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National Wholesale Mortgage Co. v. Belzer

June 2, 1997

NATIONAL WHOLESALE MORTGAGE COMPANY, APPELLANT,
v.
DAVID BELZER, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 94-2-30727-4. Date filed: 09/14/95. Judge signing: Hon. James W. Bates Jr.

Authored by Mary K. Becker. Concurring: H. Joseph Coleman, Ann L. Ellington.

The opinion of the court was delivered by: Becker

BECKER, J. -- The trial court granted David Belzer's motion to vacate a judgment favoring National Wholesale Mortgage Company. National asserts, without support in the record, that it was unprepared to respond on the date of hearing and that it moved the trial court to either grant a continuance or strike the motion to vacate as improperly served. We affirm.

Certified Public Accountant, David Belzer, and National Wholesale Mortgage Company entered a lease agreement under which National would provide office space and business referrals to Belzer in exchange for a percentage of Belzer's fees. The parties later had a falling out, and Belzer found office space elsewhere.

The parties disputed who first broke the lease agreement and whether, as a result of breaking the lease, Belzer owed National a penalty provided for in the lease agreement. They submitted their dispute to arbitration in the fall of 1994, and the arbitrator ruled in favor of National.

Belzer filed a complaint for damages and a petition to vacate the arbitration award. In early 1995, the superior court confirmed the arbitrator's award and awarded judgment in favor of National in the amount of $23,274.33. The judgment noted that Belzer had already paid $10,000, thus leaving a balance of $13,274.33. Belzer did not appeal this judgment.

Through its attorney, National moved the superior court for supplemental proceedings to enforce the judgment. On August 25, 1995, the superior court heard the motion and stayed the matter in order to allow Belzer to file by August 29, 1995, a motion to vacate the judgment. The same attorney represented National at the hearing and signed the order staying the matter.

On August 29, 1995, Belzer filed a motion to vacate the judgment and served the motion on National's attorney but not on National itself as required by court rule. In that motion Belzer argued that his contract with National was illegal and against public policy and therefore unenforceable.

On September 14, 1995, the superior court granted Belzer's motion to vacate, and signed a written order presented by Belzer that same day. In the written order the superior court concluded that the lease was unenforceable as violating state law and public policy prohibiting CPAs from paying commissions for client referrals. The order further concluded that the arbitrator's award was based on an error of law and should have been vacated under RCW 7.04.160(4). Accordingly, the court set aside National's judgment and the order confirming the arbitrator's award; it vacated the underlying arbitration award; and it ordered National to reimburse Belzer $10,000 paid in partial satisfaction of the judgment.

National claims that it moved to set aside Belzer's motion to vacate for failure to comply with the rule of service, and that it also moved at the same time for a continuance of the hearing on Belzer's motion. National contends on appeal that the trial court erred in not granting at least one of these motions.

Improper service of a motion to vacate may lead to reversal where the adversary party fails to appear for the motion, but not when it is clear that the adverse party had adequate actual notice and sufficient time to prepare. Lindgren v. Lindgren, 58 Wash. App. 588, 593, 794 P.2d 526 (1990) (citing In re Marriage of Hill, 53 Wash. App. 687, 769 P.2d 881 (1989)).

To take advantage of Lindgren, National should be able to point to evidence in the record that it was caught unprepared by the motion to vacate. But we find no affidavit or other evidence showing that to be the case. To the contrary, it appears National's attorney had recently taken action to enforce the judgment, and these proceedings had been stayed for the express purpose of allowing Belzer to bring the motion to vacate; National's attorney received the notice at least a week before the hearing.

National has provided no record to support its claims. The record contains no response by National to Belzer's motion to vacate. The record contains neither a written motion to strike nor a written motion for a continuance. The record contains neither notation rulings nor clerk's minutes recording any oral motions. And the record contains no report of proceedings. National's claims are not only unsupported but virtually unreviewable. On such a scant record we cannot say the trial court abused its discretion in denying National's motions. Olmsted v. Mulder, 72 Wash. App. 169, 183, 863 P.2d 1355 (1993).

National next contends that the trial court erred when it vacated the judgment. First, National argues that Belzer was prohibited from bringing up, by way of a motion to vacate, the issue of the illegality of commission payments because Belzer had already raised this issue in a pro se motion in the pre-judgment proceedings. Second, National argues that the trial court wrongly concluded that the underlying contract was illegal. Finally, National argues that the trial court erred when it ordered National to repay $10,000 of the judgment. In support of this final contention National argues that Belzer did not plead or argue for the return of $10,000; that he presented the order without the signature of National's attorney; and that if the trial ...


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