* Madison Evans, et al v. Zachary M. Firl, et ux

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MADISON EVANS, individually, and as
parent and guardian of R.A.C., a minor
child,
Respondents,
v.
ZACHARY M. FIRL, and JANE DOE
FIRL, husband and wife, individually and
the marital community composed thereof,
Appellants.
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No. 38364-4-III
OPINION PUBLISHED IN PART
SIDDOWAY, C.J. — Zachary Firl appeals the denial of his motion to vacate an
$834,567.54 default judgment entered against him for a personal injury claim he had
tendered to his homeowner’s insurer. He claims he was never served with process, that
his insurer and lawyer had appeared but were not given required notice, and that
equitable grounds supported vacating the $800,000.00 awarded as noneconomic
damages.
FILED
JANUARY 31, 2023
In the Office of the Clerk of Court
WA State Court of Appeals Division III
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The only evidence presented in support of the sizeable noneconomic damage
award was evidence that R.A.C.1 incurred $26,067.79 in medical expenses after being
bitten by Mr. Firl’s dog, that the toddler was a candidate for scar revision surgery at a
cost of $8,500.00 to $10,000.00, and skeletal hearsay information about six settlements
allegedly negotiated by R.A.C.’s lawyers for other clients with dog bite injuries. No
hearing was held.
One of the ways Washington law permits a defaulting party to demonstrate a
prima facie defense to a large noneconomic damage award is by showing that the trial
court was presented with legally insufficient evidence to support the award. The
plaintiffs’ evidence was insufficient here. In the published portion of this opinion, we
hold that applying equitable principles and CR 55(b)(2), the clear deficiency in that
evidence overcomes even marginal demonstrations of excusable neglect and diligence.
In the unpublished portion of the opinion, we affirm the trial court’s rejection of Mr.
Firl’s arguments that he overcame the plaintiffs’ proof of service and that he had
appeared and was entitled to notice before default.
1 Initials are used to protect the privacy interests of R.A.C., a minor child. Gen.
Orders of Division III, In re the Use of Initials or Pseudonyms for Child Victims or Child
Witnesses (Wash. Ct. App. June 18, 2012), https://www.courts.wa.gov/appellate_trial
_courts/?fa=atc.genorders_orddisp&ordnumber=2012_001&div=III.
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We affirm the judgment as to liability, the $34,567.54 awarded as special
damages, and the $701.95 awarded as statutory costs. We reverse the award of
noneconomic damages and remand for a trial on that element of the plaintiffs’ damages.
FACTS AND PROCEDURAL BACKGROUND
On a January 2019 play date at a home owned by Zachary Firl, Madison Evans’s
then two-year-old son, R.A.C., was bit in the face by Mr. Firl’s dog. The injuries and a
resulting infection allegedly required five days of in-patient hospitalization.
When Mr. Firl was contacted months later by a lawyer representing Ms. Evans and
her son, Mr. Firl referred the lawyer to his homeowner’s insurer, Allstate Insurance
Company, where Mr. Firl had dealt with adjuster Craig Peters. In July 2019, R.A.C.’s
lawyers wrote to Allstate’s claims department, informing it of their representation and
that they would compile a settlement letter with supporting documentation when R.A.C.
attained maximum medical improvement. Mr. Peters promptly responded, requesting,
among other information and documentation, medical records, the identification of all
medical care providers, and a signed medical authorization.
Over the next six months, Mr. Peters followed up twice requesting information on
R.A.C.’s injuries and treatment, receiving no response until a settlement demand letter
was provided on January 15, 2020. The letter made a total demand of $335,718.54—
materially more than Mr. Firl’s $250,000.00 insurance limits. Mr. Peters made a
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counteroffer of $66,731.49 three weeks later, proposing to pay $18,231.49 toward
medical specials, $8,500.00 for future surgery, and $40,000.00 in noneconomic damages.
Mr. Peters claims to have followed up by letter or phone call to R.A.C.’s lawyers
monthly thereafter through June 2020, largely without response, but contends he spoke
with a case manager at the law firm on May 12, 2020. The case manager allegedly said
she would try to reach the client and get back to him. Instead, in late June 2020, R.A.C.’s
lawyers prepared a summons and complaint on behalf of R.A.C. and his mother that were
allegedly served on Mr. Firl at 3:28 p.m. on July 25, 2020. They filed the summons and
complaint in August 2020 and obtained an order of default on September 28, 2020.
Mr. Peters, having no knowledge of the lawsuit, claims he sent a follow-up letter
to the law firm on November 2, 2020, and left a phone message on January 6, 2021, again
requesting contact. His contacts went unanswered.
On January 20, 2021, R.A.C.’s and his mother’s lawyers filed a motion for default
judgment, seeking $784,567.54 in damages for R.A.C. and $50,000.00 for his mother.
They noted it for hearing on the afternoon of January 27, 2021.
The plaintiffs’ lawyers’ first acknowledgment of Mr. Peters’s post-May 2020
contacts was received by him on February 1, 2021, when he received a letter from
attorney Maridith Ramsey dated January 28, 2021. Ms. Ramsay’s letter stated that “[a]s
indicated at the time of the initial offer in this case, my client is not willing to negotiate
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with the carrier due to the insistence that it take improper reductions and avail itself to the
benefit of collateral source payments. . . . As a result, we opted to initiate litigation . . . I
do not have the authority to proceed with further settlement discussions at this time.”
Clerk’s Papers (CP) at 82. The letter attached a “courtesy copy” of the summons and
complaint. Id. The letter did not disclose, and the attachment did not reveal, that Mr. Firl
had already been served or that an order of default, and possibly a judgment, had already
been entered.
Court records indicate that R.A.C.’s and Ms. Evans’s lawyers failed to appear for
the January 27 hearing, which was struck. Nevertheless, on February 1, 2021, and
apparently without conducting a hearing, the trial court entered the plaintiffs’ proposed
findings, conclusions, and judgment, awarding the $834,567.54 in total damages and
$701.95 in costs they had requested.
Having learned on February 1 that a lawsuit had been filed, Mr. Peters called Mr.
Firl on February 3, 2021, to see if he had received a copy of the complaint. Mr. Firl
stated he had not. He agreed to notify Mr. Peters if and when he was served. Mr. Peters
then arranged for Allstate to retain an attorney to represent Mr. Firl.
Several weeks after defense counsel was retained, he discovered the default
judgment entered on February 1. According to the defense lawyer, he made the
discovery on March 26, 2021, and immediately wrote, faxed and attempted to phone Ms.
