IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

WILLIAM P. NELSON, No. 56934-5-II

Respondent,

v. UNPUBLISHED OPINION

HOUSTON WADE, 

Appellant.

CHE, J. ⎯ Houston Wade appeals the trial court’s entry of default, the subsequent default 

judgment, and the denial of his motion to set aside the default judgment. Wade, on his blog,1

alleged that William Nelson engaged in multiple acts of criminal conduct. Nelson brought a 

defamation lawsuit against Wade. The trial court found Wade engaged in several discovery 

violations. 

Nelson moved for an entry of default under CR 37(b)(2)(C) and Wade responded. The

trial court granted Nelson’s motion for an entry of default. Over a year later, Nelson moved for 

default judgment and attached a certificate of service. Wade did not respond. The trial court 

granted default judgment. Wade moved to set aside that judgment based on improper service

twice, which the trial court denied both times. 

 

1

“Blog” is commonly defined as “a website that contains online personal reflections, comments, 

and often hyperlinks, videos, and photographs provided by the writer.” Blog, MERRIAMWEBSTER.COM DICTIONARY, https://www.merriam-webster.com/dictionary/blog (last visited 

May 23, 2023).

Filed

Washington State

Court of Appeals

Division Two

May 29, 2024
No. 56934-5-II

2

We hold the trial court (1) did not abuse its discretion by making an entry of default 

under CR 37(b)(2)(C) against Wade for his failure to comply with a discovery order, (2) did not 

err in declining to set aside default judgment based on due process, (3) did not abuse its 

discretion by declining to set aside the default judgment based on improper service, and (4) did 

not err by not automatically dismissing Nelson’s action under CR 41(b)(2) for failure to 

prosecute. Thus, we affirm. 

FACTS

Nelson has lived and worked on Bainbridge Island for over 62 years. Nelson has owned 

and operated a contracting business there since 1987. In October 2018, Wade published several

allegations relating to Nelson: (1) Nelson raped a woman and attempted a coverup with the local 

police, (2) one of Nelson’s alleged victims committed suicide due to the alleged rape, (3) Nelson 

engaged in rape and child abuse in cooperation with the local police and fire departments that the 

FBI was investigating, (4) Nelson conspired with local police to cover up the child sex ring he 

was running, among other alleged crimes, (5) Nelson committed domestic violence against his 

former spouse and his stepchildren, (6) Nelson used cocaine, and (7) Nelson stalked and tried to 

kill Wade several times. 

According to Nelson, Wade’s allegations damaged Nelson’s reputation and caused him 

significant emotional distress and loss of income. In November 2018, Nelson brought a 

defamation lawsuit against Wade. 

In March 2019, Nelson sent Wade interrogatories and production requests. Among other 

things, Nelson requested Wade to “[i]dentify any Person whom you believe you may call as a 

witness in this case.” Clerk’s Papers (CP) at 178. The request provided, “‘identify’ when used 
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in reference to an individual person means to state his full name, present address, and telephone 

number, if known; his present position, and business affiliation.” CP at 176. 

The trial court found Wade’s responses were nonresponsive, combative, and insulting. 

Wade agreed to provide supplemental documents by May 23 at a CR 26(i) conference.2 But 

Wade did not do so. Nelson moved to compel the requested documents. 

At the hearing on that motion, Wade provided additional documents and the hearing was 

continued. Nelson found the documents insufficient and, on June 28, the trial court ordered 

Wade to provide complete responses to the interrogatories and provide the requested documents 

by July 12.3 The trial court ordered Wade to pay $3,000 in attorney fees to Nelson as a sanction. 

Wade did not pay the sanction. Wade attempted but failed to comply with the aforementioned 

discovery obligations on July 17. 

Another CR 26(i) conference was scheduled for August, and Wade attempted to provide 

additional discovery responses but again failed to adequately respond. While discovery was 

ongoing, Wade continued to post about Nelson and the pending litigation on a social media

account. In Wade’s October deposition, he said a deputy prosecuting attorney indicated she was 

likely going to charge Nelson with a felony if he continued pursuing the defamation lawsuit 

 

2 CR 26(i) requires parties to confer on discovery matters before the trial court will entertain a 

motion or objection on such matters. CR 26(i) is intended “to minimize the use of judicial 

resources during discovery and to encourage professional courtesy between counsel.” Amy v. 

