IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

US BANK N.A., and its successors in interest, Respondent,

MICHAEL E. HARKEY, Appellant, and Unknown Spouse or Domestic Partner Of Michael E. Harkey; Occupants ofthe premises; and any persons or parties claiming to have any right, title, estate lien, or interest in the real property described in the complaint. Defendants. NO. 71634-4-1 71635-2-1

DIVISION ONE

UNPUBLISHED OPINION1

FILED: July 27, 2015

Lau, J. — Michael Harkey appeals from various trial court orders denying his 

### motions challenging a 2011 default judgment entered against him in a declaratory relief and quiet title action filed by US Bank after a 2008 nonjudicialforeclosure on Harkey's 

### property. He also appeals various orders entered in the related unlawful detainer action.

1 No. 71634-4-1 involves Harkey's appeal challenging the defaultjudgment. No. 71635-2-1 involves Harkey's appeal of the related unlawfuldetainer action. We address both appeals inthis opinion.71634-4-1/2 71635-2-1
Because Harkey failed to timely appeal from the defaultjudgment, we affirmthe trial court orders and dismiss Harkey's appeals. FACTS The material facts are undisputed. In 2007, Michael Harkey borrowed $417,000 from U.S. Bank, N.A.,. To secure the loan, Harkey granted a deed oftrust on his Camano Island property. 

### Afterthree months, Harkey defaulted on the loan.2 OnApril 30, 2008, US Bank initiated a nonjudicial foreclosure. On December 8, 2008, the trustee sale was held. U.S. Bank successfully bid for 

### the property and tooktitle to the property bytrustee's deed, which it recorded on December 12, 2008, inthe Island County Auditor's Office. 

### In July2010, U.S. Bankfiled an actionin Island County Superior Courtto quiet title and for declaratoryreliefseeking 1) a declaratory judgment that the foreclosure sale
was valid and final, 2) to quiet title to the property, and 3) a declaratoryjudgmentthat 

### the deed of trust is prior to any other deed of trust, lien, orencumbrance. On January 

### 10, 2011,the superior court granted US Bank's motion for leave to serve Harkey by 

### publication afterHarkey could not befound for personal service of the summons and complaint. 

### OnApril 7, 2011, the superior court entered an ordergranting US Bank's motion for default against Harkey.



### 2Harkeyacknowledges that he made no payment due on January 1, 2008, or on any subsequent payments due.71634-4-1/3 71635-2-1 On May 3, 2011, nearly 29 months after the trustee's sale, the superior court entered a defaultjudgment against Harkey granting the relief US Bank requested in its 

### complaint for declaratory relief and quiettitle.3 On May 31, 2011, Harkey filed "motion to set aside defaultjudgment and to 

### suspend its operation" under CR 55, CR 60, and RCW4.28.200. Clerk's Papers (CP) at 421. On June 22, 2011, the superior court entered an order denying Harkey's motion 

### mainly because he failed to establish a prima facie defense to US Bank's claims. At the
same time, the trial court issued a comprehensive letter ruling explaining the grounds and rationale for its denial ofthe motion.4
3Harkey never sought to restrain the trustee sale. 4Afterthe court's June 22, 2011 order and letter ruling, Harkey filed a series of 

### pleadings and motions, including three moremotions to vacate the defaultjudgment. He does not appeal the orders denying these additional motions to vacate the default 

### judgment. This opinion addresses only the orders he designated in hisnotice ofappeal. Inthe court's March 20, 2012 letter to Harkey, the court summed up the state of 

### Harkey's multiple pleadings and motions directed atessentially challenging the May 3, 2011 defaultjudgment: On March 16, 2012, the court received what appear to be courtesy 

### copies of yourNotice for Special Hearing under CR 60(b) and RCW 59.18.380, Ex Parte Motion for Emergency Temporary Restraining Order re: Counter-Defendant's Motion of Default against Michael Harkey [sic]. 

