_ FILED COURT OF APPEALS DV I STATE OF WASHINGTON

2018 SEP 10 AM 8:51

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARGEAUX RABBAGE and ) CHRIS BAJUK, ) No. 77053-5-I ) Appellants, ) DIVISION ONE ) v. ) ) THERESA LORELLA, individually and ) on behalf of the marital community of ) THERESA LORELLA and JOHN DOE ) PUBLISHED OPINION LORELLA, and MICHAEL V. FANCHER,) individually and on behalf of the marital ) FILED: September 10, 2018 community of MICHAEL V. FANCHER ) and JANE DOE FANCHER d/b/a ) SEATTLE DIVORCE SERVICES, ) ) Respondents. ) )

BECKER, J. — This is an appeal from an order dismissing a legal

malpractice claim on summary judgment. There are material issues of fact as to

whether the omissions of a successor attorney constituted an independent

superseding cause of the plaintiffs damages. We reverse.

FACTS

1. Plaintiff Rabbage obtains a decree of dissolution by default

Margeaux Rabbage, appellant, married Niall Kennedy in July 2009. They

separated in December 2013. In September 2014, Rabbage, representing No. 77053-5-1/2

• V kj heraelf;filed- 'Obtitiori to diSiOlve the Marriage. The'couple had no children.

The petition itemized property and debts and asked that the home in Tacoma be

sold and the proceeds split equally after the mortgage was paid off. Rabbage

made a number of attempts to serve Kennedy. Although Rabbage did not

achieve formal service, Kennedy knew about the petition. He filed a response

pro se in December 2014 and asked that notice of further proceedings be sent to

him at a stated address.

In February 2015, Rabbage retained Seattle Divorce Services to represent

her in moving forward with the dissolution. Respondent Theresa Lorella, an

attorney with Seattle Divorce Services, formally appeared for Rabbage on April 1,

2015. Lorella and Kennedy attended a status conference in June 2015. The

court ordered that the case could not proceed without a record of valid service on

Kennedy. Lorella filed and served an amended summons and petition on July 9,

2015. Kennedy does not dispute the validity of this service. In personam

jurisdiction is uncontested.

Kennedy did not respond to the amended summons and petition. In

November 2015, Lorella prepared a motion on behalf of Rabbage for an order of

default. Lorella did not note the motion up for a court hearing. Instead, she sent

a copy of the motion and proposed final decree to Kennedy with a cover letter

advising him that she planned to present them a few days later for entry by the

superior court "via ex parte."

On November 24, 2015, a superior court commissioner entered the

proposed default dissolution decree that dissolved the marriage and divided the

2 No. 77053-5-1/3

property. The decree awarded the house in Tacoma to Rabbage. Kennedy was

to convey his interest in the house to Rabbage by quitclaim deed or else the

court would appoint a special master to sign a quitclaim deed.

Effective December 3, 2015, LoreIla withdrew as Rabbage's attorney.

On December 17, 2015, Rabbage married Chris Bajuk.

2. Rabbaoe's ex-husband moves successfully to vacate the default decree

Rabbage retained a real estate attorney, David Britton, to assist with

conveyance of the Tacoma property. Britton filed a notice of appearance in the

dissolution cause number. On January 12, 2016, he moved on behalf of

Rabbage for appointment of a special master to quitclaim the Tacoma property to

Rabbage.

On February 5, 2016, Kennedy—now represented by counsel—filed a

motion to vacate the default decree of dissolution under CR 60(b)(1). He

requested a restraining order to prevent Rabbage from disposing of the property

unilaterally.

A party who has appeared in an action "shall be served with a written

notice of motion for default and the supporting affidavit at least 5 days before the

hearing on the motion." CR 55(a)(3). If no such notice is received, the party "is

generally entitled to have judgment set aside without further inquiry." Morin v.

Burns,

, 754,

(2007). No showing of a meritorious

defense is necessary. Tiffin v. Hendricks,

,

(1954). Kennedy asserted that he appeared in the action by personally attending

the status conference in June 2015. He argued that he was entitled to have the

3 No. 77053-5-1/4

decree set aside as a matter of right because he did not receive notice that a

motion for default was scheduled for a hearing. He also argued that even if his

attendance at the status conference did not constitute an appearance, he was

entitled to have the decree set aside on the grounds of mistake, inadvertence,

and excusable neglect. Kennedy declared that his failure to respond to the

amended summons and complaint was due to medical problems he was

experiencing as a disabled veteran.

On February 10, Britton submitted a brief titled "Petitioner's Reply in

Support of Motion for Appointment of Special Master." Despite the title, this brief

also generally stated Rabbage's opposition to the motion to vacate the decree.

The brief did not mention that Rabbage had already married someone else.

