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Docket Number

No. 972-1.

Attorney(S)

Bushnell Burnfield and Andrew G. Burnfield, for appellant. Skeel, McKelvy, Henke, Evenson Betts, W.E. Evenson, Barker, Day Taylor, and Edward W. Taylor, for respondent. Slade Gorton, Attorney General, and Donald Foss, Jr., Assistant, amici curiae.

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Smart Summary

Case Summary: Metropolitan Federal Savings and Loan Association of Seattle v. Greenacres Memorial Association

Court: Court of Appeals of Washington, Division One (Panel 2). Date: October 30, 1972. Trial court judgment entered October 16, 1970. Decision: Affirmed. Panel opinion by Farris, A.C.J.

Factual and Procedural Background

This is an appeal from the denial of a motion to vacate a foreclosure judgment. Metropolitan Federal Savings and Loan Association of Seattle brought an action to foreclose a mortgage against Greenacres Memorial Association. Following a trial on April 1, 1970, proposed findings of fact and judgment were prepared and submitted to Greenacres for review. On April 24, 1970 the court signed findings and judgment; the attorney for Greenacres was present and the record reflects concurrence by counsel. During the April 24 proceeding, Stan Brunner, identifying himself as a newly elected trustee of Greenacres, orally objected and argued that the note and mortgage were a nullity, that authorized representatives had not signed the instruments, that trustees lacked authority and that members had been disenfranchised. The trial court noted Brunner's exceptions but signed the judgment. On August 17, 1970 Greenacres moved to vacate the judgment on the ground of an alleged procedural irregularity; the trial court found no irregularity and denied the motion. Greenacres appealed; the Court of Appeals affirmed the denial. The State appeared as amicus curiae raising a statutory question about the superior court's power to reserve foreclosure on certain cemetery property in light of RCW 68.20.120 and RCW 68.24.220.

Legal Issues Presented

Whether the circumstances surrounding the April 24, 1970 signing of findings and judgment—particularly the oral objections voiced by a trustee at that time—constituted a procedural "irregularity" warranting vacation of the judgment.
Whether the superior court had power, consistent with RCW 68.20.120 and RCW 68.24.220 (statutes exempting cemetery-owned land sold for interment from execution), to reserve the right to foreclose on parcel A of cemetery property, and if that statutory question could be raised on a CR 60 motion to vacate.
Whether the judgment was "void" (such that it may be attacked at any time under CR 60(5)) as opposed to merely "voidable" or erroneous, thereby permitting relief on a motion to vacate.

Arguments of the Parties

Appellant (Greenacres Memorial Association) — Arguments as reflected in the record

Oral objections by trustee Stan Brunner asserted that the note and mortgage were a "complete nullity" for Greenacres because no authorized representative signed them and the association never borrowed nor received any money.
Claims that the association's alleged trustees were not legitimately vested with trustee authority, that members (some six hundred) were effectively disenfranchised, and that the transaction transforming the association's status was improper and possibly unlawful.
Argument that these objections placed the court on notice and that the court, exercising inherent powers, should have conducted further inquiry before entering findings and judgment; thus the entry of judgment reflected a procedural irregularity.

Respondent (Metropolitan Federal Savings and Loan Association) — Arguments as reflected in the record

Counsel (Mr. Livesey) stated he was aware Mr. Brunner would be present and had contacted trustees prior to April 1; he represented that trustees most closely associated had been advised and that he believed Mr. Brunner's approval was obtained in connection with the proposed disposition intended to preserve Greenacres for the public benefit.
Counsel indicated he was not aware of Mr. Brunner's opposing position until it was voiced in court on April 24.