### In reviewing the file in this case, the court notes that on December 1, 2011, you filed a document entitled Rule 60(b) Motion to Vacate 

### Judgment on Grounds of Fraud and Collusion/Conflict of Interest [sic]. On December 5, 2011, youfiled a document entitledPreliminary Lawsuit Counter/Cross Complaint Rule 60(b) Motion to Vacate Judgment on Grounds of Fraud and Collusion/Conflict of Interest [sic], a document 

### entitled Emergency Motion for Temporary Restraining Order; [TRO] Preliminary Injunction Requestfor Hearing [sic], and a document entitled Lis Pendens ByWrit of Attachment As an Offer of Evidence, ER 103 As an offer of Proof, ER 103(2), Mandatory Judicial Notice, ER 201 (d)(3)(f) 

### [sic]. On December 12,2011, you filed a documententitled Declaration of Counter Plaintiff re: Island County Sheriff's Dept. [sic]. On February 27, 

### 2012you filed a documententitled EMERGENCY COMPLAINT RE:71634-4-1/4 71635-2-1

Harkey did not appeal either the court's May 3, 2011 defaultjudgment order or its May 31, 2011 order denying motion to set aside the defaultjudgment. Harkey's 30 day time limit to file his notice of appeal from the May 3, 2011 defaultjudgment expired on June 2, 2011. On December 2, 2013, Harkey filed a motion to vacate the defaultjudgment 

### alleging the orders of default and defaultjudgmentwere "procured by fraud" and the court did not have the benefit ofseveral court opinions decided between 2012 to 2013.
CP at 148. On December 26, 2013, the superior court entered a comprehensive order 

### denying Harkey's motion to vacate default and default judgment. The court's order stated, in part, "The current motion is Michael Harkey'sfifth motion to vacate the default judgment." CP at 14. 

### On January 6, 2014, Harkey filed a motion for reconsideration under CR59(a)(1) and CR59(a)(7) requesting the trial court to reconsider"its rulings" because it lacked 

### subjectmatterjurisdiction overthe trustee's sale and theunlawful detainer action.5

FRAUDULENT FORECLOSURE ACTION involving M.E.R.S. SECURITIZATION T.R.O. re Writ of RESTITUTION ORDER TO SHOW CAUSE as an offer of Evidence, ER 103 As an Offer of Poof 103(2), 

### Mandatory Judicial Notice, ER201(d)(e)(f)[sic]. To the best of the court's 

### knowledge, these matters have never been presented to the court on the ex parte calendar or scheduled for a hearing in the court. CP at 280-381. 

### Throughoutthis litigation, Harkey has either represented himselfor he has retained at least four different law firms to represent him. 5 We address the unlawful detainer action below. -4-71634-4-1/5 71635-2-1 

### On February 19, 2014, the trial court denied Harkey's reconsideration motion.6 On March 5, 2014, Harkey, for the first time, filed a notice of appeal challenging the following orders: 1. [January 10, 2011] Order Authorizing Service by Publication 

### 2. [April 7, 2011] Order Granting Plaintiff'sMotion for Defaultas to Defendant Michael Harkey 3. [May 3, 2011 Default] Judgment 

### 4. [June 21, 2011][7' Order Denying Defendant's Motion to SetAside Default Judgment and To Suspend its Operations 

### 5. [December 26, 2013] Order Denying Motion to Vacate Default and Default Judgment 

### 6. [February 4, 2014] Order Denying Defendant's Motion to Reconsider 7. [February 19, 2014] Order Denying Defendant's Motion to Reconsider
CPat1-2. ANALYSIS Appealability 

### US Bank contends that Harkey's appeal ofthese orders is untimelybecause, 

### "Harkey failed tofile a notice of appeal until 34months afterfinal [default]judgmentwas entered against him. His appeal is untimely and must be dismissed." We agree. A default judgment was entered against Harkey on May 3, 2011. This 

### constituted a final appealable judgmentin the lawsuit which triggered the running ofthe 

### time period for Harkey tofile hisnotice ofappeal. RAP 2.2(a)(1). His appealdeadline expired on June 2, 2011. Harkey filed thefirst in a series ofmotions to set aside the defaultjudgment onMay 31, 2011, 28 days afterentry ofthefinal defaultjudgment. The trial court denied the motion on June 22, 2011. He filed neither a motion to


### 6 The February 19,2014 orderdenying reconsideration superseded the earlier 

### February4, 2014 orderdenying reconsideration. See US Bank's response brief, footnote 14. 

### 7This order was signed on June 21, 2011, butwas filed on June 22, 2011. -5-71634-4-1/6 71635-2-1
reconsider this order nor a notice of appeal. Instead, over several years, he filed four
more motions to set aside or vacate the defaultjudgment. Harkey's serial motions to set aside or vacate the defaultjudgment, whether styled as a motion to set aside the judgment or motion to reconsider, repeatedly asked forthe same remedy—to vacate the defaultjudgment.8 Generally, a notice ofappeal must be filedwithin the longer of 30 days after: (i) 