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Ramsey to inform her the default had been taken improperly. The only response he
received was a notice of unavailability filed on April 19, 2021, stating that the firm and
its lawyers would be unavailable from April 28, 2021 through May 7, 2021.
Defense counsel filed a motion for relief from the judgment on June 23, 2021. Mr.
Firl’s lead argument was that he had never been served, and that under CR 60(b)(5) the
judgment was void. Alternatively, he sought relief on equitable grounds under CR
60(b)(1). He argued that R.A.C.’s lawyers’ failures to respond to Mr. Peters’s contacts
were deceptive, particularly Ms. Ramsey’s failure to disclose in her January 28, 2021
letter that Mr. Firl had already been served and that an order of default, and possibly
judgment, had already been entered. He argued that the damages attributable to the claim
were “much closer to [Allstate’s] $66,731.49 offer than the $834,567.54 judgment
entered,” and no substantial hardship would result if the judgment were vacated, “since
the reasonable amount of damages will be either agreed upon or determined by a jury.”
CP at 58. Even if the judgment’s finding of liability was not set aside, Mr. Firl argued
that the money judgment should be, relying on this court’s 1999 decision in Shepard
Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd & Hokanson, 95 Wn. App. 231,
241-42, 974 P.2d 1275.
Mr. Firl’s motion was supported by declarations from his lawyer, Mr. Firl and Mr.
Peters. Mr. Firl testified that he had never been served and the description of the person
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served on the return of service did not fit him, as he was 23 years old at the time of the
alleged service, not 27. The return of service had described the person served as “Age:
27, Sex: M, Race/Skin Color: WHITE, Height: 5’9, Weight 180, Hair: BROWN, Glasses:
N.” CP at 9. Mr. Firl testified that the description of the person served “appears to match
a former renter . . . who was 27 years old at the time” and who he believed moved out of
the residence “in late summer of 2020.” CP at 64. Defense counsel argued in Mr. Firl’s
briefing that “a temporary renter . . . would not be a person of ‘suitable discretion’
sufficient for RCW 4.28.080(16).” CP at 57.
Mr. Peters’s and defense counsel’s declarations addressed their actions taken on
Mr. Firl’s behalf and their belated discovery of the lawsuit, order of default, and default
judgment. Mr. Peters testified to the $335,718.54 settlement demand he had received
from plaintiffs’ counsel and testified that after reviewing the information provided to
him, he had offered $66,731.49, which he believed to be a reasonable amount of
damages.
Mr. Firl appeared and testified at the hearing on the motion to vacate the default
judgment. He testified that his birth date was July 9, 1996, making him 24 on the day of
alleged service rather than 23. He denied being served. He testified that in July 2020,
there were five others of about his age living with him in his home, and that visitors and
friends were “always . . . coming in and out.” Report of Proceedings (RP) at 17. He
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testified that his housemates had no responsibility other than to pay rent and implied they
were irresponsible. E.g., RP at 18 (“[i]t was always a mess and they never did anything
anyways”). He testified that no housemate or visitor to his house ever told him they had
received legal documents for him. He testified that if served, he would have contacted
Allstate and asked what he needed to do.
After the lawyers concluded their examination of Mr. Firl, the judge asked Mr. Firl
where he was on July 25, 2020, at 3:30 in the afternoon, and he answered, “Honestly,
Your Honor, I have no idea. If it was on a Monday through Saturday, I was at work[.]
I get off work at three o’clock when I leave the job site.” RP at 22. The court continued,
“And you have no way to reconstruct that[?]” to which Mr. Firl responded, “I could try
and find an old pay stub.” Id.
After hearing the evidence and argument, the court denied Mr. Firl’s motion to
vacate the judgment. The court expressed surprise that Mr. Firl had not presented
evidence beyond his own declaration and testimony that he had not been present and was
not served:
THE COURT: . . . Look, the burden is on the defendant to show that
he wasn’t served and that he didn’t receive it. . . . [The return of service]
says Saturday, July 25th, at 3:28 p.m. It was on him to figure out where he
was and what could have happened that day, and he hasn’t done that, at
least not to the Court’s satisfaction. I’m not convinced by a preponderance
of the evidence, not to mention clear and convincing, that he didn’t get
it. . . .
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. . . .
It seems like he could have figured out whether he was even home
that day or not. He could have gone back and looked at his phone records.
He could have looked at what he was doing and where he was going and
checkbooks—where did he make Visa purchases, if he did . . . . He could
have looked at his work record . . . . So he comes here without it, and I am
just unable to make a finding that he for sure wasn’t the one—didn’t get
service.
RP at 29-31. The court discounted the importance of Mr. Firl not being 27 years old,
stating: “I mean, he looks like—I couldn’t tell his age if I looked at him. I couldn’t tell
whether he was 23 or 27 or 24. I have no idea. And I just assume that’s what the process
server just assumed.” RP at 31. The plaintiffs had argued that Mr. Firl essentially
admitted that his 27-year-old roommate was served, which would itself suffice, but the
court rejected that argument, observing that the return of service “doesn’t say, ‘I served a
suitable person.’ It says: I served him.” RP at 31.
The court also questioned the delay between defense counsel learning of the
default judgment and his moving to vacate it.
Mr. Firl’s argument at the hearing had addressed his alternative challenge to the
noneconomic damage award, reminding the court that “the vast majority of damages in
this case are non-economic damages.” RP at 23. He argued that while plaintiffs’ counsel
had provided Mr. Peters with evidence of R.A.C.’s medical expenses, Mr. Firl lacked
information with which to respond to the noneconomic damages. Plaintiffs did not
respond to the challenge to the noneconomic damage amount at the hearing. Their
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briefing opposing Mr. Firl’s motion had argued that Mr. Peters’s declaration that
$66,731.49 was a reasonable total damages amount was speculative opinion. The court
did not offer any reason for rejecting Mr. Firl’s argument that the noneconomic damages,
at a minimum, should be set aside.
The court’s handwritten order entered at the conclusion of the hearing states, “The
defendant has not proved that service did not occur by any burden of proof,” and, “The
court finds no other equitable grounds on which to vacate the default or void the
judgment.” CP at 123. Mr. Firl appeals.2
ANALYSIS
Mr. Firl makes three assignments of error. He prevails on his third assigned error,
which is the one we address in the published portion of the opinion.