Amicus Curiae (State of Washington) — Issue presented

The State asked to what extent the superior court could reserve the right to foreclose on cemetery property (parcel A) in light of RCW 68.20.120 and RCW 68.24.220, which expressly exempt cemetery-owned land sold to private owners for interment from execution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Merritt v. Graves, 52 Wn. 57, 100 P. 164 (1909)	Definition of "irregularity" as "the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary ... or doing it in an unseasonable time or improper manner."	The court used this definition to frame what constitutes a procedural irregularity for purposes of vacating a judgment and to evaluate Greenacres' claim that the April 24 events were irregular.
Kern v. Kern, 28 Wn.2d 617, 183 P.2d 811 (1947)	Statement that relief by motion to vacate is confined to cases where the ground alleged is extraneous to the court's action or concerns regularity; it is not a means to review or correct errors of law in final judgments.	Applied to hold that CR 60 relief cannot be used to reexamine alleged legal errors; thus the court may grant no relief on the State's statutory argument unless the judgment is void rather than merely erroneous or voidable.
Marie's Blue Cheese Dressing, Inc. v. Andre's Better Foods, Inc., 68 Wn.2d 756, 415 P.2d 501 (1966)	Cited as additional authority for the principle limiting motion-to-vacate relief to irregularity/voidness rather than to correct errors of law.	Used to support the proposition that alleged legal error is generally not a basis for vacating a final judgment under CR 60.
Dike v. Dike, 75 Wn.2d 1, 448 P.2d 490 (1968)	Definition of a "void" judgment as one entered by a court lacking jurisdiction of the parties or subject matter or lacking the inherent power to make the particular order.	The court relied on this definition to explain the distinction between void and voidable judgments and to conclude that the court may set aside a judgment on motion only if it is void (i.e., jurisdictional or power defect), not merely erroneous.
Robertson v. Commonwealth, 181 Va. 520, 25 S.E.2d 352, 146 A.L.R. 966 (1943)	Authoritative quotation used in Dike to illustrate the distinction between a void judgment and one merely erroneous or voidable.	Quoted via Dike to reinforce the principle that errors in the exercise of jurisdiction do not render a judgment void and that erroneous decisions remain binding until set aside by proper procedure.

Court's Reasoning and Analysis

The court's analysis proceeded in discrete steps, grounded in the record and established authorities:

Characterization of "irregularity": The opinion begins by adopting the Merritt v. Graves formulation of "irregularity" to frame the threshold inquiry—whether there was noncompliance with a mandatory requirement or insufficient/untimely compliance.
Examination of the record and trial court findings: The appellate court reviewed the trial court's factual findings made in denying the motion to vacate. Those findings showed (a) the "meritorious defense" alleged in affidavits was substantially the same as defenses already pleaded in Greenacres' Answer and Counterclaim and in its answers to interrogatories; (b) at least three of seven trustees had actively participated in meetings or negotiations with attorneys in which the now-raised defenses were discussed; and (c) Greenacres had been represented by counsel continuously up to and including April 1, 1970 (trial) and by counsel up to and including April 24, 1970, when one trustee first indicated displeasure.
Application of CR 60 principles: The court explained that CR 60 recognizes the inherent power to relieve a party from judgment but distinguishes relief for void judgments (CR 60(5)) from relief for other grounds. The court quoted Kern (and Black on Judgments) to emphasize that the power to vacate on motion is confined to matters extraneous to the court's action or to irregularity in proceedings; it is not a vehicle to revisit legal errors that should be corrected on appeal.
Void vs. voidable distinction: Relying on Dike v. Dike (and Robertson as quoted there), the court reiterated the legal distinction: a judgment is "void" only if the court lacked jurisdiction of the parties or subject matter or lacked inherent power to enter the specific order. Errors in the exercise of jurisdiction or legal errors do not render a judgment void; such judgments are merely voidable and must be attacked by the appropriate procedures (appeal etc.).
Conclusion from facts and law: Given the trial court's factual findings that Greenacres had been represented and the defenses had been discussed by trustees and counsel prior to entry of judgment, and because only one trustee belatedly objected on April 24, the court concluded the circumstances did not amount to the kind of "irregularity" contemplated by the statute or cases permitting relief on motion. Because the record did not establish a jurisdictional or power defect rendering the judgment void, the appellate court could not grant relief under CR 60.

Holding and Implications

Holding: The Court of Appeals affirmed the trial court's denial of Greenacres' motion to vacate the foreclosure judgment. The court held that the circumstances surrounding the April 24, 1970 entry of judgment did not constitute a procedural irregularity and that the judgment was not shown to be void.

Implications:

The direct effect is that the foreclosure judgment remains in force and the motion to vacate was properly denied.
The court declined to grant relief based on asserted legal error or statutory conflict (as urged by the State as amicus) because CR 60 relief on motion is available only for void judgments or procedural irregularities, not for revisiting alleged legal errors which are the proper subject of appeal. The opinion reiterates the established distinction between void and merely erroneous or voidable judgments.
The opinion does not announce a new rule of law beyond applying established precedents; it affirms the trial court's application of those precedents to the facts before it. No broader legal change or new precedent is announced in this opinion.