### entry of final judgment; or (ii) relevant here, motions made pursuantto CR 50(b), CR 52(b), or CR 59. RAP 5.2(a),(e). Harkey's first motion to set aside the defaultjudgment 

### filed on May 31, 2011, sought reliefbased on CR 55, CR 60, and RCW4.28.200. Thus, under (ii) above, Harkey's motionwas not one of the ones listed in RAP 5.2 that extends 

### the notice ofappeal time period. Therefore, this motion does nottoll the time period for filing his notice ofappeal challenging the default judgment. 

### The same analysis applies to Harkey's appeal of the trial court's December 26, 2013 order denying his December 2, 2013 motion to vacate the default and default judgment. That motion, filed five years after the trustee sale and nearly three years since the default judgment was entered, relied exclusively on various provisions under CR 60(b). Just as in his May31, 2011 motion, Harkey's December 2, 2013 motion was not one ofthe ones listed in RAP 5.2 that extends the notice of appeal time period.



### 8Arguably, Harkey's serial repetitious motions to vacate the default judgment are insubstance untimely motions to reconsider the defaultjudgment order. Witheach 

### motion challenging the default judgment, Harkey raised new claims and new theories. On a motion forreconsideration, a party may not propose new theories of the case that could have been raised before entry of the adverse decision. See Wilcox v. Lexington Eve Institute, 130 Wn. App. 234, 241, 122 P.3d 729 (2005). -6-71634-4-1/7 71635-2-1 Harkey relied on CR 60 in his May 31, 2011 and December 2, 2013 motions to vacate/set aside the defaultjudgment. Under CR 60(b), a court may relieve a party from a finaljudgment, order, or other proceeding in limited situations provided inthe rule. The purpose ofthe rule is to protect against injustices based on "reasons extraneous to the action ofthe court or for matters affecting the regularity of the proceedings." State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982). We review the trial court's decision on a CR 60 motion for an abuse of discretion. Stanlev v. Cole, 157 Wn. App. 873, 879, 239 P.3d 611 (2010). "A trial court abuses its discretion when 

### its decision is manifestly unreasonable or based on untenable grounds." Stanlev, 157 

### Wn. App. at 879. We may affirm the trial court on any basis supported by the record. Ha v. Signal Elec. Inc., 182 Wn. App. 436, 446, 332 P.3d 991 (2014). Itis well settled that an appeal from the denial of a CR 60(b) motion is not a 

### substitute for an appeal and is limited to the propriety of the denial, not the impropriety 

### of the underlying order. In re Dependency ofJ.M.R., 160Wn. App. 929, 938 n.4, 249 P.3d 193 (2011). In other words, an unappealed final judgment cannot be restored to 

### an appellate track bymoving to vacate the judgmentand then appealing the denial of that motion. State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). This is so 

### because the "exclusive procedure to attack an allegedly defectivejudgment is by appeal 

### from the judgment, not by appeal from a denial of a CR 60(b) motion." Biurstrom v. Campbell, 27 Wn. App. 449, 451, 618 P.2d 533 (1980). 

### Nor may Harkeyrevive his appeal right merely by repeatedly filing motions to vacate/set aside the defaultjudgment and then filing motions to reconsider raising new claims and theories with each new motion. As the trial court observed when Harkey71634-4-1/8 71635-2-1
filed his fifth motion to vacate the defaultjudgment, "the [December 2, 2013] motion is Michael Harkey's fifth motion to vacate the defaultjudgment entered on May 3, 2011." The court properly recognized that "the law does not permit piecemeal motions, such as . . . five separate motions to vacate." CP at 16. 

### Harkey concedes that piecemeal litigation should be "avoided," but argues nonetheless, that under the circumstances he should not "be faulted by raising his 

### issues when he raised them."9 Br. of Appellant at 35.10 He cites no controlling 

### authority, under the unique circumstances presented here, that sanctions the practice of filing repeated serial motionsattacking the merits of a default judgment years after the timefor appeal expired. We decline to consider arguments unsupported bycitation to 

### authority.11 RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Boslev, 118Wn.2d 801, 809, 828 P.2d (1992). 

### Harkey filed hisnotice of appeal onMarch 4, 2014nearly three years afterthe trial courtentered a default judgment against him. Because none of his subsequent 

### motions challenging the defaultjudgmenttolled, extended, orrevived the time period for filing a notice ofappeal, his appeal is time barred. 