2 Represented by new counsel on appeal, Mr. Firl initially moved for leave to
submit five documents as additional evidence under RAP 9.11, either for consideration
by the trial court or for this court’s consideration on appeal. Mr. Firl contends that some
of the documents provide the corroboration of his absence from home at the time of
service that the trial court ruled was lacking. Our commissioner denied the motion,
finding that the proposed evidence was available at the time of the hearing and Mr. Firl
did not demonstrate good cause for failing to present it to the trial court.
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I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO CONSIDER AND GRANT
MR. FIRL’S CHALLENGE TO THE NONECONOMIC DAMAGE AWARD, BECAUSE NO
SUBSTANTIAL EVIDENCE SUPPORTS IT
Mr. Firl’s third assignment of error is that the trial court failed to consider and
grant his request for relief from excessive noneconomic damages under CR 60(b)(1) and
White v. Holm, 73 Wn.2d 348, 438 P.2d 581 (1968).3
CR 60(b)(1) authorizes the trial court to relieve a party from a judgment for
“[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a
judgment or order.” The longstanding showing that supports vacating a default judgment
for these reasons is “(1) that there is substantial evidence supporting a prima facie
defense; (2) that the failure to timely appear and answer was due to mistake,
inadvertence, surprise, or excusable neglect; (3) that the defendant acted with due
diligence after notice of the default judgment; and (4) that the plaintiff will not suffer a
substantial hardship if the default judgment is vacated.” Little v. King, 160 Wn.2d 696,
703-04, 161 P.3d 345 (2007) (citing White, 73 Wn.2d at 352 (citing, in turn, Hull v.
Vining, 17 Wash. 352, 49 P. 537 (1897))).
3 The assigned error also challenges the trial court’s failure to grant relief under
CR 60(b)(11), but Mr. Firl did not adequately brief or argue subsection (11) as a basis for
relief in the trial court or on appeal. We will not consider issues that are not adequately
briefed and argued, even if they are included as assignments of error. See Holland v. City
of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (“Passing treatment of an issue
or lack of reasoned argument is insufficient to merit judicial consideration.”).
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The first two factors are the major elements to be demonstrated by the moving
party. White, 73 Wn.2d at 352. When the moving party is able to demonstrate a strong
or virtually conclusive defense to the opponent’s claim, “scant time will be spent
inquiring into the reasons which occasioned entry of the default, provided the moving
party is timely with his application and the failure to properly appear in the action in the
first instance was not willful.” Id. On the other hand, if the moving party demonstrates a
weaker defense but one that would, prima facie at least, warrant a trial on the merits, the
reasons for his failure to timely appear in the action before the default will be scrutinized
with greater care, as will his diligence after notice of the default, and the potential
hardship on the opposing party. Id. at 352-53.
In determining the primary factor of whether the CR 60 movant has presented
substantial evidence of a prima facie defense, the court reviews the evidence in the light
most favorable to the moving party. Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn.
App. 829, 834, 14 P.3d 837 (2000). This is consistent with the primary purpose for
requiring a meritorious defense, which is to avoid the useless trial that would occur if the
defendant has no factual basis on which to defend. Griggs v. Averbeck Realty, Inc., 92
Wn.2d 576, 583, 599 P.2d 1289 (1979). We review a trial court’s decision on a motion to
set aside a default judgment for abuse of discretion. Little, 160 Wn.2d at 702 (citing Yeck
v. Dep’t of Lab. & Indus., 27 Wn.2d 92, 95, 176 P.2d 359 (1947)). An abuse of
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discretion is more readily found when the trial court denies a trial on the merits than
when a judgment is set aside and a trial is had. White, 73 Wn.2d at 351-52.
A. Washington decisions recognize three ways to address the prima facie
defense factor when an allegedly excessive award of noneconomic
damages is challenged
In Little, the Supreme Court accepted it as a given that a party can rely on
CR 60(b)(1) to request the setting-aside of an allegedly excessive default damage award
without also seeking to set aside the finding of liability. 160 Wn.2d at 704 (majority),
716 (Madsen, J., concurring/dissenting). Little was injured in two rear-end collisions
caused in quick succession by King, a 16- to 17-year-old driver. Id. at 699. King
responded in person after being served and allowed a judgment by default to be taken
against her. She had no defense to liability. Little v. King, noted at 127 Wn. App. 1021,
2005 WL 1090134 at *4 & n.3 (unpublished), aff’d, 160 Wn.2d 696, 161 P.3d 345
(2007). After the court awarded damages totaling $2.1 million, King retained counsel
and sought to set aside only the award of damages. Little, 160 Wn.2d at 702.
The opinions in Little recognize three ways to address White’s prima facie defense
factor when a default damage award determined under CR 55(b)(2) is challenged. One is
a fact-based showing of a defense; a second is excuse-based, pointing to the difficulty of
rebutting a large general-damages claim without the benefit of discovery; and the third is
a challenge to the legal sufficiency of evidence to support the damage award.
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1. Fact-based showing
A fact-based showing is common and literally conforms to Little’s statement that
the first primary consideration is whether “substantial evidence support[s] a prima facie
defense.” 160 Wn.2d at 703-04. It is illustrated by White. In White, the defendant had
stepped back from the recessed entryway to his office and, when he turned on the
sidewalk, either collided with or brushed an elderly passer-by. She fell and was injured.
73 Wn.2d at 349. White, the passer-by, sued, and as a result of a misunderstanding
between Holm and his insurer, no answer was filed. Id. at 349-50. After a $16,497
default judgment was taken, Holm moved to set it aside, claiming his failure to appear
and respond was due to mistake, inadvertence, surprise or excusable neglect.
To demonstrate at least a prima facie defense, Holm testified by affidavit that
White was not visible to him from the recessed entry; his presence and actions were
clearly visible to her; in turning onto the sidewalk, he merely brushed her with his arm;
and her fall was occasioned by her own evasive action. Id. at 350-51. The Supreme
Court observed that the facts presented could give rise to “a factual issue revolving about
either negligence on the part of Mr. Holm or contributory negligence on the part of Mrs.
White, or both.” Id. at 353.
Fact-based showings of a prima facie defense can be made not only to liability, but
also to an allegedly excessive award of damages. In Showalter v. Wild Oats, 124 Wn.
