D

COURT OF APPEALS DIV I

S1ATE OF WASHINEION

2018 JUti 18 Ati 9:L

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TIMOTHY P. MERRIMAN, )

) No. 76860-3-1

Appellant, )

) DIVISION ONE

v. )

) UNPUBLISHED OPINION

WHATCOM COUNTY, )

)

Respondent. ) FILED: June 18, 2018

)

APPELWICK, C.J. — Merriman argues that the trial court abused its discretion

in denying his motion for relief from judgment. We affirm.

FACTS

Timothy Merriman resigned from his employment at Whatcom County

(County). The resignation followed a lengthy history of paid leave and

accommodation generally related to Merriman's disability. In 2009, Merriman filed

suit alleging a hostile work environment, wrongful discharge, and disability

discrimination, among other claims. The County successfully moved to dismiss

under CR 12(c).

The trial court then permitted Merriman to amend his complaint, and

Merriman added claims for failure to accommodate and constructive discharge.

The trial court dismissed these added claims on summary judgment, and this court

affirmed. This court discussed the substantive facts in detail in a prior opinion,
No. 76860-3-1/2

Merriman v. Whatcom County, No. 69295-0-1 (Wash. Ct. App. Sep. 9, 2013)

(unpublished), http://www.courts.wa.gov/opinions/pdf/692950.pdf.

In 2016, three years after this court affirmed summary judgment, Merriman

moved under CR 60 for relief from judgment obtained through fraud. The trial court

denied this motion and Merriman's motion for reconsideration. Merriman appeals.

DISCUSSION

Merriman makes one overarching argument: that the trial court erred in

denying his motion for relief from judgment. He makes a number of additional

arguments that do not go directly to the validity the denial.

I. CR 60(b) 

CR 60(b) provides various grounds for a trial court to set aside a judgment.

Under CR 60(b), motions under sections (b)(1), (b)(2), and (b)(3) must be brought

within one year of the judgment. Merriman brought his CR 60(b) motion over one

year after judgment. Therefore, these forms of relief are unavailable to him. Of

the remaining options, he argues for relief under CR 60(b)(4), and CR 60(b)(5).

CR 60(b)(4) authorizes a trial court to vacate a judgment for fraud,

misrepresentation, or other misconduct of an adverse party. The fraudulent

conduct or misrepresentation must cause the entry of the judgment such that the

losing party was prevented from fully and fairly presenting its case or defense.

Lindgren v. Lindgren,58 Wn. App. 588, 596, 794 P.2d 526 (1990).

The party attacking a judgment under CR 60(b)(4) must establish the fraud,

misrepresentation, or other misconduct by clear and convincing evidence.

Lindgren,58 Wn. App. at 596. And, on appeal, a trial court's disposition of a motion

2
No. 76860-3-1/3

to vacate will not be disturbed unless it clearly appears that it abused its discretion.

Id. at 595. Abuse of discretion means that the trial court exercised its discretion

on untenable grounds or for untenable reasons, or that the discretionary act was

manifestly unreasonable. Id.

Merriman alleges the County committed fraud in at least two ways. First,

he argues that the County inadequately responded to a public records request that

he submitted for any records discussing Merriman, and also wrongfully withheld

certain other documents. The County produced only a limited amount of records

in response to a public records request from Merriman, because it deemed much

of the responsive records exempt from public disclosure. This, Merriman claims,

was fraud.

Second, he argues that Whatcom County introduced "sham" letters sent to

Merriman regarding the availability of paid leave. He claims that these letters were

substantively inaccurate regarding the amount of leave available to Merriman, and

that Merriman in fact had more leave available than the County led him to believe.

He also claims that the letters downplayed Merriman's willingness to return to

work, and exaggerated the County's generosity.

