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COURT CSE APPEALS

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IN THE COURT OF APPEALS OF THE STATE OF WASHING

DIVISION II

EDWARD H. PIETZ, dba EP PROPERTIES, 

V. 

ROBERT T. FIREBAUGH, 

Respondent, 

ant. 

No. 41866 -5 -II

UNPUBLISHED OPINION

MAxA, J. — Robert Firebaugh appeals the trial court' s denial of his motion to vacate a

confession ofjudgment that he executed in a civil lawsuit arising from his alleged embezzlement

of funds from Edward Pietz. The confession ofjudgment recited that it would " not be

admissible for any other purpose or as an admission of liability in any other case." Clerk' s

Papers ( CP) at 20. Firebaugh argues that despite this language, the confession ofjudgment

would be admissible in a subsequent criminal case. Therefore, he `argues that the confession of

judgment was based on a mutual mistake, and that vacation of the confession ofjudgment is

justified under CR 60( b). 

We hold that the evidence supports findings that ( 1) Firebaugh did not make the type of

mistake that would support vacation of a confession ofjudgment under CR 60(b)( 1), ( 2) Pietz

did not make any mistake, and ( 3) Firebaugh had no basis for vacating the confession of

judgment under CR 60( b)( 11). Accordingly, we affirm the trial court' s denial of Firebaugh' s

motion to vacate the. confession ofjudgment. 
41866 -5 -II

FACTS

Pietz sued Firebaugh in October 2009 asserting embezzlement and other claims. Pietz

alleged that while Firebaugh was acting as his accountant, Firebaugh misappropriated money

from Pietz in various ways. Firebaugh denied the allegations and asserted counterclaims against

Pietz. 

In December 2010, Firebaugh executed a confession ofjudgment in order to resolve the

claims against him. The confession ofjudgment stated that Firebaugh confessed judgment and

consented to the entry -of a judgment in favor of Pietz in the amount of $1, 552,492.71 in order to

resolve all claims against him in Pietz' s case. In the confession ofjudgment, Firebaugh

stipulated that Pietz " could and would prove the allegations in the complaint ... by a

preponderance ofthe evidence in a civil trial." CP at 18. 

The confession ofjudgment recited that it would not be admissible in any other case: 

This document is for the purposes of settling and resolving all the civil claims

herein and shall not be admissible for any other purpose or as an admission of

liability in any other case, pursuant to the Rules of Evidence (ER) in any other

proceeding ... Firebaugh expressly reserves the right to assert any and all

defenses, he may have against Edward Pietz and EP Properties in and only in the

event that any criminal prosecution is commenced against him arising out of the

facts of this case. 

CP at 20. At the hearing to approve the confession ofjudgment, counsel for Pietz agreed that the

parties stipulated that any admissions in the confession were made only as to the civil case. 

The trial court subsequently engaged in a discussion with Firebaugh, during which

Firebaugh confirmed that he had discussed the terms of the confession ofjudgment with his

attorney, that he understood that he would be bound by its terms, and that he agreed to be bound

by those terms. The trial court then signed the confession ofjudgment. 

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After.retaining new counsel, Firebaugh made a motion to vacate the confession of

judgment under CR 60(b) on the grounds of mutual mistake. Firebaugh submitted a declaration

stating that ( 1) he did not understand the contents of the confession ofjudgment or the legal

effect ofhow it would apply to criminal charges, ( 2) he did not know that the confession of

judgment would be admissible in a criminal case if charges were filed, and ( 3) he had been

informed that the confession ofjudgment would be inadmissible in any further proceedings. The

court denied the motion to vacate. 

Firebaugh appeals. 

ANALYSIS

Firebaugh argues that the trial court erred in denying his motion to vacate his confession

ofjudgment. He claims that both parties mistakenly believed, as stated in the confession of

judgment, that the confession would not be admissible in a criminal case if charges subsequently

were filed against Firebaugh. He argues that based on this mistake, the trial court should have

vacated the confession ofjudgment under CR 60( b)( 1) and ( 11). 1 We disagree because the

evidence supports the trial court' s ruling, in the exercise of its discretion, that Firebaugh was not

entitled to relief under CR 60(b). 

A. VACATION OF JUDGMENT UNDER CR 60(b) 

CR 60( b) provides in part that a court may relieve a party from a final judgment, order, or

proceeding for one of 11 stated reasons. One reason under CR 60( b)( 1) is a mistake in obtaining

1 Firebaugh also states in his brief that the trial court should have vacated the confession of

judgment under CR 60( b)( 5), which allows for the vacation of void judgments. However, he

makes no argument that the confession ofjudgment was void. Therefore we do not address this

issue. See West v. Thurston County, 168 Wn. App. 162, 187; 275 P. 3d 1200 ( 2012). 

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a judgment or order. Another reason under CR 60(b)( 11) is "[ a] ny other reason justifying relief

from the operation of the judgment." 

Generally, we review a trial court' s ruling under CR 60(b) for an abuse of discretion. 

Tamosaitis v. Bechtel Nat., Inc., 182 Wn. App. 241, 254, 327 P. 3d 1309 ( 2014). Therefore, the

trial court' s decision will not be overturned on appeal absent a manifest abuse of discretion. In

re Marriage ofNewlon, 167 Wn. App. 195, 199, 272 P. 3d 903 ( 2012). We will find an abuse of

discretion only ifthe trial court' s exercise of discretion was based on untenable grounds or made

for untenable reasons. Id. 