Kmart of Wash. LLC, 153 Wn. App. 846, 853, 223 P.3d 1247 (2009). 

3

In May 2019, Wade filed a notice that Nelson had been tampering with Wade’s potential 

witnesses. In January 2020, Wade filed a declaration regarding additional alleged witness 

tampering. 
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against Wade. That deputy prosecuting attorney subsequently submitted a declaration denying 

that allegation. 

In the same deposition, Wade admitted to not attempting to obtain the contact 

information of at least 17 of his 41 witnesses in violation of the June 28 trial court order. Wade

also provided the names of previously undisclosed witnesses, but lacked their contact 

information. Ultimately, Wade provided the address of only one witness. In January 2020, 

Nelson moved for an entry of default. Wade appeared at the January 17, 2020 entry of default

hearing. The trial court found that as of January 17, 2020, “[Wade] has failed to make a 

reasonable attempt to provide adequate responses to [Nelson’s] requests [for interrogatories and 

production].” CP at 29. 

In its order, the trial court explicitly determined that Wade’s discovery violations were 

willful, that such violations substantially prejudiced Nelson’s ability to adequately prepare for 

trial, and that anything less than a default judgment would not motivate Wade to comply with the 

discovery orders. To that end, the trial court reasoned that less severe contempt orders would be 

useless because

prior contempt sanctions, allowing for additional time to comply, as well as 

providing a monetary incentive to comply, have not motivated Defendant to comply 

with the Defendant’s discovery obligations, or demonstrated a willingness to 

comply with court orders. Furthermore, Defendant’s willingness to knowingly lie 

under oath at deposition demonstrates a complete disregard to the legal process and 

the administration of justice. There is no alternative for this Court than to Grant 

Plaintiff’s motion for default and strike Defendant’s responsive pleadings.

CP at 32. On April 6, 2020, the trial court entered default against Wade. 

On September 10, 2021, Nelson moved for default judgment, seeking to determine the 

appropriate remedy. Nelson filed a certificate of service showing that the default judgment 
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motion and notice for the related hearing were mailed to Wade’s address of record, and those 

filings were not returned as undeliverable. On September 27, the trial court entered default 

judgment, determining that the publications were defamatory per se, awarding Nelson $500,000 

in damages, and granting injunctive relief. Wade did not appear at the hearing. 

Wade alleged that he did not receive notice of the default judgment hearing. Rather, 

Wade alleged that he discovered, in February 2022, that his bank account had been drained due 

to garnishment. That month, Wade moved to set aside the default judgment as (1) Wade asserted 

that he did not receive service for anything filed from January 2020 onwards and (2) the case 

should have been dismissed by the clerk under CR 41 for inactivity. To that end, Wade asserted 

that no filings had been delivered to his address of record, a restaurant located on Bainbridge 

Island. In affidavits, the general manager and executive chef at the restaurant asserted that no 

filings had been delivered there from May 2021 to February 2022. 

Nelson provided the affidavit of the process server who maintained that she mailed notice 

of the default judgment proceedings to Wade’s address of record and that the mailing was not 

returned as undelivered. At the hearing on Wade’s motion, Nelson emphasized that there is no 

evidence about how mail is handled at the restaurant. The trial court reasoned that Wade had not 

met his burden to disprove proper service and denied the motion. 

In April 2022, Wade again moved to set aside the default judgment due to improper 

service. Wade also moved to dismiss the case due to an intentional violation of due process. In 

this motion, Wade asserted that Nelson sent the garnishment and another mailing to Wade’s 

mother’s address, not the restaurant. Wade attached two mailings sent to Wade’s mother’s 

address from Nelson’s counsel. The two mailings appear to have been sent in February 2022. 
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One of Nelson’s attorneys submitted a declaration alleging that an asset search related to 

judgment collection found that Wade’s last known address was his mother’s address. And so, 

the attorney sent filings there associated with garnishment. After Wade filed his first motion 

claiming improper service, the attorney began sending mailings to the restaurant. On May 6, the 

trial court again denied Wade’s motion. 

Wade appeals the trial court’s grant of Nelson’s motion for entry of default, the default 

judgment, and the order denying Wade’s motion to set aside default judgment under CR 60(b). 

