IN THE COURT OF APPEALS FORTHE STATE OFWASHINGTON

MUSTAFA IDRIS, No. 78145-6

Respondent, DIVISION ONE
V. GENESIS CHIROPRACTIC GROUP L.L.C., aWashington State Corporation, and MASUD HASAN and JANE DOE UNPUBLISHED OPINION HASAN, Defendants, GIRMAAYELE and JANE DOE AYELE,

Appellants. FILED: August 5, 2019
ANDRUS, J.

—GirmaAyele appeals a defaultjudgmententered against him. He contendsthetrial courtfailed to properly applyCR 60when itdenied his motion to vacate an order ofdefault. Although Ayele, who is representing himself in this appeal, has cited the incorrect court rule governing the basis for reversal, we nevertheless conclude we cannot overlookthe key procedural error in this case— the trial court erroneously entered an orderofdefault againstAyelewithout notice to him. We therefore reverse the order of default and defaultjudgment against Ayele and remand. FACTS Ayele and Masud Hasan managed a chiropractic business, GenesisNo. 78145-6-112

Chiropractic L.L.C.1 Ayele and Hasan agreed to pay Mustafa Idris $3,000 a month, in two equal payments, to treat chiropractic patients at Genesis. Ayele and Hasan also agreed to pay Idris an additional 50 percent ofall payments Genesis received for patients that Idris broughtto Genesis. Idris treated patients at Genesis between November 10, 2014 and March 27, 2015. In those four months, he received four checks—one was returned for insufficient funds and another was for less than half of the agreed biweekly amount. Genesis never paid him for his Januarywork. Idris complained about not being paid on time and could not get a straight answerfrom Ayele or Hasan on whowas in charge of issuing his checks. He finally learned therewere insufficient funds to pay him. He stopped treating patients at Genesis on March 27, 2015. Idris sued Ayele, Hasan, and Genesis for breach of contract, unjust enrichment, promissory estoppel, negligent misrepresentation, and Consumer Protection Act2violations in November2015. He alleged hewas owed $13,274.29 in damages for unpaid services rendered while Idris treated patients at Genesis’ facilities. He sought the entry ofajudgment forthis sum certain, plus costs, and attorneyfees. ldris served Hasan and Genesis on November7, 2015. Idris served Ayele, whowas inAfricaatthetime Idrisfiled his complaint, on December9, 2015. Hasan filed a pro se notice ofappearance on December2, 2015, and Ayelefiled a pro se notice ofappearance on December29, 2015.

NeitherHasan norGenesis are parties to this appeal and are mentioned only in sofaras their involvement in the underlying matter is necessaryto explain Ayele’s appeal.

2 Chapter 19.86 RCW. -2-No. 78145-6-1/3 On December 17, 2015, Idris filed a motion for orders of default against Hasan and Genesis with the assigned judge, who elected to refer the matter to King County Superior Court’s Ex Parte Department.3 On January6, 2016, a court commissioner in the Ex Parte Department denied the motion because it was unclearwhether Hasan’s notice ofappearance was on his own behalforon behalf of Genesis, an LLC. Because Hasan was not a memberofthe Washington State Bar, the commissioner concluded Hasan could not represent Genesis and instructed Idris’s counsel to note the motion fora hearing. As instructed, Idris refiled his motion for orders of default against all defendants on January7, 2016,~ and noted the motion fora hearing beforethe Ex Parte DepartmentforJanuary 20, 2016. He served all three defendants with the notice of court date, the motion, and all the supporting documentation. In this motion, Idris acknowledged that Hasan and Ayele had filed notices ofappearance but stated correctlythatthey had failed to answerthe complaint. Forreasonsthatare unclearfrom the record, acommissionerentered Idris’s orders ofdefaultagainstAyele and Genesisthevery nextday, on January8, 2016. The commissionerdenied Idris’s motion against Hasan because of Hasan’s notice of appearance. Again, the commissioner informed Idris’s counsel he needed to

~The assignedjudge may refera motion fordefaultto the Ex Parte Department, even ifa party has appeared. The parties will advise the commissionerthatthe assignedjudge referred the motion tothe Ex Parte Department. ~ KING COUNTY, WASH., DEPTOFJUDICIALADMIN., Ex PARTE MOTIONS & HEARINGS MANUAL § lIe. (rev. Dec. 24, 2015), available at https:Ilwww.kingcounty.~ov/—/media/courts/Clerk/docs/misc/ExParteMotjonsHearingsManual.ash x?la~en.

