requirement of CR 5(b)(2)(B).
10 Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990).
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No. 77214-7-1 / 7
However, on January 6, 2016, Swanlund filed a sworn declaration of
service stating that she served Skyles by mail on January 13, 2015. This
declaration remedied the irregularity of the original proof of service filed with the
court. As the superior court noted, the declaration reaffirmed that the service
was achieved at the proper time, it did not "chang[e] the date [of the service to
Skyles] or mail[]it later or anything like that."
Banks begin their argument by reminding this court that service of a
summons and complaint must occur for a superior court to have personal
jurisdiction over a party. RCW 4.28.020 declares that once a superior court
acquires personal jurisdiction over a matter, that court has continuing jurisdiction
over the controversy from beginning to end.11 A motion to vacate is part of the
original lawsuit; the court "does not require independent jurisdictional grounds."12
This court found that Hopkins properly served Skyles with the summons and
complaint.13 So Hopkins's failure to file a proper proof of service of the motion
before the hearing did not create a jurisdictional issue.
Banks cite Brackman v. City of Lake Forest Park14 to support their
position. But Brackman does not help them here. In Brackman, this court
considered whether filing an unsworn certificate signed by a legal assistant
satisfied the strict time requirements for service of a trial de novo request
11 Lindgren, 58 Wn. App. at 591.
12 Lindgren, 58 Wn. App. at 591.
13 Hopkins, slip op. at 1-2.
14 163 Wn. App. 889, 262 P.3d 116 (2011).
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No. 77214-7-1 / 8
imposed by MAR 7.1(a).15 MAR 7.1(a) requires a party to file a request for a trial
de novo and proof of service within 20 days of the arbitration award. A failure to
strictly comply results in a loss of the right to a trial de novo. Because the
certificate did not provide proof of service, this court affirmed the dismissal of
Lake Forest Park's request.16
But MAR 7.1(a) does not apply here, and its filing requirement differs from
that for CR 55(a)(3). Also, the policy reasons for the strict application of MAR
7.1(a) described in Nevers v. Fireside, Inc.17 are not present in this case.
CR 55(b)'s requirement that proof of service be filed before a default
judgment enters refers to proof of service of the summons and complaint. It
cannot refer to proof of service of notice of the default motion because the
provision applies equally to cases where no defendant has appeared and no
notice of the motion is required. Given that Hopkins ultimately provided proper
proof of service, Banks provide no persuasive reason for vacating the default
judgment on this basis.
Banks also contend that Hopkins did not comply with the original PSA
when they mailed the notice directly to Billie Skyles Getschmann instead of in
care of Jennifer Wilson (now Banks). The PSA states, "All notices required by
this Purchase and Sale Agreement shall be considered properly delivered ...
15 Brockman, 163 Wn. App. at 898 (holding that "[am n unsworn certificate of
mailing that is not under oath or does not contain language 'that it is certified or
declared by the person to be true under penalty of perjury' does not constitute
'proof' that a copy has been served under MAR 7.1(a)").
16 Brockman, 163 Wn. App. at 898.
17 133 Wn.2d 804, 812-13, 947 P.2d 721 (1997).
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No. 77214-7-1 / 9
(3) on the second day following mailing, postage prepaid, certified mail, return
receipt requested: to Seller: Billie Skyles Getschmann . . . do Jennifer Wilson
425-231-6895." But the notice at issue here is not one "required by this
Purchase and Sales Agreement." CR 55(b)(3) requires it, and CR 5(b)(1)
requires that it be given directly to the party unless represented by counsel.
Banks's PSA argument has no merit.
Banks fail to demonstrate that the irregularity of the certificate of service
resulted in a void judgment rather than a voidable judgment because the superior
court had jurisdiction to enter the default judgment. Because they show no
prejudice to Skyles caused by the defective proof of service certificate, they
cannot show that the superior court abused its discretion by denying the motion
to vacate on this basis.
ii. Disclosure of Material Facts
Banks also challenge the superior court's rejection of their claim that "[t]he
Hopkins withheld information about red flags, concerning Skyles' mental
competency during the January 2015 default hearing." They assert that evidence
regarding Skyles's competency was material because a court cannot enter a
default judgment against an incompetent person.
Banks rely in part on the duties imposed on counsel by RPC 3.3(f) but do
not provide any authority supporting their claim that the superior court should
consider alleged violations of RPC 3.3(f) in a case not involving attorney
discipline. Instead, they cite as supporting authority In re Disciplinary Proceeding
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No. 77214-7-1/ 10
Against Carmick18 and Louisiana State Bar Ass'n v. White.19 But both of these
cases involve review of disciplinary proceedings by bar associations. Since they
fail to provide authority or argument supporting their claims under RPC 3.3(f), we
decline to review them.29
We do consider their assertions under CR 60(b)(4) and (11), each of
which authorizes the superior court to vacate a default judgment. To succeed on
a CR 60(b)(4) motion, the party asserting that an opposing party obtained the
judgment through fraud or other improper means must prove the supporting facts
by clear and convincing evidence.21 The party attacking the judgment must show
improper conduct that causes "the entry of the judgment such that the losing
party was prevented from fully and fairly presenting its case or defense."22 CR
60(b)(11) authorizes the superior court to vacate a judgment for "[a]ny other
reason justifying relief from the operation of the judgment."
