Old Republic National Title Insurance v. Law Office of Robert E. Brandt, PLLC
Old Republic National Title Insurance v. Law Office of Robert E. Brandt, PLLC
Opinion of the Court
¶2 Respondent Brandt filed a third party complaint against the Andersons on October 24, 2005. On November 18 or 21, 2005 (the parties disagree as to the exact date), the Andersons’ attorney, James Ihnot, spoke to Brandt’s attorneys by telephone. Ihnot says that he told Brandt’s attorneys that he was representing the Andersons in this action; Brandt’s attorneys deny this. The record shows that Brandt’s attorneys filed a notice for hearing in this action dated November 22, 2005, addressed to “THE CLERK OF THE COURT and to all other parties listed on Page 2.” On page 2, the notice listed Ihnot as the Andersons’ attorney and also listed the other parties and their attorneys. On November 14, 2005, William Anderson received service of a subpoena duces tecum for his deposition scheduled for December 6. Neither Anderson nor Ihnot appeared for the deposition. Ihnot says that he did not receive notice of the deposition, although he notes that Brandt’s attorneys attempted to telephone him on December 5.
¶3 On December 7, 2005, without giving notice to the Andersons or Ihnot, Brandt’s attorneys obtained an order of default and default judgment against the Andersons.
¶5 CR 4(a)(3) provides that if a defendant files a notice of appearance, it should be in writing, signed by the defendant or his attorney, and served on whoever signed the summons. CR 55 and 60 govern default judgments and vacation of such judgments. In accordance with the liberal policy toward vacating default judgments, Washington courts have construed the concept of appearance broadly in this context.
required defendants seeking to set aside a default judgment to be prepared to establish that they actually appeared or substantially complied with the appearance requirements and were thus entitled to notice.[5 ]
¶6 In Seek Systems, Inc. v. Lincoln MovingIGlobal Van Lines, Inc.,
can constitute a notice of appearance if the caller is one who could appear for the defendant, the caller recognizes that the case is in court, and the caller manifests an intent to defend.[8 ]
Considering the facts of this case, we conclude that Ihnot’s telephone conversation with Brandt’s attorneys constituted an appearance. Brandt’s attorneys knew that Ihnot represented the Andersons in at least one other action. Ihnot asserts that during the conversation, he informed Brandt’s attorneys that he was representing the Andersons in this action. This assertion is supported by the fact that soon after this conversation, Brandt’s attorneys filed the notice of hearing listing Ihnot as the Andersons’ attorney in this action and served the notice on Ihnot.
¶7 When viewed together, the telephone call and notice of hearing indicate that Ihnot informed Brandt’s attorneys that he was representing the Andersons in this action, and that Brandt’s attorneys acknowledged that Ihnot was the Andersons’ attorney in this action. And the fact that Brandt’s attorneys sought a default judgment on the basis of failure to appear after they had already acknowledged Ihnot as the Andersons’ attorney in this action would make enforcing the default judgment inequitable. The Andersons were entitled to vacate the default judgment as a matter of law, and the trial court erred in denying the motion.
¶8 Reversed and remanded.
Reconsideration denied January 4, 2008.
Review denied at 164 Wn.2d 1022 (2008).
White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968).
Morin v. Burris, 160 Wn.2d 745, 755, 161 P.3d 956 (2007); see also White, 73 Wn.2d at 351.
White, 73 Wn.2d at 351-52.
Colacurcio v. Burger, 110 Wn. App. 488, 495, 41 P.3d 506 (2002).
Morin, 160 Wn.2d at 755.
Morin, 160 Wn.2d at 749; see also Colacurcio, 110 Wn. App. at 495.
63 Wn. App. 266, 818 P.2d 618 (1991).
Seek Sys., 63 Wn. App. at 270 (citations omitted).
Reference
- Full Case Name
- Old Republic National Title Insurance Company v. Law Office of Robert E. Brandt, PLLC, William Anderson
- Cited By
- 7 cases
- Status
- Published