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App. 506, 101 P.3d 867 (2004), a grocery customer obtained a default judgment for
injuries sustained when she slipped and fell on a grocery floor. Of the over-$28,000
judgment amount, $25,000 was for past and future noneconomic damages. Id. at 513. In
moving to vacate the judgment, the grocer offered evidence of reasonable care as a
defense to liability: the floor had been swept 20 minutes before the fall, the staff had no
notice of a hazardous condition, and the grocer adopted and followed policies to protect
against overlooked debris on the floor. Id. The grocer also offered a fact-based prima
facie defense to the general damages award: it pointed to evidence that Ms. Showalter
had preexisting medical conditions, including having received chiropractic and spinal
treatment for injuries sustained in 1997 and 1999. Id. The court held that this evidence,
viewed in the light most favorable to the grocer, “persuasively challenge[d] the amount of
damages for past and future noneconomic loss.” Id.
Other evidence that has been recognized as presenting at least a prima facie
defense to a large general damage award includes evidence in an auto accident case that
one injured party did not seek treatment for over two years and another, who admitted
prior neck and back problems at the time of the accident, had sought only six months of
massage therapy. Gutz v. Johnson, 128 Wn. App. 901, 917-18, 117 P.3d 390 (2005),
aff’d sub nom. Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 (2007). In a more recent
auto accident decision, a prima facie defense was demonstrated by evidence that medical
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progress notes reported the injured party was pain free and returning to full activities
within five weeks after surgery for a herniated disc caused by the accident. VanderStoep
v. Guthrie, 200 Wn. App. 507, 523, 402 P.3d 883 (2017).
Mere speculation is not substantial evidence of a defense. Little, 160 Wn.2d at
705 (citing White, 73 Wn.2d at 352). Instead, a defendant generally must submit
affidavits identifying specific facts that support a defense; allegations or conclusory
statements are insufficient. VanderStoep, 200 Wn. App. at 519 (citing Shepard, 95 Wn.
App. at 239). In Little, the Supreme Court characterized an insurance adjuster’s
declaration that Little’s medical records revealed prior reports of headaches, hip pain, and
depression as presenting no “competent” evidence of a defense because the insurer
offered no proof that Little’s prior complaints were causally related to her postaccident
damages. Little, 160 Wn.2d at 705.
Little can be distinguished from other cases in which tenuous or even incompetent
evidence of a defense has not been fatal to a defaulting party’s motion for relief, because
in Little, King failed to demonstrate both of White’s primary factors. Not only was
competent evidence of a defense lacking, but King “fail[ed] to show that [her] failure to
appear was occasioned by mistake, inadvertence, surprise, or excusable neglect,” leaving
the trial court with “no equitable basis for vacating judgment.” Id. at 706 (emphasis
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added). King had appeared in the lawsuit but declined to file an answer even when the
trial court adjourned the default hearing to give her that opportunity.
Little held that the trial court abused its discretion by vacating the default
judgment on these facts, but the court did not retreat from White’s holding that even a
tenuous defense may sufficiently support a motion to vacate. As this court observed in
VanderStoep, the court in Little seemed to acknowledge that depending on the other
equitable considerations, even incompetent evidence might suffice, when it stated,
“‘Except in unusual circumstances, a party who moves to set aside a judgment based
upon damages must present evidence of a prima facie defense to those damages.’”
VanderStoep, 200 Wn. App. at 521 (quoting Little, 160 Wn.2d at 704).
2. Excuse-based showing
In Calhoun v. Merritt, 46 Wn. App. 616, 731 P.2d 1094 (1986), this court allowed
the prima facie defense factor to be addressed by an explanation why the defendant
would have difficulty presenting a defense without discovery. Calhoun was an auto
accident case in which the defendant challenged a default judgment in an amount slightly
exceeding $55,000, $50,000 of which was for damages for pain and suffering. The trial
court denied a motion to set the judgment aside.
The “evidence” offered as Merritt’s prima facie defense was an insurance
adjuster’s affidavit expressing the view that the claim “has a value far less than the
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judgment entered.” Id. at 618. This court agreed with the trial court that because the
affidavit merely stated allegations and conclusions, it was insufficient. Id. at 620. This
court was nevertheless persuaded by Merritt’s argument that presenting a defense to
damages for pain and suffering requires some opportunity for discovery. Id. The court
observed:
[D]evelopment of a defense to the damages would require the examination
of Mr. Calhoun by a defense expert. Here, the default was entered before
any such discovery could take place. Moreover, presenting a defense to
damages for pain and suffering is always complicated by the subjective as
opposed to objective nature of such damages.
Id. Taking the position that “it would be inequitable and unjust,” to deny the motion to
vacate for failure to present a prima facie defense, this court looked to White’s three
remaining considerations and concluded that they weighed in favor of vacating the
damages. Id.
Calhoun has been relied on in later published and unpublished cases. For
published cases relying on Calhoun, see Shepard, 95 Wn. App. at 241; Little, 160 Wn.2d
at 714 (Madsen, J., concurring/dissenting); and VanderStoep, 200 Wn. App. at 523-24.
In Farmers Insurance Co. v. Waxman Industries, Inc., 132 Wn. App. 142, 130
P.3d 874 (2006), this court rejected an argument that it is always inequitable to let a large
noneconomic damages award stand without allowing an opportunity for discovery.
Waxman, a manufacturer and marketer-distributor of hoses, was sued by Farmer’s for the
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insurance company’s cost of covering a homeowner’s claim for major damage caused by
a broken water supply line. The broken line was labeled with Waxman’s name. Id. at
144. Farmers sent the broken line to Waxman for inspection in April 2003, made
inquiries of Waxman thereafter to which it received no response, and did not obtain a
default judgment against Waxman until June 2004. Id. at 144-45. Waxman successfully
moved to set aside the judgment by presenting evidence that its failure to appear was due
to mistake and arguing that it should be permitted to explore defenses through discovery.
Id. at 146.
This court reversed the setting aside of the judgment, distinguishing the case from
Calhoun because Waxman had been “unable to identify or substantiate a defense despite
having the allegedly defective line in its possession for a number of months.” Id. at 148.
The court observed that to accept Waxman’s argument “as a general rule would mean
that no default judgment could ever stand, because a default judgment by definition is
entered before the discovery phase of litigation begins.” Id. at 147; see also Johnson v.
Cash Store, 116 Wn. App. 833, 847, 68 P.3d 1099 (2003) (rejecting argument that
discovery was necessary to defend where prescient witnesses would be store employees,
so “Cash Store held the keys to its own defense”).