ANALYSIS

I. ENTRY OF DEFAULT FOR DISCOVERY VIOLATIONS

Wade argues that the trial court erred in granting Nelson’s motion for an entry of default

because (1) Nelson engaged in witness tampering and (2) Wade did not err in failing to 

adequately respond to interrogatories about his witnesses as the interrogatories only required 

disclosure “‘if known.’”

4

 Br. of Appellant at 13. We disagree. 

The trial court’s factual findings are reviewed for substantial evidence. J.K. v. Bellevue 

Sch. Dist. No. 405, 20 Wn. App. 2d 291, 302, 500 P.3d 138 (2021). “‘Substantial evidence is the 

 

4 Wade submitted Nelson’s first set of interrogatories and production requests as an appendix to 

his appellant brief. Nelson argues that we should strike this section of the appendix because 

those documents are not in the record on appeal. We reject this argument because the 

aforementioned discovery request is already in the record on appeal. 

Nelson also asks us to strike Wade’s statement of the case as it lacks references to relevant parts 

of the record. RAP 10.3(a)(5) requires, “A fair statement of the facts and procedure relevant to 

the issues presented for review, without argument. Reference to the record must be included for 

each factual statement.” The great majority of Wade’s statement of the case contains no citation 

to the record. Wade’s failure to follow our rules makes it impossible for us to assess the veracity 

of his factual statements; however, because we recognize our rules should “be liberally 

interpreted to promote justice and facilitate the decision of cases on the merits,” we decline to 

strike Wade’s statement of the case. RAP 1.2(a). 
No. 56934-5-II

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quantum of evidence sufficient to persuade a rational fair-minded person the premise is true.’” 

Id. at 303 (internal quotation marks omitted) (quoting Hoover v. Warner, 189 Wn. App. 509, 

520, 358 P.3d 1174 (2015)). And unchallenged factual findings are verities on appeal. State v. 

Grocery Mfrs. Ass’n, 198 Wn.2d 888, 901, 502 P.3d 806 (2022). We review the trial court’s 

sanction decision based on discovery violations for an abuse of discretion. J.K., 20 Wn. App. 2d 

at 303. Such abuse occurs when the trial court makes its decision based on untenable reasons or 

grounds. Id. Here, the trial court granted the entry of default under CR 37. 

Under CR 37(b)(2)(C), the trial court may enter default judgment against a party who 

fails to comply with a discovery order. To impose the harsh remedy of a default judgment, the 

trial court must determine on the record that the following three factors are met: “‘(1) the 

discovery violation was willful or deliberate, (2) the violation substantially prejudiced the 

opponent’s ability to prepare for trial, and (3) the court explicitly considered less severe 

sanctions.’” J.K., 20 Wn. App. 2d at 315 (quoting Teter v. Deck, 174 Wn.2d 207, 216-17, 274 

P.3d 336 (2012)). 

Where a party disregards a discovery order without providing a reasonable excuse or 

justification, our Supreme Court has held such disregard is willful. Magaña v. Hyundai Motor 

Am., 167 Wn.2d 570, 584, 220 P.3d 191 (2009). Subsequently, our Supreme Court noted that 

“[s]omething more” than a mere violation of a court order is needed to support a willfulness 

finding. Jones v. City of Seattle, 179 Wn.2d 322, 345, 314 P.3d 380 (2013). As to considering 

lesser sanctions, “[a] trial court should impose the ‘least severe sanction that will be adequate to 

serve the purpose of the particular sanction.’” J.K., 20 Wn. App. 2d at 321 (internal quotation 
No. 56934-5-II

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marks omitted) (quoting Magaña, 167 Wn.2d at 590). But sanctions should not be so negligible 

as to undermine discovery. Id. 

Here, the trial court was within its discretion to make an entry of default against Wade. 

Wade failed to challenge any factual findings. So, the trial court’s findings of fact in its ruling 

granting default are verities on appeal. The trial court determined on the record that Wade’s 

discovery violations were willful, that such violations substantially prejudiced Nelson’s ability to 

adequately prepare for trial, and that anything less than a default judgment would not motivate 

Wade to comply with the discovery orders. 

