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El Monterey Condominium Owners Association v. Engle

January 27, 1997

EL MONTEREY CONDOMINIUM OWNERS ASSOCIATION, RESPONDENT,
v.
CHARLES D. ENGLE AND DONNA ENGLE, HUSBAND AND WIFE, ET AL, DEFENDANTS. AND EMILIO M. KOSROVANI, APPELLANT,



Appeal from Superior Court of King County. Docket No: 92-2-17491-0. Date filed: 04/24/95. Judge signing: Hon. Liem E. Tuai.

Petition for Review Denied October 7, 1997,

WE Concur

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- Emilio Kosrovani appeals the denial of his intervention motion, which he brought to contest an order terminating redemption rights on a foreclosed piece of property. The civil rules require that all intervention motions must be timely made. See CR 24. By the time Kosrovani sought to intervene, the order terminating redemption rights had been entered and the period for any appeal had expired. Kosrovani did not plead any facts which, if true, would have provided a basis for vacating the order under CR 60(b). Furthermore, he conceded at oral argument that he had no basis to vacate the order. Thus, by the time Kosrovani made his application, he had no procedural avenue available to challenge the order. Consequently, allowing intervention would serve no purpose. We therefore affirm.

Facts

This opinion has no precedential value and will be filed according to the rules of the court. See RCW 2.06.040; RAP 10.4(h). The facts are known to the parties and will be mentioned only as necessary for an understanding of this opinion.

The El Monterey Condominium Association foreclosed its lien on a condominium owned by Charles and Donna Engle. The Engles were never located, and a default judgment was entered against them in December 1993. The action continued, however, because numerous other parties had liens on the property. After these liens were prioritized, the property was sold at a sheriff's sale. The Association was the highest bidder at this sale and bought the property subject to a 12-month redemption period.

Approximately five months later, the Association moved to terminate the redemption period, asking the court to find that the property had been abandoned for the six months preceding the sale. The Association served copies of its motion on all the non-defaulted parties to the foreclosure action. Of these parties, only the United States opposed the Association's motion, arguing that the Association had not proved abandonment. The court granted the Association's motion on January 24, 1995. No party appealed this order.

Kosrovani became aware of this order sometime in February 1995 and filed a motion to intervene in April 1995. Kosrovani argued that intervention was proper because he was interested in purchasing the redemption rights and because the order terminating those rights was legally erroneous. The Association argued that Kosrovani lacked standing to challenge the order and that his motion was untimely because it was brought after the time period for reconsideration had expired. See CR 59(b). The court ruled that Kosrovani had no standing to challenge the order and therefore had no legal basis to intervene.

Kosrovani had also filed a lis pendens against the property. The Association moved to vacate Kosrovani's lis pendens and requested attorney fees, arguing that the lis pendens was filed without substantial justification. See RCW 4.28.328(3). The court vacated the lis pendens and awarded fees to the Association because Kosrovani's motion was advanced without cause.

Intervention Kosrovani argues that the court erred in denying him permissive intervention and intervention as a matter of right. Both types of intervention require a timely application. See CR 24(a)(b). When an applicant moves for intervention after judgment, the court should allow intervention only upon a strong showing of necessity after considering all the circumstances. Kreidler v. Eikenberry, 111 Wash. 2d 828, 832-33, 766 P.2d 438 (1989). When deciding whether intervention is warranted, the court looks to the pleadings, accepting the applicant's allegations as true. Westerman v. Cary, 125 Wash. 2d 277, 302-03, 892 P.2d 1067 (1994).

Here, Kosrovani did not bring his motion until after reconsideration and appeal periods had expired. He argues that his motion remains timely, however, because he can still bring a motion to vacate under CR 60(b). But vacation under CR 60(b) generally requires newly discovered facts, and no such facts were pled here. As Kosrovani conceded at oral argument, he lacked any basis to bring a CR 60(b) motion and could only argue that the order was erroneous as a matter of law. Error of law is not a permissible basis for vacation of judgment under CR 60(b). Shum v. Depart. of Labor & Indus., 63 Wash. App. 405, 408, 819 P.2d 399 (1991). Thus, there was no tenable rationale for allowing intervention here.

Attorney Fees

The Association was awarded fees below under RCW 4.28.328(3), *fn1 which permits fee awards for defending actions based on a lis pendens filing made without a substantial justification. Kosrovani argues that this statute does not apply here because the proceeding was not "an action." We disagree. An action is defined as including the "legal and formal demand of one's right from another person or party made and insisted on in a court of Justice." See Black's Law Dictionary 26 (5th Ed. 1979). There is no reason to interpret "action" as requiring the filing of a formal complaint, as Kosrovani suggests. Fee statutes are remedial in nature and therefore should be liberally construed to effect their purpose. See, e.g., Cohn v. Dept. of Corrections, 78 Wash. App. 63, 66-67, 895 P.2d 857 (1995). The purpose of the statute would be frustrated if a party could avoid fees for filing an unjustifiable lis pendens by not also ...


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