The dissenting justices in Little endorsed the approach followed by Calhoun,
reasoning that “[t]he practical difficulty of defending a claim in the absence of discovery
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may be a relevant consideration in evaluating whether a defendant has presented a
meritorious defense sufficient to support a motion to vacate a default judgment.” 160
Wn.2d at 714 (Madsen, J., concurring/dissenting). They characterize the majority
opinion in Little as rejecting the reasoning of Calhoun in favor of the reasoning in
Waxman. Id. The majority opinion in Little voices no disagreement with Calhoun,
however. As earlier discussed, the majority’s decision can be distinguished from
Calhoun as turning on the fact that King presented “no equitable basis for vacating
judgment.” 160 Wn.2d at 706.
3. Law-based challenge
The third showing addressing the prima facie defense factor is a challenge as a
matter of law, recognized in Shepard and endorsed in Little. It turns the tables on which
party’s evidence is examined for its sufficiency, looking back to the evidence the plaintiff
offered in support of the default judgment. It is the easiest challenge to avoid: the party
moving for a default judgment need only present substantial evidence.
Shepard was a legal malpractice case in which the law firm’s liability turned on
whether a $204,000 judgment against Shepard would have been set aside if its lawyers
had made a timely CR 60(b)(1) motion. 95 Wn. App. at 233. The judgment against
Shepard was obtained by a quadriplegic patient who allegedly sustained injuries from a
fall as he was removed from Shepard’s ambulance. The parties agreed that whether a
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timely motion would have been granted presented an issue of law and submitted it to the
trial court as a matter of partial summary judgment. The trial court ruled that the motion
to set aside the judgment would not have been granted and dismissed the malpractice
claim. The law firm appealed.
One of Shepard’s unsuccessful arguments for vacating the judgment had been that
a timely challenge to the damage amount would have succeeded, because the damages
awarded were excessive. The appeals court observed, citing Calhoun, that “a trial court
has discretion to vacate the damages portion of a default judgment even where no
meritorious defense is established.” Id. at 241. The court expressed concern that
Calhoun had not set forth a standard as to when default damages should be vacated,
however. Id. Looking to case law from other jurisdictions that applied rules similar to
CR 60(b)(1), Shepard adopted a standard applied in Indiana: default damages should be
vacated on “a showing that the evidence before the court granting the award was
insufficient to support the amount of damages.” Id. at 241-42. It observed that this is
analogous to Washington’s standard for setting aside awards of damages from trials. Id.
at 242. “Evidence is substantial,” Shepard observed, “if it is sufficient to persuade a fair-
minded, rational person of the truth of the declared premise.” Id. (citing Price v. Kitsap
Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994)).
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Among the trial court findings that had supported the $204,000 damage amount
was a finding that the patient injured in the fall suffered two or more broken ribs. Id.
Even the patient’s own declaration did not support that finding, however. Id. For that
and other reasons, the Shepard court held that a timely challenge to the damages award
would have been successful. It reversed dismissal of the malpractice claim. Id. at 244-
45.4
While noneconomic damages especially are within the factfinder’s discretion,
“there must be evidence on which the award is based.” Bunch v. King County Dep’t of
Youth Servs., 155 Wn.2d 165, 180, 116 P.3d 381 (2005). A claimant has the burden of
proof on the amount of damages, and must come forward with sufficient evidence to
support a damages award. Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn.
App. 702, 715-16, 315 P.3d 1143 (2013) (citing O’Brien v. Larson, 11 Wn. App. 52, 54,
521 P.2d 228 (1974)). “‘Evidence of damage is sufficient if it affords a reasonable basis
for estimating loss and does not subject the trier of fact to mere speculation or
4 In VanderStoep, Division Two was presented with an argument that Shepard’s
standard—whether the plaintiff’s evidence in support of a default judgment was legally
sufficient—was endorsed by the Supreme Court in Little, and had become the exclusive
standard for determining the first White element. The VanderStoeps relied on the
statement in Little, citing Shepard, that “[t]he amount of damages in a default judgment
must be supported by substantial evidence.” 160 Wn.2d at 704. Division Two rejected
the VanderStoeps’ argument, holding that Little merely recognizes the legal sufficiency
of evidence supporting a default damages award is a minimal requirement. VanderStoep,
200 Wn. App. at 524-25. It observed that nothing in Little abandons long-settled
precedent that a prima facie defense can defeat a legally sufficient claim. We agree.
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conjecture.’” Clayton v. Wilson, 168 Wn.2d 57, 72, 227 P.3d 278 (2010) (quoting State
v. Mark, 36 Wn. App. 428, 434, 675 P.2d 1250 (1984)).
If a case is tried and a legally-insupportable amount of damages is requested or
awarded, the defending party can move for judgment as a matter of law on the damages
issue under CR 50.5 The trial court is required to view the evidence and all inferences in
favor of the nonmoving party, but it would err if it denied the motion and the evidence
and inferences were legally insufficient to support a damages award. Baldwin v. Sisters
of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989) (citing Cherberg
v. Peoples Nat’l Bank, 88 Wn.2d 595, 606, 564 P.2d 1137 (1977)).
Where a defaulting party is able to demonstrate that the evidence presented to
support an award of noneconomic damages is legally insufficient, its defense can fairly
be characterized as conclusive. The more conclusively a defense can be shown, the more
readily the court will vacate the default judgment. Beckett v. Cosby, 73 Wn.2d 825, 828,
440 P.2d 831 (1968). Legal defenses can be conclusive defenses. E.g., Merrell v.
Hamilton Produce Co., 55 Wn.2d 684, 686, 349 P.2d 597 (1960) (surety’s defense to
damages awarded was its statutory right to have claims exceeding the face value of its
bond prorated; “[s]uch a conclusive defense requires little excuse on a prompt motion to
5 CR 50(a)(1) allows judgment as a matter of law “where ‘there is no legally
sufficient evidentiary basis for a reasonable jury to find or have found for that party with
respect to that issue.’” Coogan v. Borg-Warner Morse Tec, Inc., 197 Wn.2d 790, 812,
490 P.3d 200 (2021).
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vacate”); Yeck, 27 Wn.2d at 98-99 (defense that the statute under which damages were
awarded did not apply was a conclusive legal defense, and the court abused its discretion
in refusing to set aside the judgment).
CR 55 and case law construing it provides a further basis for requiring that legally
sufficient evidence support the amount of noneconomic damages awarded by a default
judgment. CR 55(b)(2) governs the entry of default judgment “[w]hen [a]mount
[u]ncertain,” and provides:
If, in order to enable the court to enter judgment or to carry it into effect,
it is necessary to take an account or to determine the amount of damages
. . . , the court may conduct such hearings as are deemed necessary or, when
required by statute, shall have such matters resolved by a jury.