And the findings support all of the aforementioned determinations. As to willfulness, the 

following facts are verities: (1) plaintiff’s first discovery responses “were non-responsive, 

combative and, in some instances, insulting,” (2) Wade failed to comply with a CR 26(i) agreed

deadline to supplement his responses, (3) Wade subsequently failed to comply with a court order 

to that end, (4) Wade failed to pay $3,000 sanctions for his discovery violation, (5) Wade 

admitted to not attempting to obtain the contact information of his witnesses, despite the court 

order requiring him to do so, (6) Wade “has not done the bare minimum of providing contact 

information for his own witnesses,” (7) Wade lied under oath in a deposition, and (8) Wade 

“failed to make a reasonable attempt to provide adequate responses” to Nelson’s discovery 

requests. CP at 27-29. 

While Wade appears to maintain that he did not inadequately respond to Nelson’s 

discovery requests because they require witness identification “if known,” the trial court’s 

factual findings that Wade, in fact, violated its order and failed to adequately respond are verities 
No. 56934-5-II

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on appeal. The aforementioned evidence is certainly “something more” than a mere discovery 

order violation. Such evidence shows that Wade’s discovery violations were willful. 

As to prejudice, Wade had over 40 witnesses. Wade provided the address of only one 

witness and no phone numbers. Wade admitted to not attempting to gather the “contact 

information of at least 17 of his 41 witnesses.” CP at 30. By depriving Nelson of basic witness 

information, as well as other production requests, Wade substantially prejudiced Nelson’s ability 

to prepare for trial. 

As to lesser sanctions, the trial court determined additional contempt orders would be 

useless because

prior contempt sanctions, allowing for additional time to comply, as well as 

providing a monetary incentive to comply, have not motivated Defendant to comply 

with the Defendant’s discovery obligations, or demonstrated a willingness to 

comply with court orders. Furthermore, Defendant’s willingness to knowingly lie 

under oath at deposition demonstrates a complete disregard to the legal process and 

the administration of justice. There is no alternative for this Court than to Grant 

Plaintiff’s motion for default and strike Defendant’s responsive pleadings.

CP at 32. The trial court also determined that restricting Wade’s potential witness would not be 

an appropriate sanction because such a restriction would deny Wade the evidence he needs to put 

on his defense. 

In evaluating the restriction of witnesses, the court noted that it “understands that [Wade] 

does not have contact information for most, if not all, of his potential witnesses, only because he 

has not demonstrated any reasonable effort to get that contact information.” CP at 31-32. Given 

the trial court’s consideration of less severe sanctions and their shortcomings as well as Wade’s 

repeated and flagrant discovery violations, the trial court’s conclusion that lesser sanctions would 

not have been useful is not untenable. 
No. 56934-5-II

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Wade also contends that the trial court erred in granting Nelson’s motion for default 

because Wade submitted allegations of witness tampering. The record does not contain evidence 

of a hearing, ruling, or any court discussion related to the witness tampering allegation. Wade 

cites no authority to support the contention that a trial court may not enter default against a party 

who submitted evidence alleging witness tampering. RAP 10.3(a)(6); DeHeer v. Seattle PostIntelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (where a party fails to find authority to 

support their proposition, we are not are required to search out supporting authority). We decline 

to reach the merits of this argument. 

We hold that the trial court did not abuse its discretion by granting Nelson’s motion for

an entry of default. 

II. SETTING ASIDE DEFAULT JUDGMENT 

Wade appears to argue that the trial court erred in not setting aside the default judgment

because (1) he did not receive notice of the motion for default judgment and the related 

hearing—in violation of due process, (2) the service issues also warrant setting aside the 

judgment under CR 60, and (3) based on his analysis of the Eitel5factors We disagree. 

A. Due Process

In the default judgment context, “[d]ue process is satisfied . . . if, before entering a 

default judgment or dismissing a claim or defense, the trial court concludes that there was ‘a 

willful or deliberate refusal to obey a discovery order, which refusal substantially prejudices the 

opponent’s ability to prepare for trial.’” Smith v. Behr Process Corp., 113 Wn. App. 306, 330, 

 

5 Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986) (listing the factors trial courts should consider 

before entering default judgment under Fed. R. Civ. P. 55). We decline to consider this 

argument because these factors relate to default judgment in federal courts—not state courts. 
No. 56934-5-II

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54 P.3d 665 (2002) (internal quotation marks omitted) (quoting White v. Kent Med. Ctr., Inc., 

P.S., 61 Wn. App. 163, 176, 810 P.2d 4 (1991)). “Under most circumstances, notice sent by 

ordinary mail satisfies due process because it is deemed reasonably calculated to inform 

interested parties of an impending action.” Wash. Fed. Sav. v. Klein, 177 Wn. App. 22, 28, 311 

P.3d 53 (2013).