18 146 Wn.2d 582, 48 P.3d 311 (2002).
19 539 So.2d 1216, 1220(1989).
29 In some cases a court has determined that consideration of an RPC
outside of a disciplinary hearing is appropriate. For example, courts have
identified RPC 1.8 as being a proper basis for "refus[ing] to enforce fee
agreements with attorneys as being against public policy." LK Operating, LLC v.
Collection Grp., LLC, 168 Wn. App. 862, 875, 279 P.3d 448 (2012). However, to
reach this decision, a court must be provided a basis in fact and law to apply the
RPC to the case at hand. Banks provide this court with neither. If an appellant
provides no argument supporting an assignment of error, we generally do not
consider it. Shelcon Constr. Grp., LLC v. Haymond, 187 Wn. App. 878, 889, 351
P.3d 895 (2015).
21 Peoples State Bank v. Hickey, 55 Wn. App. 367, 371-72, 777 P.2d 1056
(1989).
22 Lindgren, 58 Wn. App. at 596.
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No. 77214-7-1 / 11
The record does not contain evidence supporting Banks's claim. They
contend that Hopkins withheld from the court information showing issues with
Skyles's competency. They support their argument with a hodgepodge of
declarations, letters, e-mail messages, and voice-mail transcripts, none of which
show that Hopkins withheld material knowledge.
This hodgepodge includes a transcript of a voice-mail message from
Georgia Hopkins to Jennifer Banks that indicates both parties discussed Skyles's
competency. This transcript shows that Hopkins discussed the issue of
competency with Banks and undermines any assertion by Banks that Hopkins
hid any question of Skyles's competency from Banks.
As the superior court indicated, the failure of Banks to raise the issue of
Skyles's competency earlier further undermines their argument. They "were in
[the] best position to determine whether or not [Skyles] was competent and
whether this issue should be addressed" and the voice-mail demonstrates that
they were aware of the potential issue before the default judgment.
Banks also assert that Hopkins withheld attorney Carleton Knappe's letter
indicating that Skyles was probably incompetent. They do not establish that
Hopkins's attorney or the escrow company had possession of the letter. Lori
O'Neil of Snohomish Escrow, who oversaw the closing, and Hopkins's attorney,
Thomas L. Hause of Gourley Law Group, provided declarations stating that
neither the escrow company nor the attorney knew of Knappe's letter. Further,
the record indicates that neither the Gourley Law Group nor Snohomish Escrow
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No. 77214-7-1 /12
had a copy of the Knappe letter in their files. B. Craig Gourley asserted in his
declaration that he first received the Knappe letter on June 10, 2015, from
Banks's attorney, after the default judgment was entered.23 Without
demonstrating that the Hopkins' attorney had notice of the letter before the
default judgment, Banks cannot establish that Hopkins withheld this letter from
the superior court.
Banks do not establish that the superior court abused its discretion by not
vacating the judgment under CR 60(b)(4). They also do not provide any other
persuasive reason why the superior court abused its discretion in failing to vacate
under CR 60(b)(11).
Attorney Fees
Banks request attorney fees on appeal. Because they do not prevail, we
deny this request.
Hopkins also request attorney fees on appeal, citing the PSA and RCW
4.84.330.
The PSA states,
In the event that any suit or other proceeding is instituted by either
party to this [PSA] or that any costs, expenses or attorney fees are
incurred or paid by either party in enforcing this [PSA], the
substantially prevailing party, as determined by the court or in the
proceeding, shall be entitled to recover its reasonable attorneys
fees and all costs and expenses incurred relative to such suit or
proceeding from the substantially non-prevailing party, in addition to
such other relief as may be awarded.
23 The letter was copied to Skyles. Presumably this is how it reached
Banks's attorney.
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No. 77214-7-1 / 13
RCW 4.84.330 requires that a court award attorney fees to the prevailing
party if the contract provides for an award of reasonable attorney fees in an
enforcement action. Hopkins have prevailed. Upon compliance with RAP 18.1,
1
they are entitled to recover attorney fees and costs for this appeal.
CONCLUSION
We affirm. Banks fail to show that the superior court abused its discretion
by not vacating the default judgment. They do not establish that irregularities in
Hopkins's proof of service of the default motion on Skyles rendered the default
judgment void. They also failed to establish that Hopkins hid concerns about
Skyles's competence.
WE CONCUR:
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