### Harkey also argues that thetrial courtlacked subject matterjurisdiction to enter 

### thedefaultjudgment because it was based on an invalid trustee's sale. He ismistaken. 

### Subject matterjurisdiction is a court's authorityto adjudicate a type ofcase involved in

9The record is silent as to Harkey's rationale for notfiling a timely notice of appeal challenging the defaultjudgment. 

### 10 Harkey cites Lenk v. Dep'tofLabor &Indus., 3Wn. App. 977, 986, 478 P.2d 761 (1970), for this proposition. This case is not applicable. 11 Given our resolution, we need not address Harkey's remaining contentions. -8-71634-4-1/9 71635-2-1

an action. Buecking v. Buecking, 179 Wn.2d 438, 447-48, 316 P.3d 999 (2013). The Washington Constitution provides that the superior court has original jurisdiction in "all
cases at law which involve the title or possession of real property. . .." Const, art. IV, § 6. The present matter involves a dispute involvingthe title or possession of real 

### property. Thus, the superior court had subject matterjurisdiction in this case. This claim fails.12 Unlawful Detainer Action (No. 71635-2-1) 

### Harkeydevotes twoparagraphs in his briefto an unlawful detainer actionfiled by U.S. Bank. He makes two briefarguments: (1) a challenge to the "John Doe" 

### designation even though U.S. Bank knew his name, and (2) the foreclosure was improper, so the unlawful detainer action is invalid. 

### During the foreclosure litigation, U.S. Bankinitiated unlawful detainer 

### proceedings in December2011 to eject any tenantsfrom theforeclosed property. It unsuccessfully attempted to personally serve Harkey with the summons and complaint between October 26, 2011, and November 2, 2011, at the property. On December 8, 2011, U.S. Bank filed the summons and complaint in Island 

### County Superior Court and moved for permission to serve by publication. Its motion stated that it had attempted service at the property on sixseparate occasions. The motion stated that the summons and complaint had been mailed to the property and 

### posted at the property address. In the complaint, U.S. Bank stated that"[t]he

12 The subject matterjurisdiction claim alsofails because his appeal challenging the trustee sale is untimely and he failed totimely exercise the statutory remedies available under RCW 61.24.71634-4-1/10 71635-2-1 defendants occupying the subject property are believed to be tenants ofthe former owner, MICHAEL HARKEY." CP at 338. The complaint named "Jane Doe, John Doe, AND ALL OCCUPANTS OF THE PREMISES LOCATED AT 48 Thunder Road, Camano Island, WA 98282." CP at 338. The following day, on December 9, the court authorized service by publication. The court granted U.S. Bank's motion for default and issuance of a writ of restitution on February 3, 2012. 

### Harkey filed simultaneous motions to set aside the defaultjudgment in both the 

### quiet title and unlawful detainer proceedings.13 The trial court denied Harkey's motions in its December 26, 2013, order discussed above. 

### Harkey argues that "naming defendant 'John Doe' though [U.S. Bank] knew 

### Harkey's name and interest was unreasonable on its face." Br. ofRespondent at 36. He cites to Bresina v. Ace Paving Co., Inc., 89 Wn. App. 277, 282, 948 P.2d 870 (1997) 

### but provides no discussion or analysis of that case. Harkey also fails to discuss why the "John Doe" designation was improper under the circumstances. We generally do not consider arguments that are unsupported by pertinent authority, references to the 

### record, or meaningful legal analysis. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments not supported by authority); Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (issues unsupported by adequate argument and authority).

13 This motion is not included in the record for case No. 71635-2-1, but appears in the record for the quiet title action discussed above. -10-71634-4-1/11 71635-2-1
Our resolution inthe quiet title appeal disposes of Harkey's challenge to the unlawful 

### detainer action premised on an alleged impropertrustee's sale.14 CONCLUSION For the reasons discussed above, Harkey's appeal is untimely as to his quiet title 

### appeal, No. 71635-2-1 and his unlawful detainer appeal, No. 71634-4-1. We affirm the trial court orders and dismiss Harkey's appeal.

WE CONCUR: 

# ^HOQ^Qr Dfcfe^,

14 Harkey acknowledges that the unlawful detainer briefisidentical to thebriefhe filed in the quiet title appeal. -11-