The subsection requires the entry of findings and conclusions. See id. Our Supreme
Court has held that findings and conclusions are required “in part to allow appellate
scrutiny of the trial court’s decision in uncontested cases.” Little, 160 Wn.2d at 706
(citing CR 55(b)(2)). “This protects the integrity of the justice system because it allows
the reviewing court (and others) to evaluate the factual and legal basis for the trial court’s
decision.” Id.
It is well settled that “‘[j]udges and commissioners must not be mere passive
bystanders, blindly accepting a default judgment presented to it. Our rules contemplate
an active role for the trial court when the amount of a default judgment is uncertain.’” Id.
(quoting Lenzi v. Redland Ins. Co., 140 Wn.2d 267, 281, 996 P.2d 603 (2000)). The fact
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that a default judgment was entered without the court independently assessing the
evidence is a factor that weighs in favor of allowing a trial on the merits. Little, 160
Wn.2d at 724 (Madsen, J., concurring/dissenting).
B. The trial court abused its discretion in refusing to vacate the award
of damages
Applying the White elements, the trial court abused its discretion in refusing to
vacate the damages award—not based on Mr. Firl’s fact-based or excuse-based showing
of the prima facie defense factor, but based on the legal insufficiency of the plaintiffs’
evidence.
1. Fact-based showing
As plaintiffs pointed out in responding to Mr. Firl’s motion to vacate, the only
fact-based evidence he offered as a defense to the damages was Mr. Peters’s opinion that,
having reviewed the information provided by the plaintiffs in support of settlement, he
believed a reasonable total damage amount was $66,731.49. The plaintiffs argued that
Mr. Peters’s declaration, viewed in the light most favorable to Mr. Firl, offered only a
speculative opinion. We agree.
On appeal, Mr. Firl advances the plaintiffs’ January 2020 settlement offer of
$335,718.54—$300,000.00 of that being general damages—as another piece of evidence
that $800,000.00 in noneconomic damages alone is excessive. Plaintiffs respond that the
evidence of their offer is inadmissible under ER 408. Mr. Firl disagrees, arguing that he
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is not offering the evidence to establish the amount of the plaintiffs’ damages, but only to
highlight the “discrepancy” between damages representations to the trial court and to
Allstate. Reply Br. of Appellants at 31 (emphasis omitted). Use for this purpose operates
“to prove . . . [the] invalidity of the claim or its amount,” however, which is the
proscribed purpose under ER 408.
As for Mr. Firl’s explanation for his failure to appear, he continues to claim on
appeal that he was not served. But for purposes of weighing the White factors, we rely on
the trial court’s finding that Mr. Firl failed to overcome process server John Knight’s
presumptively correct return of service. The trial court did not find that Mr. Firl was
served, however; both in the court’s oral ruling and its order it found that Mr. Firl simply
fell short of meeting his burden to prove otherwise. The trial court did not find that Mr.
Firl’s failure to appear was willful and the evidence does not support such a finding. Mr.
Firl put plaintiffs’ lawyers in contact with his insurer, apparently cooperated with his
insurer, and attended the hearing to testify in support of setting the default aside. While
his explanation for his failure to appear does not weigh in his favor, it does not support
willfulness.
Turning to whether Mr. Firl acted with due diligence after notice of the default, his
lawyer did not appear until over four months after Mr. Peters was informed of the
lawsuit. The failure to learn of the default until March 26 can be excused. Plaintiffs’
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counsel’s half-truth in reporting only that a lawsuit had been filed would lead Mr. Peters
to reasonably believe it was enough to contact Mr. Firl and obtain assurance that Mr. Firl
would notify him if served. Upon learning of the default, however, it still took counsel
three months to move to vacate the default. Due diligence does not weigh in Mr. Firl’s
favor. Nevertheless, we have no reason to believe the lack of diligence was Mr. Firl’s
fault.
Finally, plaintiffs have not demonstrated that they will suffer a substantial
hardship if the judgment is vacated. The only argument of hardship made in the trial
court was that “[y]ou’ve . . . got witnesses leave, you’ve got problems with memory.”
RP at 15. But the limited evidence the plaintiffs presented in the trial court was all
opinion evidence based on record review. The records could be reviewed anew in a
future trial.
Looking at Mr. Firl’s fact-based showing for setting aside the damages award,
only the absence of any substantial hardship to the plaintiffs weighs in favor of setting
aside the award of noneconomic damages. No abuse of discretion in denying relief is
shown.
2. Excuse-based showing
Mr. Firl also made an excuse-based showing for setting aside the noneconomic
damages award. Although he did not cite Calhoun, his briefing and oral argument
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emphasized that without discovery, he lacked information needed to respond to an
$800,000 noneconomic damage claim. Documentation filed by the plaintiffs in support
of the default judgment did not provide information usable by Mr. Firl. Unlike in
Waxman and Cash Store, the plaintiffs have not demonstrated that information available
to Mr. Firl would have enabled him to respond.
In Calhoun, however, Merritt’s excuse for being unable to present a fact-based
defense was accepted where he was able to make strong showings on the second, third,
and fourth White factors. Merritt admitted to being served, and the court accepted his
explanation that he thought his insurer knew of the lawsuit and would respond,
characterizing Merritt’s failure to act as “a bona fide mistake.” Calhoun, 46 Wn. App. at
621. The court observed that Merritt “acted promptly” in moving to vacate the default.
Id. at 622. Merritt’s lawyer evidently appeared in Calhoun’s action within days of
Merritt’s insurer learning of the default, and he moved to vacate the judgment a month
later. Id. at 618. Nothing in the record indicated that Calhoun had been prejudiced in
asserting his damage claim by the lapse of time. Id. at 622.
Here, by contrast, Mr. Firl did not make a strong showing of an excusable failure
to appear or due diligence. Again, no abuse of discretion in denying relief on this basis is
shown.
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3. Law-based challenge
Finally, Mr. Firl’s motion asked the trial court to set aside the $800,000 award of
noneconomic damages under Shepard. The Shepard standard asks whether the evidence
before the court granting the award was insufficient to support the amount of damages.
“Appellate and trial courts are equally competent to review the record for legal
sufficiency,” so even if the trial court intended, implicitly, to reject Mr. Firl’s challenge to
the damage amount, “appellate courts owe no deference to trial courts’ conclusions” on
that score. Coogan v. Borg-Warner Morse Tec, Inc., 197 Wn.2d 790, 812, 490 P.3d 200
(2021). We review the evidence and reasonable inferences in the light most favorable to
the judgment. Id.
