PER CURIAM.
The issue in this case is whether the superior court abused its discretion by denying Edward Simelton's CR 60(b) motion to vacate a 2004 superior court judgment that he failed to appeal. That judgment upheld the Board of Industrial Insurance Appeals' ruling that Simelton did not suffer an industrial injury. We conclude that the court did not abuse its discretion because in his CR 60(b) motion, Simelton raised some of the same arguments that were specifically rejected in the 2004 judgment. Simelton made some new arguments in his CR 60(b) motion, and the court did not abuse its discretion in rejecting them because they could and should have been raised in the previous proceedings.
FACTS
Simelton was an employee of the Smith Green Company, and he claims he was injured on October 25, 2002, while delivering equipment to a local restaurant. On December 5, 2002, he applied to the Department of Labor and Industries for workers' compensation benefits. The Department allowed his claim and Smith Greene appealed the allowance to the Board of Industrial Insurance Appeals.
An industrial appeals judge (IAJ) of the Board held a scheduling conference in which Simelton, counsel for Smith Greene, and an assistant attorney general for the Department of Labor and Industries participated. After the conference, the IAJ issued an order setting the witness confirmation deadlines for each party, stating, "Witnesses not identified by the date set forth below may not be permitted to testify without permission of the [IAJ] and the reserved hearing time may be cancelled." Board Record (BR) at 65. In this appeal, Simelton complains that his co-worker, James Jamison, and his physician, Dr, William Hobbs, were not allowed to testify, but it is undisputed that he did not identify them as potential witnesses by the witness confirmation deadline.
In October 2003, a perpetuation deposition was taken of Charles Mullen, one of Simelton's supervisors at Smith Greene. According to the Department's brief, he initially testified that he spoke to Simelton around the time of his alleged accident. He later explained that he was out of state on October 25, 2002, and received phone and fax communications from Smith Greene employees. Mullen's deposition is not included in the appellate record.
Hearings occurred on October 30, November 20, and December 17, 2003. At the outset, Simelton confirmed that he wished to proceed without counsel. At the end of the October 30 hearing, Simelton identified the witnesses he planned to call, which included Jamison but not Dr. Hobbs. The IAJ told Simelton that the Board would issue subpoenas for his witnesses and that Simelton would be required to serve them. Simelton said, "No problem." Simelton (Oct. 30, 2003) at 93.
At the November 20 hearing, Simelton confirmed that he had withdrawn his subpoena request for Jamison and that he did not intend to call him. He explained to the court that he was "le[e]ry about contacting people still employed at Smith Greene," because he did not "want to cause them any problems by having contact with [him]." Simelton (Nov. 20, 2003) at 5. He also said that he did not want to call Jamison because he could not afford to pay for his mileage. In his affidavit filed later, Jamison stated that "I offered to testify to what I saw. . . ." Clerk's Papers (CP) at 219. The IAJ stated that "The opportunity to present the testimony of Jamie Jameson has been made available to both the claimant and the Department." Colloquy (Nov. 20, 20003) at 6.
After the close of testimony at the December 17 hearing, all of the parties rested and agreed that the record could be closed and a proposed decision issued based on the evidence then in the record. The IAJ issued a proposed decision recommending that the Board reverse the Department's allowance of Simelton's claim and find that Simelton did not sustain an industrial injury on October 25, 2002. Simelton petitioned the three-member Board to review the lAJ's proposed decision.
In his petition, Simelton argued, among other things, (1) that Mullen's testimony was false (BR at 22); (2) that "calling . . . Jamison is really unnecessary" given the "inference drawn by the employer's failure to call him as a witness" (BR at 25); (3) that Simelton did not call Jamison to testify because he did not want to pay mileage fees or put Jamison at risk of being retaliated against; and (4) that the IAJ "should have seen that [Dr. Hobbs and physical therapist Deanna Irwin] were called" because Simelton was receiving treatment from them (BR at 28).
