Boss Construction, Inc. v. Hawk's Superior Rock, Inc.
49273-3
| Wash. Ct. App. | Nov 21, 2017Background
- Boss Construction sued Hawk’s Superior for breach of contract alleging supplied rock/gravel failed to meet WSDOT specs; summary judgment granted for Boss for $241,708.33 plus costs and fees.
- Hawk’s Superior had answered the complaint but took no further action for ~15 months; Boss moved for summary judgment and served papers to the address on file for Hawk’s counsel.
- Hawk’s counsel, C. Craig Holley, had moved offices and updated the bar association and USPS but did not notify the court or opposing counsel; he did not receive the summary judgment papers and did not appear at the hearing.
- After judgment entered, Hawk’s Superior moved under CR 60(b)(1) seeking relief for mistake/inadvertence/irregularity; the trial court denied relief, finding counsel’s failure to update the court was not inadvertent or excusable.
- Hawk’s Superior moved for reconsideration, submitted additional evidence (including WSDOT communications); the court considered further submissions from Boss and denied reconsideration.
- The Court of Appeals affirmed, concluding Hawk’s Superior failed to satisfy the White factors (primarily: strong defense and excusable neglect/mistake) and the trial court did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument (Boss) | Defendant's Argument (Hawk’s Superior) | Held |
|---|---|---|---|
| Whether the trial court was required to make on-record findings as to each White v. Holm factor when denying CR 60(b)(1) relief | No specific on-record findings are required; judge need not recite each White factor verbatim | Trial court abused discretion by not addressing the four White factors on the record | Court: No; no authority compels specific on-record findings for each White factor; no abuse of discretion |
| Whether Hawk’s counsel’s failure to update court/opposing counsel of address constituted mistake, inadvertence, or excusable neglect under CR 60(b)(1) | Service to address on file was proper; counsel’s failure to notify the court was inexcusable | Counsel’s change of office, health issues, and updating the bar/USPS show excusable neglect/mistake/inadvertence | Court: Counsel’s omission was not mistake or inadvertence and did not constitute excusable neglect; CR 60(b)(1) relief denied |
| Whether Hawk’s Superior demonstrated a strong or at least prima facie defense to the breach claim (White factor 1) | Boss argued evidence (including quote warranting DOT specs and WSDOT emails showing noncompliance) supported judgment | Hawk’s provided limited affidavit and WSDOT email suggesting compliance; argued new evidence on reconsideration showed a defense | Court: At best a prima facie defense; not strong/virtually conclusive, so the failure-to-appear factors weighed against vacating judgment |
| Whether the trial court abused discretion in denying reconsideration after considering new evidence | Trial court properly weighed new evidence and Boss’s rebuttal; no abuse | Hawk’s argued court failed to apply White factors when evaluating reconsideration evidence | Court: No abuse; court considered additional evidence, concluded it still did not satisfy primary White factors |
Key Cases Cited
- White v. Holm, 73 Wn.2d 348 (1968) (establishes four-factor test for vacating default/judgment under CR 60(b)(1))
- TMT Bear Creek Shopping Ctr., Inc. v. PETCO Animal Supplies, Inc., 140 Wn. App. 191 (2007) (internal office calendaring breakdown is not excusable neglect)
- Prest v. American Bankers Life Assur. Co., 79 Wn. App. 93 (1995) (mislaid documents while counsel out of town not excusable neglect)
- Norton v. Brown, 99 Wn. App. 118 (2000) (mistake may justify relief where genuine misunderstanding exists about who will defend the suit)
- Akhavuz v. Moody, 178 Wn. App. 526 (2014) (no CR 60(b)(1) mistake where there was no misunderstanding about responsibility to defend)
- Ha v. Signal Elec., Inc., 182 Wn. App. 436 (2014) (breakdown of internal office procedures does not constitute excusable neglect)