No substantial evidence supports R.A.C.’s and Ms. Evans’s noneconomic damage
awards. The only evidence presented in support of the $800,000.00 noneconomic
damage award was evidence that R.A.C. incurred $26,067.79 in medical expenses, that
the toddler was a candidate for scar revision surgery at a cost of $8,500.00 to $10,000.00,
and skeletal hearsay information about six settlements allegedly negotiated by R.A.C.’s
lawyers for other clients with dog bite injuries.6 Although plaintiffs’ briefing in the trial
6This might have been partially inadvertent. Almost none of the exhibits
purportedly attached to the plaintiffs’ supporting declarations appear in the record on
appeal. We have confirmed that they are not present in the trial court record. A
declaration of Madison Evans is also referred to in plaintiffs’ briefing but no such
declaration was ever filed with the court.
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court characterized the six settlements as “Jury Verdicts,” they are characterized in
counsel’s declaration as settlements. Compare CP 90 and 96 with CP at 28-29, ¶¶ 5-10.
The information about the settlements is too limited to be useful and there is no
identifying information that would enable Mr. Firl or the trial court to confirm or
investigate them. The trial court was provided with none of the underlying medical
records and no photographs of R.A.C.’s injuries. Because no hearing was held, the
shortcomings in the written submissions were never compensated for by testimony.
No witness provided an explanation why $750,000 and $50,000 would be
reasonable measures of R.A.C.’s and Ms. Evans’s noneconomic damages. Those figures
appear only in the findings, conclusions, and judgment that plaintiffs proposed for entry
by the court. A declaration from Ms. Ramsey offers allegations and conclusory
statements in support of her opinion that “the plaintiff’s damages likely fall at the high-
end range of settlements and/or jury verdicts researched.” CP at 29. But her speculative
opinion on reasonable damages is just as inadequate as Mr. Peters’s opinion, which
plaintiffs persuade us to reject.
The application of the White considerations “is not a mechanical test; whether or
not a default judgment should be set aside is a matter of equity.” Little, 160 Wn.2d at
704 (citing White, 73 Wn.2d at 351). It is not difficult to present legally sufficient
evidence of bona fide noneconomic damages in an uncontested default judgment hearing.
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Plaintiffs who do not make that effort are not in a position to argue that the equities favor
them, even where a defendant is unable to make a strong showing of a reason for failing
to appear or due diligence. Mr. Firl did not willfully fail to appear, and the shortcoming
in diligence was not extreme nor is it fairly imputed to him. Given a conclusive defense
of legally insufficient supporting evidence, it was an abuse of discretion not to vacate the
award of noneconomic damages.
We affirm the judgment as to liability, the $34,567.54 awarded as special
damages, and the $701.95 awarded as statutory costs. We reverse the award of
noneconomic damages and remand for a trial on that element of the plaintiffs’ damages.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO VACATE THE
JUDGMENT AS VOID FOR LACK OF PERSONAL JURISDICTION
Under CR 60(b)(5), a court may relieve a party from a final judgment if the
judgment is void. A default judgment against a party is void if the court did not have
personal jurisdiction over that party. Delex Inc. v. Sukhoi Civ. Aircraft Co., 193 Wn.
App. 464, 468, 372 P.3d 797 (2016). A court does not have personal jurisdiction over a
party if service of the summons and complaint was improper. Id.
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Under Washington law, the plaintiff bears the initial burden of proving a prima
facie case of sufficient service. Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P.3d
1155 (2014). An affidavit of service that is regular in form and substance is
presumptively correct. Leen v. Demopolis, 62 Wn. App. 473, 478, 815 P.2d 269 (1991)
(citing Lee v. W. Processing Co. Inc., 35 Wn. App. 466, 469, 667 P.2d 638 (1983)). The
return is subject to attack, however, and may be discredited by competent evidence. Lee,
35 Wn. App. at 469 (citing Dubois v. W. States Inv. Corp., 180 Wash. 259, 39 P.2d 372
(1934)). When the plaintiff meets its burden of proving a prima facie case of sufficient
service (by the presumption or otherwise), the burden is on the person attacking the
service to show by clear and convincing proof that the service was improper. See Leen,
62 Wn. App. at 478 (citing Allen v. Starr, 104 Wash. 246, 247, 176 P. 2 (1918); McHugh
v. Conner, 68 Wash. 229, 231, 122 P. 1018 (1912)). Evidence is “clear and convincing”
when it shows the ultimate fact in issue to be highly probable. Dalton v. State, 130 Wn.
App. 653, 666, 124 P.3d 305 (2005). Whether service of process was proper, such that
the exercise of personal jurisdiction was appropriate, is a question of law reviewable de
novo. Sutey v. T26 Corp., 13 Wn. App. 2d 737, 749, 466 P.3d 1096 (2020).
When a motion to set aside a default judgment presents the court with conflicting
affidavits addressing whether service occurred, a triable issue of fact is presented. Roth
v. Nash, 19 Wn.2d 731, 732, 144 P.2d 271 (1943); Woodruff v. Spence, 76 Wn. App. 207,
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210, 883 P.2d 936 (1994). We conduct substantial evidence review of a trial court’s
findings on disputed facts that bear on whether process was served. Sutey, 13 Wn. App.
2d at 750. “‘Substantial evidence’ is ‘a quantum of evidence sufficient to persuade a
rational fair-minded person the premise is true.’” Id. (quoting Sunnyside Valley Irrig.
Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)). We cannot review credibility
determinations on appeal. Id. (citing Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d
125 (2003)).
The trial court did not enter written findings articulating its reasons for concluding
that Mr. Firl failed to rebut the presumptively correct return of service. But the court’s
oral ruling announced findings, including that Mr. Firl appeared to the court to be
someone who could be mistaken for 27 years old. The court also announced that Mr.
Firl’s testimony denying he was served was not only not clear and convincing, it did not
preponderate over the sworn return of John Knight, the process server, that he personally
served Mr. Firl.
Mr. Firl’s presence and the court’s ability to observe him qualifies as substantial
evidence supporting its finding that Mr. Firl could be mistaken for 27 years old. Mr.
Knight’s presumptively correct return of service (whose description of the person he
served apparently fit Mr. Firl in every respect except for Mr. Firl’s age) is substantial
evidence that service of process took place as attested.
