COURT OF APPEALS, DIVISION ___
OF THE STATE OF XXX
yyyyyy
Respondent No. _____________________
xxxxxx,
Petitioner
MOTION FOR DISCRETIONARY REVIEW
- IDENTITY OF THE PETITIONER
Petitioner, xxxxx, asks this court to accept review of the decision or parts of the decision designated in Part B of this motion.
- DECISION
Petitioner seeks a review of the decision of the Superior Court of the State of Washington, County of King, which decision entered on XXX. Notably, the court reversed the previous order of the trial court judge that found the Petitioner not liable for Respondent’s claims. Accordingly, the decision of Judge XXX n meant that Petitioner was liable for $8800 plus fees and 12% interest. A copy of the decision is attached.
- ISSUES PRESENTED FOR REVIEW
- Whether the Superior court erred in holding a default judgment against Petitioner without Petitioner having a chance to be heard.
- Whether there was sufficient evidence from Respondent to fully satisfy a claim for a breach of contract.
- STATEMENT OF THE CASE
Respondent filed a case at the Kings County District Court on or about XXX claiming damages for breach of contract. Notably, Respondent claimed Petitioner owed him $13,200 plus interest, which Respondent had loaned Petitioner. A hearing was set for XXX. Petitioner did not appear for the said hearing and a default judgment of $8800 plus fees and 12% interest was entered against him on or about the self-same XXX.
Petitioner appealed the decision, and a hearing was set on or about XXX. Pro Tem Tien Nguyen heard testimony from both parties. Respondent gave no evidence but relied on a testimony of a contract or promissory note with Petitioner. 9:45:39. Upon further questioning from the court, Respondent acknowledged that Petitioner did not owe him the said debt and that it is a third party who owed him the money. 9:45:56. Accordingly, Pro Tem Tien Nguyen found that Respondent had not met his burden of proof. The court also observed that Respondent had no signed contract or written proof of the contract. Pro Tem Tien entered judgment against Respondent on or about XXX, thus vacating the previous judgment entered on January 30, 2020.
On or about XXX, Respondent appealed Pro Tem Tien’s judgment at the Superior Court. The Superior Court reversed Pro Tem Tien’s judgment and reinstated the original default judgment.
On or about XXXX, Petitioner filed a motion for reconsideration which the Superior Court denied on or about XXX.
Petitioner filed an appeal on or about XXX.
- ARGUMENT WHY REVIEW SHOULD BE ACCEPTED
- The Superior court erred in holding a default judgment against Petitioner without Petitioner having a chance to be heard.
Default judgments are unfavorable. They are unfavorable because “it is the policy of the law that controversies be determined on the merits rather than by default.” Griggs v. Averbeck Realty, Inc., 92 Wash. 2d 576, 581, 599 P.2d 1289 (1979).
The first consideration for the court while determining a matter is whether justice is being done. Griggs v. Averbeck Realty, Inc., 92 Wash. 2d 576, 582, 599 P.2d 1289 (1979). And “what is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome”. Id.
Accordingly, it appears that the Superior court erred by resorting to the original judgment which was entered without Petitioner’s testimony. Besides, Petitioner has valid reasons why he was in default. Petitioner has valid reasons why he is not liable for Respondent’s claims. Besides, Respondent confirmed in his testimony with Judge Nguyen that the $10,000 he handed to Petitioner was to be handed to a third person, XXX Do, so that Respondent could get monthly interest from the said third party- XXX Do. Also, when Judge Nguyen asked Respondent in the audio recorded testimony whether he was receiving any interest from XXX Do, Respondent stated that he was receiving interest from XXX Do and not from Petitioner. 9:49:56. Lastly, Respondent was the witness when Petitioner handed the third party $90,0000 (where $80,000 was Petitioner’s loan to third party and $10,000 was Respondent’s loan to third party). Promissory Note titled in Vietnamese as “Giay Vay Tien”. Therefore, Respondent knew that he did not loan me the $10,000.
- There was insufficient evidence from Respondent to fully satisfy a claim for a breach of contract.
The elements of a breach of contract claim are that the contract that imposes a duty, the duty is breached, and the breach proximately causes damage to the plaintiff. Northwest Mfrs. V. Department of Labor, 78 Wn.App. 707, 712, 899 P.2d 6 (1995).
It follows; a plaintiff in a contract action must prove a valid contract between the parties, a breach, and resulting damage. Lehrer v. State, Dept. of Social and Health Services, 101 Wn.App. 509, 516, 5 P.3d 722 (2000).
The appropriate standard of proof for a breach is a preponderance of evidence rather than clear, cogent, and convincing evidence. Allstate Ins. Co. v. Huston, 123 Wn.App. 530, 542, 94 P.3d 358 (2004).
Respondent failed to provide either a signed contract or a written document with the provision that he had loaned Petitioner the money. Therefore, Petitioner did not have any Promissory Note/Contract signed with Respondent because petitioner did not borrow any money from Respondent. 9:45:39. As already stated, it was Respondent’s intention to obtain a pecuniary benefit for loaning the said third-party- Mr. Cuong Do. Notably, Respondent attested to the fact that he was not receiving nay interest from Petitioner but from Mr. Cuong Do. 9:49:56.
There was no contract between Petitioner and Respondent. Accordingly, there was no contractual duty, no breach of any duty, and no loss consequential or incidental to any breach.
- CONCLUSION
- The Superior Court failed to consider Petitioner’s testimony and relied on the original default judgment.
- There was no contract in existence between Petitioner and Respondent. Accordingly, there was no duty, no breach of the duty, and no loss resulting from the said breach.
PRAYER FOR RELIEF
- This Motion should be granted.
- This court should accept review for the reasons indicated in Part E.
- The Superior Court’s ruling on September 2, 2020 should be reversed and judgment entered for Petitioner.
- Petitioner also requests such other and further relief as is just.
Respectfully submitted,
Signature
_______________________
Pro se
xxxxxx
ADDRESS
xxxxxx@gmail.com
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing Motion has been sent to the Respondent in the following address:
[ENTER ADDRESS FOR RESPONDENT].
Signature
_______________________
Pro se
XXXXX
ADDRESS
XXXXX@gmail.com
XXX
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