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Coblentz v. Rorem6/14/2005
order of distribution awarded him $51,000 total, which was less than the one-third he had bargained for. We affirmed the trial court's order of distribution, but we found that the trial court awarded Rorem a total of $57,000 in fees, of which $51,000 was Dora's responsibility. Because we found that Rorem's total fee was $57,000, a sum greater than one-third of the total settlement, we did not review Rorem's claim.
No party moved for reconsideration after this court filed its opinion on May 4, 2001. Thus, that opinion became the decision terminating review on June 5, 2001, and we mandated the case on August 1, 2001.
Then, in April 2002, Rorem moved under RAP 12.8 to nullify the promissory note and award the additional $1,166.66 due under our mandated decision. In response, Dora moved under CR 60(a) to correct 'a mathematical error' in the order of distribution. Exh. 9 at 4. The correction would have reduced her share of Rorem's fee to $45,000, thereby increasing her net recovery to $86,500. The court held that these were the figures the trial court's findings and conclusions actually contemplated, and that our prior decision was based on inaccurate assumptions as to what Dora owed Rorem; the court concluded that in the original distribution, the trial court intended Dora to get $86,500 rather than $80,500 as shown on the order of distribution. Despite these determinations, the trial court denied Dora's CR 60(a) motion, believing that it could not grant the motion without our approval. The court also denied Rorem's RAP 12.8 motion.
We reviewed the lower court's decision and held that RAP 12.8 afforded Rorem no relief and that the trial court properly declined to correct the error in the order of distribution because our mandate made that decision final. Thus, we affirmed the lower court.
We also held that because Dora had not timely moved under CR 60(a), we could not grant her relief. We also explained that to grant Dora's motion would necessarily 'change or modify' the $57,000 fee that we affirmed in the prior decision; we concluded that RAP 12.7 prohibited us from modifying our earlier decision. Exh. 9 at 6. And we noted that Dora filed her motion too late to qualify as a motion for reconsideration.
Later, we amended our opinion to clarify that '{t}he promissory note was not before us on the prior appeal. We did not and do not make any decision on the enforceability of this note.' Exh. 10.
Dora then sued to collect the promissory note. The trial court found that, 'on its face, the note is enforceable, containing all of the requisites of an unconditional promise to pay.' CP at 51. The trial court also found that Dora accepted the note by starting the lawsuit. Further, the court found 'that it was the intention of the trial court relating to the distribution of the proceeds of settlement, to include that Ms. Coblentz was due $86,500.00 rather than $80,500.00 as shown on the Order of Distribution dated January 5, 2000.' CP at 51-52. Therefore, the court found that it was 'not a failure of consideration or want of consideration for the execution of this note in light of the trial court's ultimate determination as to its intention as to the appropriate division of settlement proceeds.' CP at 52. Ultimately, the court held that Dora was entitled to judgment on the note plus interest and reasonable attorney fees.
Rorem argues that the note is unenforceable.
ANALYSIS
I. Review of the Note
Rorem contends that the lower court changed the order of distribution in contravention of this court's 2001 unpublished opinion, RAP 12.2, and the law of the case. He is correct on the law, but wrong in ho
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