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Henry v. Krause2/14/2000
In this personal injury action, the trial judge granted Shane Henry a default order against Clint Krause despite the fact that Krause's answer, although untimely, was filed and served before the default hearing. Armed with that order, Henry then went and got a $67,145.75 default judgment against Krause from a court commissioner in the ex parte department. The trial judge later granted Krause's request to vacate the default order, ruling he had 'improvidently' granted the earlier order. Henry appeals, arguing the trial judge abused its discretion in setting aside the original default order. In light of the record, there is no basis to reverse the trial court's decision. Further, on this court's own motion, we hold that sanctions in the form of attorney fees to Krause are appropriate for frivolous appeal under RAP 18.9. The matter is remanded to the trial court to determine the amount of the award and for a determination of whether CR 11 sanctions are warranted based on Henry's and his counsel's actions below.
FACTS
Henry sued Clint Krause for personal injuries resulting from an automobile accident on December 30, 1997. Henry amended the complaint and served Krause on February 27, 1998. Krause's counsel filed a notice of appearance on March 18. On April 9, at 11:57 a.m., when there was no answer on file, Henry filed a motion for default. At 4:30 p.m. that same day, Krause filed his answer. Krause opposed Henry's motion for default based on the fact that he had filed and served his answer. Henry argued that default was still warranted because the answer was late. The trial court entered an order of default.
Ten days later, with full knowledge that Krause had filed his answer, Henry moved for a default judgment ex parte before a court commissioner without notice to Krause. The commissioner granted judgment for Henry in the amount of $67,145.75 and entered findings of fact and conclusions of law. The trial judge later set aside the order of default at Krause's request, ruling that the order had been 'improvidently entered.' Henry appeals.
DECISION
Henry claims that the trial court abused its discretion in vacating the default order. The decision to set aside an order of default is within the discretion of the trial court. A plaintiff may move for default if a party fails to timely respond as provided in CR 12(a) but the defendant who has appeared may file the response any time before the hearing on the motion. Filing the pleading before the hearing cures the default. What remains before the court at the hearing is the matter of terms or a fee award for failing to respond before the filing of the motion. Entry of a default order in this case was error. The court may award attorney fees or impose terms in response to bringing that motion. Given this error, the court was well within its discretion in correcting the error and in deciding to allow Krause to go forward with his defense. Henry has failed to make any showing of abuse here.
Because the judgment was entered before the order of default was vacated, the parties appear to agree that the vacation of the default order has the practical effect of vacating the judgment, based on that order. We agree. Moreover, on this court's own motion, we find the appeal frivolous and therefore the matter appropriate for sanctions in the form of attorney fees to Krause under RAP 18.9. We remand the matter to the trial court to determine the award amount as well as for a determination of whether additional sanctions are appropriate under CR 11.
Affirmed. Remanded for determination of terms with respect to the motion for default and to the appeal.
FOR THE PANEL:
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