On March 23, 2004, the Board issued a decision consistent with the lAJ's decision. Simelton appealed the Board's order to the King County Superior Court. At the superior court, Simelton argued, among other things, (1) that it was unnecessary for him to call Jamison as a witness and that the IAJ was pressuring him to call Jamison (CP at 105); that the IAJ should have requested that Dr. Hobbs testify; and (3) that Mullen committed perjury.
On November 17, 2004, after a bench trial, the superior court issued a judgment affirming the Board's decision. The court upheld all of the Board's findings of fact as established by a preponderance of the evidence. It also rejected Simelton's procedural irregularity arguments.
Simelton did not prove that the Board failed to comply with "the practice in civil cases" as required by RCW 51.52.140, that the witnesses' testimony was presented to and received by the Board in contravention of RCW 51.52.100, and that there exist "irregularities in procedures before the board, not shown in the record" within the meaning of RCW 51.52.115.
CP at 177 (Finding of Fact 11). The court concluded, "No irregularities in procedure before the Board occurred that would require the Court to take testimony, or to remand the matter to the Board for further proceedings." CP 177 (Conclusion of Law 2). Simelton appealed to this court, but then abandoned the appeal.
In April 2005, however, Simelton filed a "Complaint for Vacation of the March 24, 2004 Judgment of the Board of Industrial Insurance Appeals Pursuant to CR 60(c)" in superior court. CP at 191-220. In his complaint, he asserted, among other things, that Mullen knowingly gave false testimony to the Board that could be refuted by Jamison and that he "was never afforded the opportunity to have Dr. William Hobbs testify." CP at 193. Though the complaint mentioned CR 60(c) in the caption, it did not contain any argument under CR 60(c). Simelton later filed a memorandum that made reference to CR 60(b)(3) (newly discovered evidence) and CR 60(b)(4) (fraud). The court denied his motion to vacate and his motion for reconsideration.
Simelton appealed to this court and moved for permission to submit additional evidence under RAP 9.11, requesting a remand to the Board for additional testimony. In his motion, he reiterated his arguments regarding Mullen, Jamison, and Dr. Hobbs. Commissioner Craighead denied the RAP 9.11 motion, explaining,
[H]e is unable to demonstrate that the additional evidence he seeks to admit meets the very strict criteria set forth in RAP 9.11. In particular, it was appellant's responsibility to call witnesses such as his physician; he cannot show that it is equitable to excuse his failure to call the physician below. Similarly, he did not call his co-worker; without knowing what the co-worker's testimony would have been, it is impossible to know whether he would have been intimidated by the threat of retaliation.
Notation Ruling (Sept. 26, 2006). This court also denied Simelton's motion to modify.
Simelton moved the Supreme Court to review the denial of his motion to modify. Commissioner Goff denied the motion, reasoning that because Simelton abandoned his appeal of the 2004 superior court judgment, he could not resurrect his arguments rejected by that judgment.
Mr. Simelton argued to the board and superior court that the corporate officer had testified falsely and that the doctor should have been called to testify. But the board rejected his arguments, and the superior court affirmed, concluding that there was no procedural irregularity before the board. Mr. Simelton appealed the superior court's decision, but later abandoned that appeal. Mr. Simelton may not now resurrect that appeal. . . .
Ruling Denying Review, No. 79647-5 (Feb. 5, 2007). The Supreme Court later denied Simelton's petition for review of Commissioner Goffs ruling.
ANALYSIS
This appeal is from the superior court's order denying Simelton CR 60(b) relief. CR 60(b)(1), (3), (4), and (11) provides that "the court may relieve a party . . . from a final judgment, order, or proceeding" for, among other reasons, "irregularity in obtaining a judgment," "[n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial," fraud, and "[a]ny other reason justifying relief from the operation of the judgment." "An appeal from denial of a CR 60(b) motion is limited to the propriety of the denial not the impropriety of the underlying judgment." Biurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
"The application of CR 60 is within the discretion of the trial court, and [an appellate court will] review only for abuse of discretion." In re Marriage of Shoemaker, 128 Wn.2d 116,120-21, 904 P.2d 1150 (1995). A court abuses its discretion if its decision is "`clearly untenable or manifestly unreasonable.'" In re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954 (1996) (quoting In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994)).
