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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UNPUBLISHED OPINION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 ofhis motion to vacate a 

### confession ofjudgmentthat he executed in a civil lawsuit arising from his alleged embezzlement offunds 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 ofthe 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 forvacating the confession of judgment under CR 60(b)( 11). 

### Accordingly,we affirm the trial court's denial ofFirebaugh' 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 -

ofajudgment 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 itwould 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 ofEvidence (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 eventthat any criminal prosecution is commenced against him arising out ofthe facts of this case. 

### CP at 20. At the hearing to approve the confession ofjudgment, counsel for Pietz agreed thatthe 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 ofthe confession ofjudgment with his 

### attorney,that he understood that he would be bound by its terms, and that he agreed to be bound bythose terms. The trial courtthen signed the confession ofjudgment. 241866 - 5 -II 

### 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 ofthe confession ofjudgment or the legal
effect of how 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 thatthe 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,thatthe confession would not be admissible in a criminal case ifcharges 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 ofits 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 finaljudgment, 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 briefthatthe trial court should have vacated the confession of judgment under CR 60(b)( 5), which allows for the vacation ofvoidjudgments. 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). 341866 - 5 -II

ajudgment or order. Another reason under CR 60(b)( 11) is "[ 

### a]ny other reasonjustifying relief from the operation ofthe judgment." 

### Generally, we review atrial court' s ruling under CR 60(b) for an abuse ofdiscretion. 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 ofdiscretion 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 beliefof 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 ofmistake under CR 60(b)( 1) involve defaultjudgments. In that context, a party requesting reliefmust show that thejudgment 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 ofboth parties to thejudgment. Pederson v. Potter, 103 Wn. App. 62, 68, 11 P. 3d 833 ( 2000). 

### As a result, such ajudgment by consent can be vacated under CR E41866 - 5 -II 

### 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 consentjudgment: ( 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 ajudgment. Firebaugh provided no evidence of such a mistake.

Firebaugh claims that he did not understand the legal effect ofthe 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 ofits discretion that Firebaugh' s motion to vacate was based only on a misapprehension ofthe 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 ofthe 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 ajudgment 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 effectthe confession ofajudgment 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 thatthe 

### 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 ofthe 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 relieffrom 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 ofthe confession ofjudgment and its admissibility in a criminal case. We disagree.41866 - 5 -II 

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

### reasonjustifying relief. The use ofthis provision is confined to situations involving extraordinary circumstances not covered by any other section ofthe 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 ofCR 60(b)( 11) underthese facts. Firebaugh also does not cite to any authority forthe proposition that purported ignorance ofthe legal consequences ofa confession ofjudgment constitutes extraordinary 

### circumstances. Accordingly, we hold that Firebaugh failed to establish extraordinary circumstances warranting reliefunder 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 inthe 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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