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Pete''s Towing Service v. McCants

September 16, 1996

PETE'S TOWING SERVICE, APPELLANT,
v.
LESTER MCCANTS, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 92-2-14242-2. Date filed: 04/05/95. Judge signing: Hon. Leroy McCullough.

PER CURIAM. -- Pete's Towing Service (PTS) appeals the denial of its motion to vacate an order entered by the superior court on September 15, 1992. We conclude that the motion to vacate was untimely. Accordingly, we affirm.

FACTS

In April of 1992, Lester McCants commenced a small claims action in King County District Court alleging PTS owed him several thousand dollars for damage done to his car while being impounded. After PTS failed to appear at the scheduled hearing, the small claims court entered a default judgment against PTS and in favor of McCants in the sum of $1,572.29. PTS appealed to King County Superior Court. After reviewing the evidence presented at a trial de novo, the Superior Court entered the following order on September 15, 1992:

The above-entitled Court, having heard a trial de novo from a judgment of the Southwest Division, King County District Court; the petitioner, Pete's Towing Service appearing by counsel, Arthur S. Langlie, attorney at law; and the respondent, Lester McCants appearing pro se,

IT IS HEREBY ORDERED that the judgment is ordered in favor of the respondent, Lester McCants in the amount of $1,572.29 and the default judgment below affirmed.

On February 9, 1995, PTS moved to vacate that order for lacking any findings of fact, Conclusions of law, or judgment summary. The motion to vacate was denied. This appeal followed.

DECISION

The sole issue presented on appeal is whether the Superior Court erred in denying PTS' motion to vacate. "An order granting or denying a motion to vacate an order or judgment is reviewed for abuse of discretion." *fn1 PTS contends the Superior Court abused its discretion in denying PTS' motion to vacate the September 15, 1992 order entered in favor of Lester McCants. PTS argues that the order should be vacated because it was entered without formal findings of fact and Conclusions of law as required by court rule and statute. PTS claims that this irregularity "resulted in a void judgment [that] should have been vacated " under CR 60(b). For purposes of resolving this issue, we shall assume that the Superior Court was required to enter formal findings of fact in the case. See CR 52(a)(1).

PTS has waived, however, any right it may have had to seek vacation of the decision of the superior court on that basis alone. *fn2 The motion to vacate was untimely under CR 52 (d), which provides in pertinent part:

"A judgment entered in a case tried to the court where findings are required, without findings of fact having been made, is subject to a motion to vacate within the time for the taking of an appeal."

Under this rule, a motion to vacate an order or judgment for absence of written findings must be filed within the time for taking an appeal of that judgment. This plain reading of the rule is consistent with the rationale underlying the requirement for written findings of fact and Conclusions of law. The primary purpose of formal findings and Conclusions is to enable an appellate court to review the issues raised on appeal. *fn3 Once the period for filing an appeal has lapsed, the need for having written findings and Conclusions no longer exists.

The motion to vacate in this case was filed on February 9, 1995, more than two and a half years after the challenged order was entered and long after the time for taking an appeal had expired. *fn4 If PTS felt it was in any way prejudiced by the lack of formal findings and Conclusions, it should have made a timely motion to vacate the order of the superior court.

Because the motion is time barred, we cannot say the superior court abused its discretion by ...


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