Additional procedural note: Petition for rehearing was denied December 5, 1972.

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METROPOLITAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF SEATTLE, Respondent, v. GREENACRES MEMORIAL ASSOCIATION, Appellant.

[1] Judgment — Vacation — Irregularity — What Constitutes. A procedural irregularity, for purposes of vacating a judgment, means the noncompliance with a mandatory requirement or an insufficient or untimely compliance with the requirement.

Judgment — Vacation — Void Judgment — What Constitutes.

Affirmed.

Action to foreclose a mortgage. One defendant appeals from the refusal to vacate a judgment in favor of the plaintiff.

FARRIS, A.C.J.

On August 17, 1970, Greenacres Memorial Association on the theory that there was an irregularity in the proceedings moved to vacate a judgment of foreclosure that had been entered on April 24, 1970. The trial court, finding no irregularity, denied the motion. We affirm that decision.

Following a hearing on April 1, 1970, on the action by Metropolitan Federal Savings and Loan Association of Seattle to foreclose a mortgage against Greenacres Memorial Association, proposed findings of fact and judgment were prepared and submitted to Greenacres for review. On April 24, 1970, with the attorney for Greenacres present and concurring in the entry of that judgment, the following exchange occurred:

MR. BRUNNER: I am not represented by counsel, but I think there are some things here that the Court is unaware of and the stipulations that have been made come as a very rude shock to the membership. By this I mean the six or so hundred members they were just referring to who were not represented and whose votes were not represented by this thing.

It is the contention of us that this whole note and mortgage is a complete nullity as far as Greenacres Memorial Association is concerned in as much as no authorized representative of the association ever signed either note or mortgage. The association never borrowed any money; never got any money, and that what has been purported to happen actually did not happen. That the association's alleged trustees were not in fact real trustees, that they did not have voting rights and that prior to it, this whole negotiation and under these circumstances, with the complete disenfranchisement of the six hundred members not represented by the three shares.

There is a grave injustice being done here if this is allowed as stipulated, and this mortgage assumed to be in fact a real mortgage. If the association didn't sign it, it doesn't exist. It seems to me as simple as that.

Now, I assume we are going to have to have time to prove the allegation that these trustees in fact were not trustees. They did not have voting rights, but this is one of the slickest operations that I have ever seen, Your Honor. The purported trustees of the association on one given day, namely the 26th of January, transformed this non-profit association, cemetery association into a profit making personal venture, and this was not properly legally done. It is against the law of the State of Washington, I am sure. It is against public policy, and it didn't happen. And I just don't believe this stipulation should be allowed to stand as made.

That is all I have to say.

THE COURT: Did you identify yourself?

MR. BRUNNER: I didn't, Mr. Livesey, Stan Brunner from Ferndale. I am one of the trustees of the association, newly elected, and we haven't really had time to get together to formalize any kind of a defense. We were first aware of this stipulation in mid-week, and, hence, this highly irregular approach of mine.

THE COURT: All right. You are entitled to have said what you did say Mr. Brunner. Your exceptions will be noted.

Does either counsel have any comment on the statement just made by this gentleman?

MR. LIVESEY: The only comment I can make at this time, I was aware Mr. Brunner was going to be here as of yesterday. I did not know that he had the attitude that he had today. I had not been informed of this. I knew they met last weekday evening, the board of trustees, to consider the stipulation. I also want to have the record clear that prior to our coming to court in April 1st, I, at the request of Messrs. Moles, Jones and King did contact a Mr. Brunner and did contact Mr. Kunzman who works at Georgia Pacific Corporation, one of the trustees, to explain the recommendation that I had made to the trustees who were most closely associated with me in connection with this matter. I thought I had attached the approval of Mr. Brunner to what we were going to do with respect to determining the validity of this mortgage so that we could preserve, at least preserve Greenacres Memorial Association for the benefit of the public which was the main concern so it would not be subject to invasion of foreclosure. So I can only make that comment to the Court. I was not aware of Mr. Brunner's position, I guess stand, until right now.

MR. BRUNNER: I concur you didn't know. I wasn't real sure myself I would do such a thing, but I thought it needed to be done.