Judge Judith Ramseyer heard Kennedy's motion. On February 29, 2016,

she ruled that Kennedy's failure to respond due to his medical condition was

inadvertence and excusable neglect under CR 60(b)(1). Unaware that Rabbage

had married Bajuk, Judge Ramseyer set aside the dissolution decree in its

entirety. See CR 55(c)(1). The effect was to leave Rabbage married to both

Kennedy and Bajuk. Rabbage did not move for reconsideration. She moved

ahead on the new trial schedule established by Judge Ramseyer and obtained a

second decree of dissolution of her marriage to Kennedy. The second decree,

entered August 31, 2016, awarded the Tacoma house to Kennedy.

3. Rabbage files a malpractice suit against Lorella

On March 30, 2017, Rabbage brought this malpractice cause of action

against Lorella. She alleged that Lorella violated the standard of care by failing

4 No. 77053-5-1/5

to serve Kennedy in compliance with CR 55(a)(3) and as a result, the default

decree was "null and void." She further alleged that LoreIla should have realized

that the decree was void and should have advised her of the error before she

married Bajuk. Rabbage claimed that the vacation of the decree caused her to

suffer extreme emotional distress due to concerns about bigamy and the delay in

completing the dissolution of her marriage with Kennedy. She also claimed as

damages the expense of hiring new counsel to complete the dissolution and her

loss of the more favorable division of marital property as ordered in the default

decree.

LoreIla moved for summary judgment. For the purpose of summary

judgment only, Lore!la's motion accepted that she was negligent. The only

element of malpractice she put at issue was causation. In order for an attorney's

negligent conduct to constitute legal malpractice, the breach of duty must be a

proximate cause of the resulting injury. Halvorsen v. Ferguson,

,

(1986), review denied,

(1987).

Proximate cause is usually the province of the jury, but the court can determine

proximate cause as a matter of law if reasonable minds could not differ. Smith v.

Preston Gates Ellis, LLP,

,

(2006), review

denied,

(2007).

LoreIla argued that Britton, as successor counsel, was an intervening and

superseding cause of Rabbage's distress. She alleged that when responding to

Kennedy's motion to vacate, Britton negligently and unforeseeably failed to take

steps that would have prevented the outcome of Rabbage being married to two

5 No. 77053-5-1/6

men at the same time, including the obvious step of alerting the court and

opposing counsel that Rabbage had remarried.

The trial court granted Lorella's motion and dismissed the lawsuit.

Rabbage appeals.

This court reviews summary judgment de novo. Lavigne v. Chase,

Haskell, Hayes & Kalamon, P.S.,

,

(2002).

"Summary judgment is appropriate when there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law." Lavigne,

. The facts and resulting reasonable inferences are

considered in the light most favorable to the nonmoving party. Lavigne,

.

4. Rabbage incorrectly argues that Britton, the successor attorney, could not

have prevented the damage caused by vacation of the default iudgment

In opposition to Lorella's argument that her own negligence was

superseded by Britton's, Rabbage contends there was nothing Britton could have

done to achieve a better outcome. Rabbage argues that vacation of the default

decree was the inevitable result of Lorella's negligence. The question is whether

a reasonable judge in Judge Ramseyer's position would have refused to vacate

the dissolution of the marriage if she had been informed that Rabbage was

remarried. This is a question of cause in fact, but because it requires legal

analysis, it is appropriately decided as a matter of law, irrespective of whether the

facts are undisputed. Daugert v. Pappas,

,

(1985).

6 No. 77053-5-1/7

(a) The default decree of dissolution was not void.

Rabbage first asserts that Judge Ramseyer had no option except to

vacate the entire decree because it was void ab initio.

Void judgments lack legal effect. In re Marriage of Leslie,

,

(1989). A court has a nondiscretionary duty to vacate a

void judgment. In re Marriage of Markowski,

,

(1988). If the default decree was void, Judge Ramseyer would not have had

the power to salvage any part of it. If the default decree was void, the damage to

Rabbage was already done before Britton became her attorney.

A party who does not receive notice of a hearing scheduled to consider a

motion for default when such notice is required by CR 55(a)(3)"is generally

entitled to have judgment set aside without further inquiry." Morin,

. But the right to have a judgment set aside does not necessarily mean that

the judgment is void. A void judgment exists if the issuing court lacks personal

jurisdiction over the party or subject matter jurisdiction over the claim. Marley v.

Dep't of Labor & Indus.,

,

(1994). The superior

court commissioner who entered the default decree dissolving the marriage

between Rabbage and Kennedy had personal jurisdiction over Kennedy by virtue

of service of the amended summons and complaint. The commissioner had

subject matter jurisdiction by virtue of the superior court's constitutional authority

to hear divorce matters. WASH. CONST. art. IV, § 6; In re Marriage of Buecking,

,

(2013), cert. denied,

(2014).

