Rodolfo Apostol, Appellant V. Ronald Wastewater District, Respondent

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
RODOLFO APOSTOL,
Appellant,
v.
RONALD WASTEWATER DISTRICT,
a King County municipal corporation,
Respondent.
No. 69996-2-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	April 21, 2014
Leach, J. — Rodolfo Apostol appeals the trial court's denial of his CR
60(b)(11) 	motion 	to 	vacate 	the 	dismissal 	of 	his 	lawsuit 	against 	Ronald
Wastewater District (District). 	He claims that he was incompetent to represent
himself and to testify during the original trial court proceedings. 	But Apostol did
not submit any evidence that established his alleged incompetence. 	And the trial
judge, who had observed Apostol in court during the lawsuit, found that he was
capable of representing himself. 	Because Apostol failed to identify extraordinary
circumstances warranting the requested 	relief, the trial court did not abuse its
discretion in denying the motion to vacate. We affirm.
FACTS
The District hired Apostol as a maintenance technician in 1994. 	In 2002,
Apostol 	began 	accusing 	co-workers 	and 	managers 	of discrimination 	and
harassment. 	Apostol's relationship with the District deteriorated until September

No. 69996-2-1 / 2
21, 2005, when he left the workplace and did not return. 	The District terminated
Apostol in February 2006.
On August 28, 2008, Apostol filed a lawsuit against the District, alleging
claims 	for 	harassment, 	discrimination, 	retaliation, 	negligent 	and 	intentional
infliction of emotional distress, and constructive discharge. 	On April 23, 2010,
the trial court dismissed the action on summary judgment. 	This court affirmed,
concluding that Apostol's claims were either barred by the statute of limitations or
unsupported by sufficient evidence to establish a 	prima facie case.1 	Apostol
appeared pro se throughout the proceedings in the trial court and on appeal.
On January 9, 2013, represented by counsel, Apostol moved to vacate the
summary judgment under CR 60(b)(11). 	He argued that the discrimination and
harassment he suffered at work had aggravated his mental illness, rendering him
incompetent to represent himself or to testify during the trial court proceedings.
Apostol supported the motion primarily with declarations from several treatment
providers, an attorney, and a co-worker.
The same judge who had conducted the trial court proceedings denied the
motion to vacate. 	The court expressly noted that despite any existing mental
infirmity, Apostol's correspondence with opposing 	counsel during 	the original
proceedings and his conduct in open court established that he "was sufficiently
1 Apostol v. Ronald Wastewater Dist., noted at 162 Wn. App. 1036, 2011 WL
2611748, review denied. 173 Wn.2d 1010 (2012).

No. 69996-2-1 / 3
capable of representing himself so as to make the relief requested under CR
60(b)(11) unwarranted." Apostol, appearing pro se, has appealed.
ANALYSIS
Although 	he is appealing from the denial of his CR 60(b)(11) motion to
vacate, 	Apostol 	has 	devoted 	most 	of 	his 	arguments 	to 	reasserting 	the
discrimination, harassment, and retaliation claims that the trial court dismissed on
summary judgment in 2010. 	But this court affirmed the dismissal on appeal, and
that decision became final when the mandate issued on 	February 29, 	2012.2
Moreover, a CR 60(b) motion is not a substitute for an appeal.3 	"An appeal from
denial of a 	CR 60(b) motion is limited to the propriety of the denial not the
impropriety of the underlying judgment."4 	Accordingly, we review only the denial
of Apostol's CR 60(b)(11) motion to vacate.
CR 60(b)(11) permits the trial court to vacate a judgment or order for
"[a]ny other reason justifying relief." 	Relief under CR 60(b)(11) is limited 	to
"'extraordinary circumstances not covered by any other section of the rule.'"5 The
circumstances 	must 	involve 	irregularities extraneous to 	the 	court's action 	or
2 See RAP 12.7(a) (generally, Court of Appeals loses power to change or
modify its decision upon issuance of the mandate).
3 See Biurstrom v. Campbell. 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
4 Biurstrom. 27 Wn. App. at 450-51.
5 In re Marriage of Yearout. 41 Wn. App. 897, 902, 707 P.2d 1367 (1985)
(quoting State v. Keller. 32 Wn. App. 135, 140, 647 P.2d 35 (1982)).