CR 60(b) is confined to matters extraneous to the judgment.
"The power to vacate judgments, on motion, is confined to cases in which the ground alleged is something extraneous to the action of the court or goes only to the question of the regularity of its proceedings. It is not intended to be used as a means for the court to review or revise its own final judgments, or to correct any errors of law into which it may have fallen.'"
Bjurstrom, 27 Wn. App. at 451 (quoting 1 Henry Campbell Black, A Treatise on the Law of Judgments § 329, at 506 (2d ed.)). The "exclusive procedure to attack an allegedly defective judgment is by appeal from the judgment, not by appeal from a denial of a CR 60(b) motion." Bjurstrom, 27 Wn. App. at 451. "Said another way, an unappealed final judgment cannot be restored to an appellate track by means of moving to vacate and appealing the denial of the motion." State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). A party "waives any argument" rejected in a ruling by failing to appeal it. Stevens v. City of Centralia, 86 Wn. App. 145, 155, 936 P.2d 1141 (1997); see also, Detonics ".45" Assocs. v. Bank of California, 97 Wn.2d 351, 353, 644 P.2d 1170 ("Since plaintiffs did not appeal the finding by the trial court that `12 U.S.C. § 85 and 86 preempted the penalty provisions of R.C.W. 19.52.030', this becomes the law of the case."). "CR 60 is not a substitute for appeal." Bjurstrom, 27 Wn. App. at 451 (citations omitted).
Simelton's arguments regarding the testimony of Mullen and Dr. Hobbs are identical in substance to his arguments to the Board and to the superior court in 2004. The court did not abuse its discretion in denying Simelton's 2005 motion to vacate under CR 60(b) because he raised the same arguments during the 2004 superior court proceeding, and the court specifically rejected them in its final judgment. Simelton abandoned his appeal of that judgment and therefore waived any arguments rejected by the superior court in 2004.
Simelton also argues that there was insufficient evidence to support the IAJ's decision. The superior court rejected this argument in 2004 by concluding, "The preponderance of the evidence establishes that on October 25, 2002, Simelton did not sustain an injury as contemplated by RCW 51.08.100 while in the course of his employment with Smith Greene." CP at 177 (Conclusion of Law 3).
Simelton waived any arguments against this conclusion by not appealing the court's judgment.
Res judicata applies to Simelton's arguments regarding Jamison's testimony. "Res judicata applies to matters that were actually litigated and those that `could have been raised, and in the exercise of reasonable diligence should have been raised, in the prior proceeding.'" DeYoung v. Cenex Ltd., 100 Wn. App. 885, 891-92, 1 P.3d 587 (2000) (quoting, Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. 320, 328-29, 941 P.2d 1108 (1997). Simelton could and should have argued to the Board and the superior court that he was prevented from calling Jamison because of a fear of retaliation by Smith Greene. In his affidavit, Jamison stated, "I offered to testify to what I saw. . . ." CP at 219. Instead of calling Jamison, Simelton insisted in his petition to the Board that "calling . . . Jamison is really unnecessary" because Smith Greene's failure to call Jamison created an inference in Simelton's favor. BR at 25. He also complained to both the Board and the superior court in 2004 that the IAJ was "badgering" him to call Jamison. The superior court in 2005 did not abuse its discretion in rejecting Simelton's arguments regarding Jamison.
Finally, Simelton argues that the IAJ should have waited to hold its hearing until the trial in a lawsuit he filed against Smith Greene was completed. This argument could and should have been made before the Board or the superior court in 2004.
For the foregoing reasons, we affirm.