Here, Wade’s argument that service in this case violates due process fails because the 

trial court determined that Wade willfully refused to obey a discovery order and that refusal 

substantially prejudiced Nelson’s ability to prepare for trial in its entry of default order, and 

moreover, the notice of the proceedings was sent by mail. 

B. CR 60(b)

Wade provides cursory references to CR 60(b)(1), as well as CR 60(a) and CR 60(b)(4) 

in his appellate brief. In a latter portion of his brief, Wade argues, without citation to authority, 

service irregularities are a form of excusable neglect, which merits setting aside default 

judgment. Wade does not analyze the appropriate CR 60(b)(1) factors. Nor does Wade provide 

authority regarding improper service. 

Default judgment may be set aside under CR 60(b). CR 55(c)(1). CR 60(b)(1) provides 

that superior courts may relieve a party from a final judgment based on “[m]istakes, 

inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.” We 

review the trial court’s decision to vacate a default judgment for an abuse of discretion. Ha v. 

Signal Elec., Inc., 182 Wn. App. 436, 449, 332 P.3d 991 (2014). Default judgments are not 

favored in Washington. Id. at 446. 
No. 56934-5-II

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A party moving to vacate under CR 60(b)(1) must show that (1) there is substantial 

evidence supporting a prima facie defense, (2) the failure to timely appear and 

answer was due to mistake, inadvertence, surprise, or excusable neglect, (3) the 

defendant acted with due diligence after notice of the default judgment, and (4) the 

plaintiff will not suffer a substantial hardship if the default judgment is vacated. 

Id. at 448-49. The preceding factors do not constitute a mechanical test; the first two factors are 

the primary elements the movant must show, while the second two factors are less dispositive. Id. 

i. Mistake or Excusable Neglect

CR 5(a) generally requires service of pleadings. CR 5(a) does, however, provide, “No 

service need be made on parties in default for failure to appear.” “A party who has appeared in an 

action is entitled to notice of a default judgment hearing and, if no notice is received, is generally 

entitled to have judgment set aside without further inquiry.” Morin v. Burris, 160 Wn.2d 745, 754, 

161 P.3d 956 (2007). 

The notice requirement generally applies to the entry of default proceeding, not to the later 

default judgment proceeding. CR 55(a)(3); Conner v. Universal Utils., 105 Wn.2d 168, 172, 712 

P.2d 849 (1986); Pedersen v. Klinkert, 56 Wn.2d 313, 319-20, 352 P.2d 1025 (1960). Generally, 

once the trial court makes an entry of default, the defaulting defendant is not entitled to notice of 

the default judgment hearing. Conner, 105 Wn.2d at 172. However, Conner involved default 

judgment for failure to appear or answer under CR 55, not default judgment due to discovery order

violations under CR 37(b). 

Wade appeared in this action, and so, he was entitled to notice of the hearing for entry of 

default. It is uncontested that Wade received notice of the hearing for the entry of default. 

Indeed, Wade responded opposing the motion for default. And Wade appeared at the entry of 
No. 56934-5-II

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default hearing. So, he cannot challenge the underlying entry of default proceeding based on 

service grounds. 

As to notice of the default judgment hearing, Wade was in default for discovery 

violations, not for a failure to appear. So, CR 5 appears to require service of the default 

judgment proceedings on Wade. And Nelson conceded below that Wade was entitled to notice 

of the default judgment proceedings in this case. Thus, we assume, without deciding, that Wade 

was entitled to notice of the default judgment proceedings in this case. 

The plaintiff bears the initial burden to establish a prima facie case of proper service 

when the defendant challenges service of process. In re Dependency of G.M.W., 24 Wn. App. 2d 

96, 117, 519 P.3d 272 (2022), review denied, 1 Wn.3d 1005 (2023). The plaintiff may meet that 

burden by providing a service declaration—regular in form and substance—from the process 

server. Id. at 117-18. We presume that a facially correct service declaration is valid. Woodruff 

v. Spence, 88 Wn. App. 565, 571, 945 P.2d 745 (1997). 

Then, the burden shifts to the defendant to show clear and convincing evidence of 

improper service. G.M.W., 24 Wn. App. 2d at 118. Evidence is clear and convincing when it 

shows that the ultimate facts are “‘highly probable.’” Id. (quoting In re Parental Rights to 

K.M.M., 186 Wn.2d 466, 478, 379 P.3d 75 (2016)). 