Merriman argues that the trial court did not adequately address CR 60(b)(5),

which allows a trial court to vacate a judgment that is void. Merriman cites authority

holding that judgments obtained through fraud are void. Therefore, he argues that

CR 60(b)(5), like CR 60(b)(4), allows for vacation of judgments obtained through

fraud. But, if the fraud alleged by Merriman indeed occurred here, CR 60(b)(4)

would be an independently adequate ground for vacation of the judgment. Even if

3
No. 76860-3-1/4

CR 60(b)(5) applied, its application would be superfluous to CR 60(b)(4), and thus

unnecessary. The trial court did not err in declining to address CR 60(b)(5).

Merriman also contends that the trial court failed to adhere to a policy of

deterring discovery abuses, and cites a federal case, Rozier v. Ford Motor Co.,

573 F.2d 1332, 1346 (5th Cir. 1978) in support.' In July 2016, Merriman provided

a declaration from a County employee who attested to the amount of responsive

documents that that employee possessed. The County did not produce some emails, because many of those records came from the judicial branch, and thus

were exempt. Production of records under the public records act is not the same

as discovery under the civil rules, and thus does not amount to discovery fraud.

See Limstrom v. Ladenburq,136 Wn.2d 595,614 n.9, 963 P.2d 869 (1998) ("[T]he

public records act was not intended to be used as a tool for pretrial discovery.").

Merriman also makes a brief reference the County's withholding of certain

e-mails in response to requests for production in discovery as a basis for finding

fraud. In his motion below, he alleged that a public records request proved that

the County had hundreds of e-mails pertaining to Merriman, but it produced only

six in response to his discovery request. The six documents produced had footers

that Merriman argued below, from personal knowledge, meant they were the result

of a search of a limited data base that didn't include the contents of desktop

1 Merriman further argues that the trial court erred by relying on Peoples

State Bank v. Hickey,55 Wn. App. 367, 777 P.2d 1056 (1989). That case involved

vacation of a default judgment. Id. at 370. He argues that his case, which did not

involve a default judgment, is inherently different. But, the court did not mention

the case in either its oral ruling or in its written order denying Merriman's motion.

Even if the case is distinguishable, there is no indication that the court relied on

the case. This argument therefore fails.

4
No. 76860-3-1/5

machines. He asserts that the County's attorney should have recognized this

alleged deficiency in the search and production. Therefore, he argues, it was a

fraud on the trial court to certify the discovery produced.

But, these facts were known at the time of trial and could have been

resolved factually at that time. Merriman identifies nothing that prevented him from

doing so at the time. The mere possibility of a discovery violation does not prove

discovery fraud.

The same is true for his argument regarding fraudulent letters. The letters

were written years before the original complaint was filed, not in response to it. If,

as Merriman claims, the letters were substantively erroneous, he knew of the

alleged inaccuracies at the time of the initial summary judgment and had the

opportunity to respond to them. Inaccuracies in the letters, standing alone, do not

prove a fraud on the trial court under CR 60(b)(4).

Rejecting the claim of fraud was not an abuse of discretion by the trial court.

II. Remaining Arguments 

Merriman argues that the trial court used word choices three separate times

during the hearing below that amount to error. First, he contends that the trial court

erred by referring to the "issues" before it, rather than an "issue" before it. Second,

he contends that the trial court erred, because the trial court referred to the issue

before it as "motions for relief." Third, he contends that the trial court made

conflicting statements by stating that it had "largely digested" the relevant

pleadings, but also had "reviewed at length" the relevant materials. But, the trial

5
No. 76860-3-1/6

court's word choice in these instances does not demonstrate error or abuse of

discretion.

Finally, Merriman argues that the trial court erred by making no mention in

its order of whether a fraud occurred, or whether Merriman timely brought his CR

60(b) motion. But, CR 52(a)(5) states the general rule that a trial court need not

enter findings of fact and conclusions of law in deciding a motion. Merriman cites

no authority instructing that this case is an exception. The trial court's order is

sufficient.

Merriman has failed to establish that the trial court abused its discretion in

holding that relief under CR 60(b) was not warranted.

We affirm.

WE CONCUR:

) -1 -g_eci R ,

6

6