7 No. 77053-5-1/8

Rabbage insists the default judgment was void, relying on Servatron. Inc.

v. Intelligent Wireless Prods., Inc.,

,

(2015).

The defendants in Servatron were personally served with a summons and

complaint. Servatron,

. They retained an attorney who

engaged in settlement negotiations but did not file a formal notice of appearance.

Servatron,

. When the negotiations broke down, the

plaintiffs obtained a default judgment without giving notice. Servatron,

. More than a year later, the defendants moved to vacate the

judgment. Servatron,

. The trial court denied the motion as

untimely under CR 60's one-year time limit. Servatron,

.

The appellate court reversed, holding that the defendants had informally

appeared such that under Morin, they were entitled to have the default set aside

as a matter of right because of the lack of notice. Servatron,

. The court further held that the default judgment was "void" due to the lack

of notice, and therefore it could be vacated "at any time." Servatron,

, citing Allstate Ins. Co. v. Khani,

,

(1994); Ahten v. Barnes,

,

(2010);

Brenner v. Port of Bellingham,

,

(1989); and

Markowski,

.

We must respectfully disagree with Servatron's holding that a default

judgment is void if it is entered without the notice required by CR 55. Appellate

courts "must use caution when asked to characterize an issue as 'jurisdictional'

or a judgment as 'void." Cole v. Harveyland, LLC,

, 258

8 No. 77053-5-1/

(2011). "Where the court has personal and subject matter jurisdiction, a

procedural irregularity renders a judgment voidable," not void. Chai v. Kong,

,

(2004). The cases cited by Servatron to support

its holding that the judgment could be vacated "at any time"--Khani, Ahten,

Brenner, and Markowski—all involved judgments that were void because the

issuing court lacked personal jurisdiction. The default judgment in Servatron was

not void. The court that entered it had both personal and subject matter

jurisdiction.

The same criticism applies to In re Marriage of Daley,

,

(1994), wherein the court stated that a dissolution decree had to

be vacated as "void" due to the wife's failure to give her husband, who had

formally appeared in the matter, five days' notice before the entry of a default. If

Daley had been written more cautiously, it would have used the term "voidable"

rather than "void."

In holding that a default judgment is necessarily void if entered without

proper notice to the defendant, the Servatron court acknowledged but declined to

follow two "aging" Supreme Court cases that characterized such judgments as

"voidable" rather than void. Servatron,

, citing Person v.

Plough,

,

(1933), and Chehalis Coal Co. v.

Laisure, 97

(1917). The Servatron court reasoned

that the two older cases were displaced by Morin. But Morin does not use the

terms "void" and "voidable." Morin does not hold that the court that entered the

default judgment lacked personal or subject matter jurisdiction, and it does not

9 No. 77053-5-1/10

overrule Person or Chehalis Coal. Those two cases should be followed, not

disregarded. Not only are they Supreme Court cases that have not been

overruled, they correctly recognize that only a jurisdictional defect can make a

judgment void.

In personam jurisdiction is obtained upon the initial service of

process. Mid-City Materials, Inc. v. Heater Beaters Custom Fireplaces,

,

(1984). A plaintiffs failure to give a defendant

proper notice of a default judgment does not destroy in personam jurisdiction that

was established over the defendant by proper initial service of a summons and

complaint. It simply means that "the court has no authority to enter a default

judgment because the defendant is not in default." Tiffin,

.

The use of the term "void" in Servatron, Daley, and a few similar cases1 is

incautious and should not be repeated because it leads to analytical error. A

failure to provide notice of default proceedings when required is generally

regarded as "a serious procedural error" that justifies vacation, not as a

jurisdictional flaw. Gage v. Boeing Co.,

,

,

quoting 10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL

PRACTICE AND PROCEDURE § 2687, at 438(2d ed. 1983); 6 JAMES

WM. MOORE, MOORE'S FEDERAL PRACTICE IR 55.05[3], at 55-27(2d ed. 1988),

1 For example, Servatron has already been cited for the erroneous proposition that "once a default order is set aside for lack of notice, any default judgment relying on that order is void." Azpitarte v. Biscay, No. 72749-4-1, slip op. at 5(Wash. Ct. App. June 27, 2016)(unpublished), http://www.courts.wa.g ov/opinions/pdf/727494.pdf. 10 No. 77053-5-1/11

review denied,

(1989). The plain language of CR 55(a)speaks

of motion notice, not original process.

A judgment that is void due to lack of jurisdiction can be vacated at any

time, but a motion to vacate any other type of judgment must be brought within

the time constraints of CR 60. Chai,

. Under CR 60(b),

the time limit is "within a reasonable time and for reasons (1),(2) and (3) not

more than 1 year after the judgment, order, or proceeding was entered."

Imposing a time limit to seek relief from a voidable default judgment is not unfair.

