Appeal from Superior Court of Skagit County. Docket No: 94-2-00299-9. Date filed: 02/26/96. Judge signing: Hon. Stanley K. Bruhn.
PER CURIAM. In this real estate misrepresentation case, we are asked to decide whether the trial court abused its discretion by (1) declining to set aside its order granting the plaintiffs' summary judgment as to appellant, Dennis Andersen, based on his failure to respond to the motion; and (2) later entering judgment against him based on the prior summary judgment order. Because Andersen has not shown that he was entitled to have the summary judgment order set aside under any of the criteria set forth in CR 60, we affirm.
In 1990, Andersen and his former wife, Diane Rogers, *fn1 sold their waterfront property to plaintiffs. The profile sheet attached to the listing agreement and the purchase and sale agreement described the property size as 2.5 acres. Three years later, plaintiffs surveyed the land and discovered that the property's actual acreage was only 1.96 acres.
The instant suit for damages against Andersen and Rogers followed.
Plaintiffs served Andersen with the summons and complaint on February 1, 1994. He retained counsel, filed an answer and third-party complaint against the selling agent and conducted discovery. *fn2 On August 1, 1994, Andersen's counsel withdrew from the case. Andersen did not retain new counsel until October 1995.
On August 10, 1995, plaintiffs filed a motion for summary judgment, arguing that there were no material issues of fact regarding liability or damages. They also argued that the measure of damages was an abatement of the purchase price in proportion to the shortfall in the amount of land that was purchased, which they calculated to equal $20,952.
The declaration of mailing reflects that Andersen was served with the motion and notice of the September 8, 1995 hearing date by mail on August 8, 1995 at his home address. Andersen failed to respond to the motion. On September 5, 1995, Rogers appeared before the court and asked for a sixty-day continuance of the hearing to allow her to take plaintiffs' depositions. Because Andersen did not join in the request, the court granted a continuance as to Rogers only.
In a letter dated September 7, 1995 to the trial Judge, plaintiffs' attorney confirmed that at the September 5 hearing, the court had also "agreed to enter an order on summary judgment as to Defendant Dennis Andersen for his failure to respond to the motion." CP 188. Because the court had also apparently agreed to enter an order without the need for counsel to appear at the September 8 hearing, counsel sent an order for entry to the court. The letter and a copy of the summary judgment order was also sent to Andersen. He again filed no written response nor did he appear before the court on September 8.
The court entered the order granting summary judgment as to Andersen on September 8, 1995. That order did not include a provision for the amount of damages.
Andersen's present counsel, C. Thomas Moser, filed a notice of appearance on his behalf on October 5, 1995. He also filed a "response" to the plaintiffs' summary judgment motion which had been continued to November 3 as to Rogers. At that hearing, Moser apparently discovered for the first time that the court had previously granted summary judgment against his client. He was thus not allowed to oppose the motion on behalf of Andersen. The court however denied summary judgment as to Rogers based on her response. CP 193.
Andersen moved to vacate the order granting summary judgment under CR 55(c) and CR 60 based upon the following grounds: (1) defaults are disfavored; (2) Andersen was not represented by counsel at the time the order was entered; and (3) he "was not aware that the court entered a default order granting summary judgment[.]" The court denied the motion.
With notice to Andersen, plaintiffs then moved for entry of judgment based on the previously entered order granting summary judgment. Andersen opposed the motion arguing that further proceedings were necessary to determine the amount of damages. The court ruled that the issues decided on summary judgment as to Andersen included damages as well as liability and that plaintiffs were therefore entitled to judgment as set forth in their complaint and summary judgment motion.