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Washburn v. Beatt Equipment Co.11/25/1992
eatt.
Partial Summary Judgment -- Reinstatement of Defendant
Defendant challenges a preliminary ruling made on the motion calendar. Early on in the proceedings, on March 29, 1989, the trial court granted defendant's motion for partial summary judgment of dismissal of defendant from the action. The order of partial summary judgment contained the certification and entry of judgment language required by CR 54(b) and RAP 2.2(d) ("there being no just reason for delay, the Clerk of the Court is hereby directed to enter this order . . .", Clerk's Papers, at 287). Plaintiffs later moved to reinstate defendant as a party to the action, at which time it came to plaintiffs' counsel's attention that the order contained the certification language. Plaintiffs then moved pursuant to CR 60(b) for vacation of the partial summary judgment. The trial court granted the motion, in part because the court said that it had never intended that the judgment be a final judgment, but instead the trial court intended that plaintiffs could request reinstatement if discovery led to support for the theory that the builder's statute of repose did not apply.
Defendant contends that by moving under CR 60(b) for vacation of the judgment plaintiffs admitted that the partial summary judgment was a final judgment, that plaintiffs are bound by that theory and cannot now argue that the partial summary judgment was not a final judgment, that vacation was improper under CR 60(b), and, in any case, that service required under CR 60(b) was improper and the court therefore
lacked jurisdiction to vacate the partial summary judgment order.
Defendant's arguments are without merit.
In Fox v. Sunmaster Prods., Inc., 115 Wash. 2d 498, 503, 798 P.2d 808 (1990), we held that the "no just reason for delay" finding is insufficient to satisfy CR 54(b) and RAP 2.2(d) unless the record "affirmatively shows there is in fact some danger of hardship or injustice that will be alleviated by an immediate appeal." Fox, at 503. Pro forma language to that effect is insufficient. Fox, at 504. The record here does not indicate that there was no just reason for delay, and defendant does not argue that there was. Instead, the language in the summary judgment order is simply pro forma language of the kind disapproved in Fox and Doerflinger v. New York Life Ins. Co., 88 Wash. 2d 878, 567 P.2d 230 (1977). Therefore the partial summary judgment was not a final appealable order.
Defendant asserts, however, that Fox does not apply because it concerns a version of CR 54(b) requiring written findings supporting certification, while CR 54(b) as it existed when partial summary judgment was entered did not. Counsel's bald assertion overlooks the fact that regardless of the written finding requirement now in the rule, the holding in Fox upon which this matter turns is not new. See Doerflinger v. New York Life Ins. Co., supra at 882. Regardless of written findings, the record must still demonstrate that there is in fact no just reason for delaying entry of judgment.
Absent a proper certification, an order which adjudicates fewer than all claims or the rights and liabilities of fewer than all parties is subject to revision at any time before entry of final judgment as to all claims and the rights and liabilities of all parties. CR 54(b); see Fox, at 504. The partial summary jud
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