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Additionally, Mr. Firl’s failure to produce evidence corroborating his alleged
absence from his residence at the time of service would support an adverse inference.
“When a party fails to produce relevant evidence within its control without satisfactory
explanation, the trial court is permitted to draw the inference that the evidence would be
unfavorable to the nonproducing party.” Northwick v. Long, 192 Wn. App. 256, 264, 364
P.3d 1067 (2015) (citing Lynott v. Nat’l Union Fire Ins. Co., 123 Wn.2d 678, 689, 871
P.2d 146 (1994)).
Finally, Mr. Firl suggests the trial court applied the wrong standard to his burden
of rebutting the return of service because when announcing its decision, the court said it
was unable to find that Mr. Firl “for sure wasn’t the one—didn’t get the service.” RP at
30-31 (emphasis added).
The fact that Mr. Firl’s burden of overcoming the return of service was by clear
and convincing evidence was briefed by the parties and argued during the hearing. The
trial court commented itself on the clear and convincing standard. See RP at 29 (“I’m not
convinced by a preponderance of the evidence, not to mention clear and convincing, that
he didn’t get it.”). In entering its written order, the court did not say that Mr. Firl failed
to disprove service by a “for sure” burden of proof, it said he failed to disprove service
“by any burden of proof.” CP at 123.
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In the context of the briefing and argument, the court’s “for sure” reference is
most reasonably seen as unfortunate vernacular. A court’s written decision, not any
different oral ruling, is considered its ultimate understanding of the issue presented. State
v. Dailey, 93 Wn.2d 454, 459, 610 P.2d 357 (1980).
Mr. Firl fails to demonstrate that the court erred in rejecting his argument that the
judgment was void.
III. AN ARGUMENT THAT MR. FIRL HAD APPEARED WITHIN THE MEANING OF CR 55
WAS NOT RAISED IN THE TRIAL COURT, AND FAILS
Mr. Firl’s second assignment of error conflates two bases for challenging a default
judgment. The first is an argument that a defendant who has appeared in a lawsuit is
entitled to notice of motions for default and default judgment. The second is an argument
that acts of concealment that prevent a defendant from appearing and responding can
support vacating the judgment under CR 60(b)(1) or (4) and the White criteria. Only the
first is a true “appearance” argument.
CR 55(a)(3) provides that “[a]ny party who has appeared in the action for any
purpose shall be served with a written notice of motion for default . . . at least 5 days
before the hearing.” A defendant appears in an action and is thereby entitled to notice
when he “answers, demurs, makes any application for an order therein, or gives the
plaintiff written notice of . . . her appearance.” RCW 4.28.210; see also CR 4(a)(3) (“A
notice of appearance, if made, shall be in writing, shall be signed by the defendant or the
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defendant’s attorney, and shall be served upon the person whose name is signed on the
summons.”). If a default judgment is rendered against a party who was entitled to notice
but did not receive it, the judgment will be set aside. Morin, 160 Wn.2d at 749 (citing
Tiffin v. Hendricks, 44 Wn.2d 837, 847, 271 P.2d 683 (1954)).
In Morin, our Supreme Court accepted review of three decisions of this court that
vacated default judgments on the basis that the defendants’ substantial compliance with
the appearance requirement had given them a right to notice of the plaintiffs’ motions for
an order of default. The Supreme Court was concerned that this court was sometimes
applying a “doctrine of informal appearance” that failed to measure substantial
compliance against the fact that “litigation is a formal process.” Id. It emphasized that
“where we have applied the substantial compliance doctrine, the defendant’s relevant
conduct occurred after litigation was commenced.” Id. at 755 (emphasis added). This is
consistent with the impossibility of “appearing” in an action that does not yet exist.
“[P]relitigation communication alone is insufficient” to constitute an appearance. Id. at
749 (emphasis added). Were it otherwise, the Supreme Court observed, any claims
representative to a potential dispute could simply write a letter conveying an intent to
contest litigation and then “ignore the summons and complaint . . . and wait for the notice
of default judgment before deciding whether a defense is worth pursuing.” Id. at 757.
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Addressing postlitigation contacts, the Morin court clarified that a defendant
served with a summons and complaint “must do more than show intent to defend; they
must in some way appear and acknowledge the jurisdiction of the court after they are
served and litigation commences.” Id. at 749. “Parties must take some action
acknowledging that the dispute is in court before they are entitled to a notice of default
judgment hearing.” Id. at 757.
Mr. Firl complains that in ruling on his motion, the trial court failed to address
whether, having appeared, he was entitled to notice. We see no suggestion in Mr. Firl’s
motion that he claimed to have appeared, however. His motion spoke only of his “failure
to appear.” See CP at 58.
Mr. Firl has no viable argument that he had appeared and was entitled to notice.
Mr. Peters’s prelitigation contacts do not count, because there was not yet a lawsuit in
which to appear. His and defense counsel’s postlitigation contacts do not count because
they did not “acknowledge that a dispute exists in court” before the plaintiffs moved for
default and default judgment. Morin, 160 Wn.2d at 756. The trial court understandably
did not rule on an argument that Mr. Firl had appeared and was entitled to notice.7
7 Mr. Firl’s second assignment of error also suggests that Morin announced a new
basis on which a party will be deemed to have “appeared”: the party will be deemed to
have appeared if and when it is the victim of inequitable concealment by its adversary.
We disagree.
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No. 38364-4-III
Evans v. Firl
38
We affirm the judgment as to liability, the $34,567.54 awarded as special
damages, and the $701.95 awarded as statutory costs. We reverse the award of
noneconomic damages and remand for a trial on that element of the plaintiffs’ damages.
Siddoway, C.J.
WE CONCUR:
Fearing, J.
Lawrence-Berrey, J.
The discussion in Morin on which Mr. Firl relies had to do with the remand of one
of the three appeals consolidated in Morin, Gutz v. Johnson. In Gutz, the Court of
Appeals not only found an “informal appearance” but also concluded that “the Johnsons
satisfied their evidentiary burden under CR 60(b).” 128 Wn. App. at 921 It was in
connection with remanding Gutz because of the viable CR 60(b)(1) basis for setting aside
the judgment that the Supreme Court discussed the fact that Gutz representatives had
spoken with an Allstate adjuster about settlement without disclosing they had already
filed suit and effected service, and later, that they had obtained a default order—
something the Supreme Court said “appears to be an inequitable attempt to conceal the
existence of the litigation.” Morin, 160 Wn.2d at 759.
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