No. 69996-2-1 / 4
concerns about the regularity of the court's proceedings.6 	We review the trial
court's ruling on a motion to vacate for an abuse of discretion.7
Apostol 	contends 	that 	a 	mental 	disability 	made 	him 	incompetent 	to
represent himself and to testify during the original trial court proceedings and that
this extraordinary circumstance justified vacation of the underlying judgment. 	In
Washington, courts presume the mental competency of litigants.8 	But courts
must balance the presumption of competency and "the fundamental right of a
party to use his or her personal judgment and intelligence in connection with his
or her lawsuit" with the obligation "to protect the rights of a litigant who appears to
be incompetent."9 	Consequently, the trial court "should appoint a guardian ad
litem for a litigant when it is 'reasonably convinced that a party litigant is not
competent, understandingly and intelligently, to comprehend the significance of
legal proceedings and the effect and relationship of such proceedings in terms of
the best interests of such party litigant.'"10
Courts 	also 	presume 	that 	every 	person 	is 	competent 	to 	testify.11
Witnesses 	are 	incompetent 	to 	testify 	if they 	are 	(1) 	"of 	unsound 	mind, 	or
intoxicated 	at 	the 	time 	of 	their 	production 	for 	examination," 	or 	(2) 	"appear
6 Yearout. 41 Wn. App. at 902.
7 In re 	Marriage of Shoemaker. 	128 Wn.2d 	116, 120-21, 904 P.2d 1150
(1995).
8 Vo v. Pham. 81 Wn. App. 781, 784, 916 P.2d 462 (1996).
9 Vo, 81 Wn. App. at 785.
10 Vo, 81 Wn. App. at 790 (trial court erred by failing to conduct a hearing to
determine pro se litigant's competency after litigant exhibited bizarre behavior
during trial) (quoting Graham v. Graham. 40 Wn.2d 64, 	66-67, 240 P.2d 564
(1952)).
11 State v. S.J.W.. 170 Wn.2d 92, 100, 239 P.3d 568 (2010).
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No. 69996-2-1 / 5
incapable of receiving just impressions of the facts, respecting which they are
examined, or of relating them truly."12 	The determination of witness competency
necessarily rests primarily with the trial judge, who "sees the witness, notices his
manner, and considers his capacity and intelligence."13
To support his claim of a 	mental disability, Apostol submitted several
declarations and 	a 2011 	administrative law decision finding 	him disabled for
purposes of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (d).
Susan Mindenbergs
Apostol retained attorney Mindenbergs in May 2005 to have discussions
with the District about his harassment allegations. 	In September 2005, Apostol
called Mindenbergs and asked her to file a civil rights action against the District.
Apparently based on Apostol's distress during the telephone call, Mindenbergs
declined to 	represent him, 	believing that his 	mental 	condition 	rendered 	him
unable "to withstand the stress entailed in prosecuting a civil rights suit."
Stephen Paulus
Paulus, 	a 	maintenance 	manager 	for 	the 	District, 	hired 	Apostol 	and
remained his supervisor until retiring in 2003. 	Based on 	his observations, he
believed that Apostol's claims of harassment and discrimination were credible.
Paulus does not indicate that he had any contact with Apostol after 2005.
12RCW5.60.050(1)-(2).
13 State v. Allen. 70 Wn.2d 690, 692, 424 P.2d 1021 (1967).

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Hainan Berman. PhD
Berman, a clinical psychologist, provided anger management counseling
for Apostol in 1997 and 1999. 	Apostol returned for therapy in 2006, reporting
distress and anxiety arising from 	his experiences at the District. 	In 2012, in
response to a 	request from Apostol's counsel, Berman acknowledged that he
had not seen Apostol since 2006 and that his contact up to that time had been
"episodic, 	limited 	and 	intended 	solely 	to 	provide 	support 	and 	short-term
psychotherapy." 	Based on that contact, Berman "doubt[ed]" that Apostol had
been fully capable of effectively representing himself or testifying "in a lawsuit
against his employer in 2006."
Kenneth Mayeda. MP
Mayeda, Apostol's personal physician, began treating Apostol for anxiety,
depression, and insomnia in the late 1990s. 	Mayeda attributed the deterioration
in Apostol's condition in 2004 to his experiences at work. 	From October 2005 to
April 2006, Mayeda certified that Apostol needed to take a leave from work to
facilitate his recovery.
David Dixon. PhD
Dixon, 	a 	clinical 	psychologist, 	met 	Apostol 	in 	December 	2006 	in
conjunction with Apostol's worker's compensation claim. 	Dixon administered
standardized 	psychological tests and 	testified 	on Apostol's behalf before the
Board of Industrial Insurance Appeals in February 2007. 	During the proceeding,
Dixon observed Apostol, who 	represented himself. 	Dixon apparently had no
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No. 69996-2-1 / 7
further 	contact with Apostol 	until 	June 2012, 	when 	he 	performed 	a 	second
psychological evaluation to support the motion to vacate.
Based on his evaluations and contact with Apostol in 2006, 2007, and
2012, 	Dixon 	diagnosed 	Apostol 	with 	posttraumatic 	stress 	disorder 	and
generalized anxiety disorder. 	He concluded that Apostol's "mental illnesses likely
rendered 	him 	unable 	to 	represent 	himself 	in 	court 	or 	in 	any 	adversarial
proceeding" from 2005 to 2012 and incapable of testifying as a witness from
2005 	"through, 	at 	least, 	2008." 	Dixon 	found 	that 	Apostol's 	condition 	had
improved by 2012 sufficiently to permit him to testify.
2011 Administrative Law Decision
On June 22, 	2011, an administrative law judge found that Apostol had
been disabled since September 21, 2005, under sections 216(i) and 223(d) of the
Social Securities Act. 	In determining that Apostol's condition was sufficiently
severe to establish disability, the judge relied on, among other things, Apostol's
feelings 	of 	being 	unappreciated 	and 	misunderstood, 	his 	difficulty 	in forming
relationships, restrictions in the activities of daily living, anger control problems,
negativistic attitudes, depressed mood, and "moderate difficulties in maintaining
concentration, persistence or pace."
Apostol represented himself in the trial court from August 28, 2008, when
he filed the lawsuit against the District, until April 23, 2010, when the trial court
dismissed the claims on summary judgment. 	He alleged 13 causes of action in
his 	complaint 	and 	participated 	in 	the 	subsequent 	proceedings, 	including