A party who has been served with original process and has appeared in the

action knows that the formal process of litigation has begun and is in a position to

monitor it, in contrast to a person who has not been served with original process.

We hold as a matter of law that the default decree of dissolution in this

case was not void. Kennedy's motion to vacate it was timely. If Britton had

advised the court of Rabbage's remarriage, Judge Ramseyer could have

considered the option of setting aside only the property distribution aspects of the

decree.

(b)The default decree of dissolution could have been bifurcated.

Rabbage argues, though, that the option of setting aside only part of the

decree was foreclosed by In re Marriage of Little,

,

(1981). In Little, the court held that at the time a superior court enters a

decree of dissolution, it must rule on all ancillary matters. Little,

.

The dissolution of a marriage ordinarily should not be bifurcated from issues such

as parenting and distribution of property. Little,

. But if no one

11 No. 77053-5-1/12

objects to bifurcation in the trial court, no relief need be granted on appeal. The

failure to object to bifurcation constitutes a waiver. Little,

.

Rabbage contends that Kennedy would have objected due to his generally

uncooperative attitude, and his objection would have tied the hands of Judge

Ramseyer so that she had to vacate all of the decree or none of it.

Little provides no reason to hold that a trial court needs the permission of

both parties to bifurcate a motion to vacate a decree after it is entered. In these

circumstances, where vacating the dissolution of the marriage puts a party in the

position of having two spouses, the rationale for bifurcation is compelling. The

avoidance of bigamy is an important public policy. In re the Marriage of Pratt,

,

(1983). In other contexts, a court has discretion

to give separate consideration to claims within a default judgment, for example

by vacating damages while leaving intact a judgment as to liability. Shepard

Ambulance, Inc. v. HeiseII, Fetterman, Martin, Todd & Hokanson,

,

(1999), review denied,

(2000); Fowler

v. Johnson,

,

(2012).

We are confident that Judge Ramseyer, or any reasonable judge in her

position, would have exercised her discretion to leave intact the portion of the

decree that dissolved the Rabbage-Kennedy marriage if Britton had asked her to.

We therefore conclude the outcome of the motion to vacate likely would have

been different if Britton, the successor attorney, had informed Judge Ramseyer

that Rabbage was married to Bajuk.

12 No. 77053-5-1/13

5. The record does not conclusively prove that Britton's alleged negligence

superseded Lorella's

While we hold LoreIla has a plausible argument that Britton could have

prevented Rabbage's emotional distress, this does not necessarily mean that

Britton's negligence was the sole and superseding proximate cause of

Rabbage's injuries.

Above, we determined as a matter of law that Judge Ramseyer would not

have vacated the marriage dissolution if she had known of Rabbage's

remarriage. Whether Britton's failure to mention the remarriage was an

intervening act that broke the causal chain between Lorella's negligence and

Rabbage's damage presents a jury question. The question can be decided on

summary judgment "only when the facts are undisputed and inferences therefrom

are plain and incapable of reasonable doubt or difference of opinion." Daugert,

.

Material issues of fact stand in the way of Lorella's theory that Britton's

alleged negligence was an intervening cause. First, LoreIla has not established

that Britton was negligent. It is not even clear that Rabbage told Britton she had

remarried. Second, a negligent intervening act by a successor attorney does not

necessarily relieve the first attorney of liability for negligence. If the causal chain

is unbroken, the negligent parties share blame, and it is for the finder of fact to

apportion the relative fault. Diamond v. Sokol,

(S.D.N.Y. 2006).

13 No. 77053-5-1/14

To be regarded as a superseding cause, the intervening act must be one

that is not reasonably foreseeable. Maltman v. Sauer,

,

(1975). To be unforeseeable, the intervening act must be "highly

unusual or extraordinary." Cline v. Watkins,

,

(1977). Here, a jury could find that Britton's alleged negligence was

not unforeseeable. In Diamond,

, the court ruled that

causation remained an open question for the jury because if the original attorney

had not acted negligently, the successor attorney would not have needed to

remedy the error. That is true in this case as well. One of the considerations to

determine whether an intervening act constitutes a superseding cause is whether

the intervening act created a different type of harm than otherwise would have

resulted from the actor's negligence. Campbell v. ITE Imperial Corp.,

,

(1987). The type of harm likely to result from

Lorella's alleged negligence was the vacation of the dissolution decree, which is

precisely what occurred.

LoreIla has not established beyond reasonable dispute that Britton's

omission was the superseding cause of the emotional distress Rabbage

experienced as a result of being married to two men at the same time. A jury

could find that Lorella's negligence was a proximate cause of Rabbage's distress

and her other damages.

14 No. 77053-5-1/15

The order granting summary judgment to LoreIla is reversed.

WE CONCUR:

ft/

15