~ Ayele points out that he was not included in the first motion for an order of default that Idris filed. This fact is of no consequence here. Hasan and Genesis were served before Ayele. Thus, when Idris had to refilethe motion, he properly included Ayele in that motion because, atthat point, 20 days had elapsed since he served Ayele. -3-No. 78145-6-1/4

note the motion for a hearing and provide notice to Hasan. Given thatAyele had alsofiled a notice ofappearance bythis time, it is unclearfrom the record whythe commissionerdid nottreat Idris’s motion againstAyele inthe same manner. While Ayele had notice of the January 20, 2016 hearing date, he was unaware that a commissioner intended to rule ex parte on Idris’s motion for an order of default before that date. When counsel for Idris learned that his motion for an order of default had been granted as againstAyele but notas against Hasan, he did not bring this error to the court’s attention. Instead, he moved forentry ofa defaultjudgment against Genesis on January 13, 2016, which a commissioner granted and entered on January 14, 2016. He alsofiled and served a motion fordefaultjudgment against Ayele on January 19, 2016. A commissioner denied this motion on January 20, 2016, because it was supported only by Idris’s counsel’s declaration, not by the declaration oraffidavit ofa person with actual knowledge. Ayele, assuming a hearing on Idris’s motion would occur on January 20, 2016, filed a response to the motion on January 19, 2016. In this declaration, he testified that Idris’s counsel had misrepresented, in his motion, that none of the defendants had communicated with him after serving the complaint. Ayele represented that he had been communicating with Idris’s counsel since December 24, 2015, in an attemptto resolve the claims through mediation, orabsent that, to requesttime to retain counsel for Genesis. He challenged the authenticity ofthe checks Idris had attached to the complaint, asserting that they did not match any

-4-No. 78145-6-1/5

checks that Genesis had written to Idris. Ayele asked the courtto denythe motion foran orderofdefault and allow him time to answerthe complaint. Counsel for Idris, knowing the court had already entered default orders on January 8, 2016, assumed the January20, 2016 hearing had been stricken bythe Ex Parte Department. But the hearing on Idris’s motion for orders of default apparently remained on the court’s calendar. Ayele appeared in person for the hearing; a commissioner attempted to reach Idris’s counsel by phone, and when the commissioner received no answer to his call, he struck the hearing. The commissionerdid nottell Ayele that an order ofdefault had already been entered. Ayelefiled an answeronApril 12, 2016. In this answer, Ayeledenied liability and pleaded unclean hands, a failure to mitigate, and the fact that payment had been made to Idris to which Ayele was entitled to an offset. Thus, within three months of the entry of the order of default, Ayele disputed the amount owed to Idris. Between April and June 2016, the parties engaged in discovery and settlement negotiations in an attemptto settle the case. Atthe end ofJune 2016, apparently when the parties hit an impasse in their negotiations, counsel for Genesis moved tovacatethe orderofdefaultand defaultjudgmententered against it, and Ayele moved tovacatethe default orderentered against him. Ayele argued that he and Idris’s counsel had corresponded before Idris filed the motion for default, contradicting Idris’s counsel’s representation that none ofthe defendants had attempted to communicatewith him. He pointed outthe procedural errorthat had occurred in January when the commissioner entered the order of default 12

