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Smith v. Renton School District No. 4037/30/2001
Joe Lee Smith, a wrongful death plaintiff, filed a claim with the Renton School District, then filed suit. The District did not formally appear or answer in response to the complaint, and Smith obtained a default judgment without notifying the District. He appeals an order vacating the default judgment. We affirm. The District advised Smith of its intention to defend as soon as Smith filed his claim, and communicated with him about possible settlement. The trial court was within its discretion to conclude these communications constituted an informal appearance sufficient to require notice to the District of Smith's motion for an order of default.
Judah Smith was a student at Dimmit Middle School in Renton, Washington. On October 7, 1999, while walking through the school cafeteria, he slipped on a puddle of spilled milk and hit his head on a nearby table. Judah Smith died from his injuries.
Attorney Lembhard G. Howell notified the Renton School District's insurance carrier on December 22, 1999, that he would be representing plaintiff Joe Smith, Judah's father. On behalf of Smith, Howell filed a claim for damages with the District as required by RCW 4.96.020(4) on February 10, 2000. William Spencer, an attorney for the District, called Howell in late February to advise of his involvement in the defense of the action against the District. Spencer also requested a formal settlement demand, which Howell agreed to provide. Spencer confirmed his representation of the District, and his earlier conversation with Howell, by letter dated March 3, 2000. Howell then sent a settlement demand letter to Spencer.
Smith filed suit against the District on April 14, 2000. Spencer received a courtesy copy of the summons, complaint, and case schedule several days before the District was served with the summons and complaint. Spencer's legal assistant neglected to file Spencer's notice of appearance. On June 12, 2000, with no notice to the District, Smith obtained an order of default against the District. The District did not learn of the default order until August, when Spencer attended a deposition noted by Howell of Jon Hoobler, a senior claims representative with the District's insurer. Howell told Spencer he was 'out of this case' because he had failed to file an appearance and answer. Spencer immediately served Howell with a notice of appearance and answer and moved to set aside the order of default. The trial court granted the motion on the ground that the District had made an appearance. In an order dated October 31, 2000, this court granted Smith's motion for discretionary review.
Civil Rule 55 provides that a court cannot enter a default order against a party who has 'appeared in the action for any purpose' without notice to that party. CR 55(a)(3); Rohr v. Baker, 53 Wn.2d 6, 7-8, 329 P.2d 848 (1958); Batterman v. Red Lion Hotels, Inc., Wn. App. , 21 P.3d 1174, 1177 (2001). If a court enters an order of default in a case where an appearing party lacks notice, the defaulted party is entitled as a matter of right to have the judgment set aside. Tiffin v. Hendricks, 44 Wn.2d 837, 847, 271 P.2d 683 (1954); Shreve v. Chamberlin, 66 Wn. App. 728, 731-32, 832 P.2d 1355 (1992); Batterman, 21 P.3d at 1177. The issue here is whether the trial court erred in determining that the District appeared. We review this determination for an abuse of discretion. Batterman, 21 P.3d at 1177.
Ordinarily a party 'appears' in an action when it 'answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his appearance.' RCW 4.28.210. But these methods are not exclusive, and informal acts may constitute an appearance. Bat
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