The trial court may abuse its discretion by failing to hold an evidentiary hearing with live 

testimony to evaluate witness credibility when the challenge to an affidavit of service is 

supported by controverting affidavits as it presents an issue of fact. Woodruff, 76 Wn. App. at

210. However, Division One held that where a party challenging service did not appear at either 

of his motions to vacate default judgment, did not request a hearing to present live testimony, or 
No. 56934-5-II

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object to the trial court deciding the issue upon affidavits, the party waived the evidentiary 

hearing issue and the court may determine the matter on the affidavits. Leen v. Demopolis, 62 

Wn. App. 473, 478-79, 815 P.2d 269 (1991). 

Because Wade made no request to present live testimony and did not timely object to the 

trial court deciding the issue upon the affidavits, Wade waived any argument that the trial court 

had to decide the issue in an evidentiary hearing. Thus, the issue is whether Wade showed 

improper service by clear and convincing evidence based upon the affidavits. 

Here, Nelson met his initial burden to show service was proper by submitting the service 

declaration—regular in form and substance—alleging that the motion for default judgment and 

notice of the related hearing were served at Wade’s address for service of process, the restaurant. 

Wade presented (1) his own affidavit and affidavits from the general manager and executive chef 

at his address of record asserting that no filings had been delivered there from May 2021 to 

February 2022, and (2) Wade attached two mailings from Kitsap Law Group that were sent to 

Wade’s mother’s house. The two filings sent to Wade’s mother’s house are associated with 

garnishments—not the underlying default judgment. So, the mailings sent to Wade’s mother’s 

house are not determinative on this issue. 

The declarations from Wade, the executive chef, and the general manager are not 

sufficient to show improper service was “highly probable” in light of Nelson’s service

declaration to the contrary, which we presume is valid. Those affidavits do not establish who 

received mail at the address of record or more generally how mail is processed there or provide 

indicia that U.S. mail was handled at the restaurant in a manner indicating reliable processes 

were followed to effectuate service during that time period. They merely maintain that no filings 
No. 56934-5-II

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were received there in the relevant time period at Wade’s service address. Consequently, Wade 

failed to show improper service by clear and convincing evidence. 

As Wade cannot show improper service by clear and convincing evidence—his primary 

basis for setting aside the default judgment under CR 60(b)(1)—we hold that the trial court did 

not abuse its discretion by declining to aside its default judgment. 

III. AUTOMATIC DISMISSAL UNDER CR 41

Neither party appeared to have filed anything from April 6, 2020 to May 24, 2021. Wade 

argues that the superior court clerk should have automatically dismissed this matter under 

CR 41(b)(2) due to the lapse in filings. We disagree. 

CR 41(b)(2)(A) provides,

In all civil cases in which no action of record has occurred during the previous 12 

months, the clerk of the superior court shall notify the attorneys of record by mail 

that the court will dismiss the case for want of prosecution unless, within 30 days 

following the mailing of such notice, a party takes action of record or files a status 

report with the court indicating the reason for inactivity and projecting future 

activity and a case completion date.

CR 41(b)(2) allows the superior court to sua sponte purge dormant cases from its files. Miller v. 

Patterson, 45 Wn. App. 450, 455, 725 P.2d 1016 (1986). Only the clerk may make the motion to 

dismiss the case under CR 41(b)(2)—not a party. Id. A CR 41(b)(2) dismissal is mandatory 

only when the following conditions are met:

1. The clerk must mail the required notice to the attorneys.

2. No action of record in the case during the preceding 12 months.

3. No action of record, and no showing of good cause for continuing the case, within 

30 days following the notice.

Vaughn v. Chung, 119 Wn.2d 273, 278, 830 P.2d 668 (1992) (quoting Kirschner v. Worden 

Orchard Corp., 48 Wn. App. 506, 509, 739 P.2d 119 (1987). 
No. 56934-5-II

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Here, the clerk did not make a CR 41(b)(2) motion to dismiss the case. The clerk is not a 

party to the litigation. And the clerk did not mail the required notice to the attorneys, so 

dismissal was not mandatory in this case. 

CONCLUSION

We affirm. 

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

Che, J.

We concur:

Veljacic, A.C.J.

Price, J.