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days before the motion had been noted fora hearing. Although Ayele challenged the procedure by which Idris obtained his orders ofdefault, he did not submit any evidence challenging Idris’s claims. In opposing these motions, ldris submitted a detailed declaration identifying the agreement he had reached with Ayele and Genesis, the monies he had been paid, the payments he was owed, the checks he had received from Genesis, and the patients he had treated for Genesis. At oral argument on the motions to vacate on July 29, 2016, the trial court acknowledged that Idris had originally noted the default motions for a hearing on January 20, 2016, and had provided notice to all three defendants. It also recognized that, unbeknownstto Idris, a commissionerentered the default orders
on January 8, 2016, prior to the scheduled hearing date. It nevertheless denied Ayele’s motion to vacate the order of default,5 finding Ayele had waited eight months to bring the motion and, thus, had failed to demonstrate due diligence in seeking to vacate the order of default. The trial court also found Ayele had presented no meritorious defense to Idris’s allegations. Between September 2016 and January 2018, the case appears to have made no progress toward resolution.6 Despite the existence ofan answeron file, Idris moved for entry of a default judgment against Ayele on January 31, 2018. Idris’s motion was based solely on the complaint and the declaration of counsel.

~ The trial court also denied Genesis’ motion to vacate the defaultjudgment.
6The lengthydelay is due, in part, toAyele’s unsuccessful appeal ofthe 2016 orders, which this court dismissed when, after several extensions, Ayele failed to file an opening brief. Ayele’s first appeal is immaterial to this appeal as an order of default is an interlocutory order, from which an immediate appeal ordinarily cannot be taken. 4 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTIcE CR 55 author’s cmt. 18, at 360 (6th ed. 2013). -6-No. 78145-6-1/7

Idris’s counsel did not resubmit Idris’s declaration with the motion, despite having previously been denied the same request for relief because of a lack of evidence from someone with personal knowledge ofthe allegations in the complaint. Nor did Idris alertthe courtto the factthatAyele had filed an answerto the complaint challenging the amount Idris sought as damages. The court initially denied the motion as having been improperly noted for the Ex Parte Department and instructed Idris to resubmit the motion to the assignedjudge. The assignedjudge considered Ayele’s opposition to the motion, which focused on alleged procedural defects. Ayele did not present factual evidence to dispute the requested damages. The assigned judge granted the defaultjudgment on February22, 2018. Ayele appeals. ANALYSIS Ayele’s notice of appeal seeks review of the defaultjudgment entered on February22, 2018. In his brief, Ayele assigns asingle error: “Thetrial courtabused its discretion in failing to utilize CR 60 as a mechanism to determine the balance between finality and fairness in issuing its default judgment against Appellant.” Ayele’s briefing, however, focuses on the trial court’s decision to deny his motion tovacate the orderofdefault. Ayele appears to confuse the default orderentered in January 2016, and his efforts to vacate that order, with the default judgment entered in February2018. We recognize that Ayele is representing himself in this appeal. Although pro se litigants are held to the same rules ofappellate procedure and substantive

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law as attorneys, Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997), we havethe discretion to construe his assignments oferror liberally, RAP 1 .2(a) (“These rules will be liberally interpreted to promote justice and facilitate the decision of cases on the merits. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands

. . . .“); see also Reichelt v. Raymark Indus., Inc., 52 Wn. App. 763, 765, 764 P.2d 653 (1988). Idris has responded to Ayele’s arguments relating to the 2016 order denying the motion to vacate the default order. The parties thus appearto agree that the scope ofthe appeal encompasses both the default orderand the defaultjudgment. ~ State
v. Olson, 126 Wn.2d 315, 318-24, 893 P.2d 629 (1995) (court can consider issue
on appeal, notwithstanding technical violation of procedural rules, when nature of challenge has been made clearwithout prejudice to opposing party). Furthermore, related orders that “prejudicially affected” the designated decision and were entered before an appellate court accepts revieware subjectto potential review. Clark County v. W. Wash. Growth Mgmt. Hearings Review Bd., 177 Wn.2d 136, 145, 298 P.3d 704 (2013) (quoting In re Dependency of Brown, 149Wn.2d 836, 840 n.2, 72 P.3d 757 (2003)); see also RAP 2.4(b). OurSupreme Court has clarified that “prejudicially affects” means that the order appealed from would not have happened but for the first order. Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 380, 46 P.3d 789 (2002). Here,
we will address Ayele’s arguments regarding the trial court’s denial of his motion to vacate the 2016 default order, even though not identified in the notice ofappeal