No. 69996-2-1 / 8
discovery. 	He corresponded with opposing counsel, responded to motions, and
appeared 	at 	court 	hearings. 	In 	his 	own 	supporting 	declaration, 	Apostol
acknowledged that he consulted with an attorney before filing the lawsuit and that
he "researched the law and filed the appropriate documents with the court to the
best of my ability." After the trial court dismissed his claims, Apostol represented
himself throughout the appeal.
Mindenbergs, Paulus, and Dr. Berman had no contact with Apostol after
2005 or 2006. 	Dr. Dixon evaluated Apostol in February 2007 and again in 2012,
but he 	had 	no contact with him during the trial court 	proceedings. 	Apostol
apparently continued to see Dr. Mayeda, his personal physician, during 2008 and
2009. 	But Dr. Mayeda did not describe Apostol's condition during this period and
did not suggest that Apostol had ever been incompetent to represent himself or
to testify.
Although 	the 	administrative 	law 	judge 	found 	that 	Apostol 	had 	been
disabled since September 2005, the decision defined "disability" for purposes of
the Social 	Security Act as "the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment or
combination 	of 	impairments." 	Nothing 	in this 	definition 	or 	in the 	decision
suggests 	that 	Apostol, 	who 	represented 	himself 	and 	testified 	during 	the
proceeding, was incompetent.
In summary, none of the declarants treated or observed Apostol during the
course of the trial court proceedings. 	Nor did Apostol identify any incident or
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No. 69996-2-1 / 9
conduct during the proceedings suggesting that he was unable to comprehend
the legal significance of the proceedings or indicating that he was of "unsound
mind" or 	incapable 	of receiving 	just 	impressions 	of the facts.14 	Under 	the
circumstances, the evidence of alleged incompetence was highly speculative.15
The 	trial judge, 	on 	the 	other 	hand, 	had 	observed 	Apostol 	throughout 	the
proceedings and expressly noted Apostol's participation in the action and his
conduct in open court.
Apostol's reliance on In re Disciplinary Proceedings Against Meade16 is
misplaced. 	In Meade, the court held that in order to be competent to appear in
bar 	disciplinary 	proceedings, 	an 	attorney 	must 	meet 	the 	same 	standard
governing a criminal defendant's competency to stand trial.17 	In addition, due
process requires that attorneys appearing pro se in disciplinary proceedings have
"the requisite mental competency to intelligently waive the services of counsel or
to adequately represent himself or herself."18
Apostol 	has not cited any authority suggesting that a similar standard
applies to 	civil 	litigants 	who appear 	pro se. 	Moreover, 	the 	incompetency
determination in Meade rested on the uncontroverted evaluation of a psychiatrist
14 See 	State v. Watkins, 	71 Wn. App. 	164, 	169, 	857 	P.2d 	300 	(1993)
("unsound 	mind" 	under 	RCW 	5.60.050 	"refers 	only 	to 	those 	with 	no
comprehension at all, not to those with merely limited comprehension").
15 In re Disciplinary Proceeding Against Koehler. 110 Wn.2d 24, 30, 750 P.2d
254 (1988) (psychiatrist's evaluation of competency one year after relevant time
period too speculative when contradicted by firsthand observations of hearing
officer).
16 103 Wn.2d 374, 693 P.2d 713 (1985).
17 Mead, 103 Wn.2d at 380.
18 Mead, 103 Wn.2d at 381.

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and 	the 	hearing 	officer's 	contemporaneous 	observations 	questioning 	the
attorney's mental condition. 	Apostol failed to submit any comparable evidence to
support his claimed incompetence.
Because 	Apostol 	failed 	to 	establish 	extraordinary 	circumstances
warranting relief under CR 60(b)(11), the trial court did not abuse its discretion in
denying the motion to vacate.
Affirmed.
A*/
WE CONCUR:
-Cr.(i*\<>. 	CA
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