THE COURT: As I said before your exception will be noted and I will, however, sign the Findings and Judgment as presented and as agreed to by all counsel representing parties represented.

Greenacres argues that this exchange put the court on notice that the trustees objected to the entry of the judgment and that the court in the exercise of its inherent powers should have directed further inquiry before entering the findings and judgment.

[1] As early as 1909, the court defined irregularity:

"An irregularity is defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner." Vol. 4 Words Phrases; Title, Irregularity, and cases cited.

Merritt v. Graves, 52 Wn. 57, 59, 100 P. 164 (1909).

The record reflects that the trial court fully considered the issues raised in the affidavits filed in support of the motion to vacate and concluded:

In making this ruling, the Court finds that the `meritorious defense' set out in defendant's various affidavits in support of its motion is the same defense originally pleaded in defendant's Answer and Counterclaim filed July 25, 1969, and the defendant's own Answers to Interrogatories filed March 11, 1970, added little to the original Answer and Counterclaim. At least three of the seven trustees of defendant took active parts in meetings and/or negotiating sessions with attorneys for plaintiff and defendant, at which meetings all, or substantially all, of the defenses now raised by defendant were fully discussed.

The Court finds that defendant was represented by counsel at all times up to and including April 1, 1970, at which time the case came on for trial, agreements and stipulations were made, exhibits admitted and judgment entered in accordance therewith. Defendant continued to be represented by counsel up to and including April 24, 1970 at which time one trustee for the first time indicated his displeasure with the entry of the proposed written judgment.

The Court finds that the circumstances surrounding the signing of the judgment on April 24, 1970, did not constitute an `irregularity' contemplated by the statute or the cases cited and defendant's motion must be denied.

We agree.

The state appears as amicus curiae to question: To what extent did the superior court have the power to reserve the right to foreclose on cemetery property, here designated as parcel A, in light of RCW 68.20.120 and RCW 68.24.220 which expressly exempt from any execution land owned by a cemetery corporation which has been sold to private owners for purposes of interment.

[2] Whether this legal issue can be considered on a motion to vacate is controlled by CR 60 which provides in part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

. . .

(5) The judgment is void;

This rule merely recognizes the inherent power of the court. A void judgment can be attacked at anytime but otherwise

"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. That a judgment is erroneous as a matter of law is ground for an appeal, writ of error, or certiorari according to the case, but it is no ground for setting aside the judgment on motion." 1 Black on Judgments (2d ed.) 506, § 329.

Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811 (1947). See also Marie's Blue Cheese Dressing, Inc. v. Andre's Better Foods, Inc., 68 Wn.2d 756, 415 P.2d 501 (1966).

We can therefore grant no relief upon the ground urged by the state unless the judgment is void as opposed to voidable. A void judgment is defined in Dike v. Dike, 75 Wn.2d 1, 7, 448 P.2d 490 (1968):

A judgment, decree or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, is void. [ Robertson v. Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352, 146 A.L.R. 966 (1943).]

We are limited here to an inquiry into whether the trial court had the power to make the ruling, assuming but not deciding that the state is correct in its allegation that the judgment is contrary to statutory law. This question was also answered in Dike v. Dike, supra at 8.

[T]here is a vast difference between a judgment which is void and one which is merely erroneous . . . . it is said: "* * * a void judgment should be clearly distinguished from one which is merely erroneous or voidable. There are many rights belonging to litigants — rights which a court may not properly deny, and yet if denied, they do not render the judgment void. Indeed, it is a general principle that where a court has jurisdiction over the person and the subject matter, no error in the exercise of such jurisdiction can make the judgment void, and that a judgment rendered by a court of competent jurisdiction is not void merely because there are irregularities or errors of law in connection therewith. This is true even if there is a fundamental error of law appearing upon the face of the record. Such a judgment is, under proper circumstances, voidable, but until avoided is regarded as valid."

"Obviously the power to decide includes the power to decide wrong, and an erroneous decision is as binding as one that is correct until set aside or corrected in a manner provided by law." Freeman on Judgments, 5th Ed., section 357, p. 744. [ Robertson v. Commonwealth, 181 Va. 520, 25 S.E.2d 352, 146 A.L.R. 966 (1943).]

Affirmed.

JAMES and SWANSON, JJ., concur.

Petition for rehearing denied December 5, 1972.

MET. FED. SAV. LOAN v. GREENACRES