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or specifically identified in any assignment of error, because the 2018 default judgmentwould not have happened butforthe 2016 default order. Reaching the merits of the appeal, the Civil Rules provide different standardsforvacating orders ofdefaultand defaultjudgments. CR55(c)(1), 60(b);
see also In re Estate of Stevens, 94 Wn. App. 20, 30, 971 P.2d 58 (1999). Thus, CR 60(b)(4) does not apply to Ayele’s motion to vacate the default order, and Ayele’s reliance on that rule is misplaced. We review a trial court’s decision on a motion to vacate a default orderfor
an abuse of discretion, which will not be found unless it plainly appears the trial court “exercised its discretion on untenable grounds orfor untenable reasons, or thatthe discretionary actwas manifestly unreasonable.” Stevens, 94 Wn. App. at 29. While our review is for an abuse of discretion, “[ojur primary concern’ is to
ensure that the trial court’s decision was ‘just and equitable.” Durvea v. Wilson, 135 Wn. App. 233, 237-38, 144 P.3d 318 (2006) (alteration in original) (quoting Showalterv. Wild Oats, 124 Wn. App. 506, 510, 101 P.3d 867 (2004)). An order of default may be vacated upon a showing of good cause. CR 55(c)(1); see also Stevens, 94 Wn. App. at 30. Good cause may be established by demonstrating excusable neglect and due diligence. Stevens, 94 Wn. App. at 30. CR 55(c)’s good cause standard is deliberately vague to allow courts discretion to make rulings based on the particular circumstances of the case at hand. See 4 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRAcTIcE CR 55 author’s cmt. 20, at 362 (6th ed. 2013).

-9-No. 78145-6-1/10 Here, it was the court who mistakenly granted a motion that was not properly before it. Itwas notAyele’s faultthatthe court entered the default order without his knowledge and in a manner inconsistentwith court rules and basicdue process. Idris had calendared his motion for a hearing with the court on January 20, 2016. Yet, the record contains no explanation for why, after ordering ldris’s counsel to note the default motion for a hearing, the court then granted the same motion without a hearingjust days later. The commissionerdenied the motion for the orderofdefaultagainst Hasan because he had entered a notice ofappearance but did not do the sameforthe motion againstAyele, even though Ayele had also filed a notice of appearance. We can only assume the commissioner simply overlooked the notice ofappearanceAyele had filed, the priororder requiring ldris to note the motion fora hearing, and the hearing notice Idris’s counsel had filed. The trial court was on notice ofthese court errors and nevertheless found that Ayele did not exercise due diligence because he waited eight months to file his motion to vacate the order of default. But in fact, Ayele filed the motion five months, not eight months, later. The default order was entered in mid-January, and he moved to vacate it at the end ofJune. In the interim, Ayele not only filed
an answer, he also continuously negotiated with ldris’s counsel to 

### tryto settle the matter. And Idris’s counsel was certainly aware that he obtained his order of default against Ayele in error, and he took no steps to bring this error to the attention ofthe court. Moreover, bythe time Ayele did have a chance to present his case before the assigned judge, he had filed an answer, contesting the sum of money Idris

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sought and challenging the authenticity of the checks Idris identified in the complaint as having issued from Genesis. There is nothing to suggest that the passage oftime impaired Idris’s abilityto prosecute his claim against Ayele. We cannot find sufficient evidence to support the trial court’s finding that Ayele failed toexerciseduediligence, and we concludethetrial court’sdecisiontodenyAyele’s motion to vacate the default orderwas neitherjust norequitable. When thetrial court improperlyenters adefaultorder—in otherwords, when the defendant was not truly in default—then the defendant need not make the showing required7to setaside ajudgment. Durvea, 135Wn. App. at238. Instead, the defendant is entitled to havethe defaultjudgmentsetaside as a matterofright, with no required showing ofa meritorious defense. ki. Because we conclude the entry ofthe default orderwas an abuse ofdiscretion, Ayele is entitled to vacation ofthe defaultjudgment. Reversed and remanded.

I A~. ~.‘
- WE CONCUR:


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~ To vacate a defaultjudgment a party must show excusable neglect, due diligence, a meritorious defense, and no substantial hardship to the opposing party. CR 60(b); seealso White v. HoIm, 73Wn.2d 348, 352, 438 P.2d 581 (1968). -ii-