B. MUTUAL MISTAKE

Firebaugh argues that the trial court should have vacated his confession ofjudgment

because it was based on the mistaken belief of both parties that the confession ofjudgment

would not be admissible in a subsequent criminal case. We reject this argument because the

evidence supports a ruling that neither Firebaugh nor Pietz made a mistake regarding the

confession ofjudgment that supported relief under CR 60(b)( 1). 

1. Rules for Consent Judgments

Many cases regarding a claim of mistake under CR 60(b)( 1) involve default judgments. 

In that context, a party requesting relief must show that the judgment was entered as the result of

a unilateral mistake. See Ha v. Signal Elec., Inc., 182 Wn. App. 436, 453, 332 P. 3d 991 ( 2014). 

However, this case involves a confession ofjudgment, which is authorized by statute and

is designed to resolve disputes among willing parties. See RCW 4.60. 050. A confession of

judgment requires the consent of both parties to the judgment. Pederson v. Potter, 103 Wn. App. 

62, 68, 11 P. 3d 833 ( 2000). As a result, such a judgment by consent can be vacated under CR

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60(b)( 1) based on a mistake only ifthere has been a mutual mistake. Haller v. Wallis, 89 Wn.2d

539, 544- 45, 573 P. 2d 1302 ( 1978). In addition, our Supreme Court in Haller stated that two

types of "mistakes" do not support vacating a consent judgment: ( 1) an error or misapprehension

of the parties or their counsel, and ( 2) erroneous advice of counsel pursuant to which. the

judgment was entered. Id. at 544. 

2. No CR 60( b)( 1) Mistake by Firebaugh

The threshold issue under CR 60( b)( 1) is whether Firebaugh made the type of mistake

that would support vacation of a judgment. Firebaugh provided no evidence of such a mistake. 

Firebaugh claims that he did not understand the legal effect of the confession ofjudgment

as it applied to possible criminal charges and that he was misinformed that the confession of

judgment would not be admissible in a subsequent criminal case. However, the mistake

Firebaugh alleges is the type of mistake the court in Haller expressly stated does not support

relief under CR 60(b)( 1). 89 Wn.2d at 544. The evidence supports a finding by the trial court in

an exercise of its discretion that Firebaugh' s motion to vacate was based only on a

misapprehension of the confession ofjudgment or on erroneous advice of counsel, neither of

which supports relief under CR 60( b)( 1). 

We hold that based on the evidence in the record, the trial court did not abuse its

discretion in denying Firebaugh' s motion to vacate the confession ofjudgment under CR

60( b)( 1) based on his alleged misunderstanding of the effect the confession ofjudgment had on

any subsequent criminal proceedings. 
41866 -5 -II

3. No Mistake by Pietz

As stated above, in order to vacate a judgment based on consent under CR 60(b)( 1), a

party must show a mutual mistake. Haller, 89 Wn.2d at 544. Firebaugh presented no evidence

that Pietz was mistaken regarding the effect the confession of a judgment had on subsequent

criminal proceedings. 

Again, Firebaugh points to the statement in the confession ofjudgment that it would not

be admissible in any other case. However, Firebaugh submitted no evidence regarding how Pietz

interpreted this language. Pietz may have understood that this language provided that the

confession ofjudgment would not be admissible only in other cases involving the parties, or may

have understood that the confession ofjudgment would be admissible in a subsequent criminal

case despite this language. Conversely, Pietz may have believed that Firebaugh' s agreement that

Pietz could prove the allegations in the complaint by a preponderance of the evidence in a civil

trial would not be admissible in a subsequent criminal trial where guilt must be proven beyond a

reasonable doubt. 

Firebaugh did not supply the trial court with any evidence that Pietz made a mistake with

regard to the confession ofjudgment. Accordingly, we hold that Firebaugh is not entitled to

relief from the confession ofjudgment under CR 60(b)( 1). 

C. ANY OTHER REASON JUSTIFYING RELIEF

Firebaugh argues that the confession ofjudgment should be vacated under CR 60(b)( 11) 

because he did not understand the legal effect of the confession ofjudgment and its admissibility

in a criminal case. We disagree. 
41866 -5 -II

CR 60(b)( 11) is a catch- all provision authorizing judgments to be vacated for any other

reason justifying relief. The use of this provision is confined to situations involving

extraordinary circumstances not covered by any other section of the rule. In re Marriage of

Furrow, 115 Wn. App. 661, 673, 63 P. 3d 821 ( 2003). 

Firebaugh does not provide any argument regarding the applicability of CR 60(b)( 11) 

under these facts. Firebaugh also does not cite to any authority for the proposition that purported

ignorance of the legal consequences of a confession ofjudgment constitutes extraordinary

circumstances. Accordingly, we hold that Firebaugh failed to establish extraordinary

circumstances warranting relief under CR 60( b)( 11). 

We affirm the trial court' s denial of Firebaugh' s motion to vacate the confession of

judgment. 

A majority ofthe 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. 

We concur: 

W0 . SWIcK, P. J. 

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mokIL -)-I - 

MAXA, J. ' 0