COURT OF APPEALS, DIVISION I
OF THE STATE OF XXX
| XXX
Respondent v. XXX, Petitioner |
No. XXX-1MOTION FOR RECONSIDERATION |
Petitioner, XXX, seeks a reconsideration of this Court’s ruling made on XXX. The said ruling denied Petitioner’s Motion for Discretionary Review.
Statement of Relief Sought
The dismissed Motion for Discretionary Review raised two pertinent issues to wit, whether the Superior court erred in holding a default judgment against Petitioner without Petitioner having a chance to be heard; and whether there was sufficient evidence from Respondent to fully satisfy a claim for a breach of contract. However, the Court’s ruling failed to address Petitioner’s issues directly. Instead, the Honorable Court issued an incomprehensible ruling that avoided Petitioner’s issues. The Honorable Court denied Petitioner’s Motion on the grounds that the Superior Court vacated the earlier January 30th judgment based on procedural grounds, and not contract law. And that Petitioner “does not sufficiently explain any conflict between the superior court’s analysis of the procedural issues involved in the vacation of the XXX order …” Further, the court held that the Superior Court stated that it did not find any issue with Petitioner’s factual allegations since the District Court did not consider it an issue.
Accordingly, Petitioner seeks a reconsideration of the case. Petitioner prays this Court reconsiders the issues directly as raised by Petitioner.
Facts relevant to Motion
Respondent filed a case at the Kings County District Court on or about XXX, claiming damages for breach of contract. A 2. 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. A 3.
Petitioner appealed the decision, and a hearing was set on or about XXX. Pro XXX heard testimony from both parties. Respondent gave no evidence but relied on a testimony of a contract or promissory note with Petitioner. A 8 at 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. A 8 at 9:45:56. Accordingly, Pro XXX 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 XXX entered judgment against Respondent on or about XXX, thus vacating the previous judgment entered on XXX. A 4.
On or about XXX, Respondent appealed Pro XXX judgment at the Superior Court. The Superior Court reversed Pro XXX judgment and reinstated the original default judgment. A 1.
On or about XXX, Petitioner filed a motion for reconsideration which the Superior Court denied on or about XXX. A 5. Petitioner filed an appeal on or about XXX. This Court gave a ruling denying Petitioner’s Motion for Discretionary Review, which Petitioner seeks the Honorable Court to reconsider.
Argument why Reconsideration Should Be Granted
- The Petitioner sufficiently explains the error(s) in the Superior Court’s analysis of the procedural issues involved in the vacation of the XXX order.
“In deciding a motion to vacate a default judgment,… the … court addresses two primary and two secondary factors, which the moving party must show: (1) that there is substantial evidence to support, at least prima facie, a defense to the claim asserted by the opposing party; (2) that the moving party’s failure to timely appear and answer was due to mistake, inadvertence, surprise, or excusable neglect; (3) that the moving party acted with due diligence after notice of the default judgment; and (4) that the opposing party will not suffer substantial hardship if the default judgment is vacated.” Little v. King, 160 Wn.2d 696, 703-04, 161 P.3d 345 (2007) (citing White v. Holm, 73 Wn.2d at 352); Johnson v. Cash Store, 116 Wn. App. 833, 841, 68 P.3d 1099 (2003). (Emphasis added).
A court may relieve a party from final judgment for “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.” CR 60(b)(1).
A Trial Court’s decision on a Motion to Vacate a Default Judgment will not be disturbed on appeal unless the trial court has abused its discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007); In re Estate of Stevens, 94 Wn. App. 20, 29, 971 P.2d 58 (1999). Discretion is abused if exercised on untenable grounds or for untenable reasons. Morin, 160 Wn.2d at 753. Courts consider excusable neglect and due diligence as factors in considering “good cause.” Seek Systems, Inc. v. Lincoln Moving/Global Van Lines, Inc., 63 Wn. App. 266, 271-72, 818 P.2d 618 (1991).
In the instant case, Petitioner claims that the Superior Court erred in entering the Default Judgment without giving him a chance to be heard. Petitioner’s Motion for Discretionary Review clearly raises sufficient allegations why Petitioner was in default. It follows; vide a hearing, this Honorable Court should grant Petitioner chance to provide his testimony why he was in default.
- Respondent cannot prove that there was a valid contract in existence.
“It is for the trier of fact to assess the credibility and weight to be attached to the evidence, to measure that evidence in the light of applicable legal requirements and presumptions, and to determine whether the evidence on the point establishes to a high probability that the alleged contract in fact existed.” Cook v. Cook, 80 Wash.2d at 646, 497 P.2d 584. ¶ 31 In In re Thornton’s Estate, 81 Wash.2d 72, 76, 499 P.2d 864 (1972).
A contract is deemed valid if there is an offer, acceptance, and consideration. RCW 62A.2-206. “[T]he burden of proof in [contract] cases requires that the party asserting an oral contract … must produce substantial evidence tending to establish the three elements of agreement, performance by claimant and claimant’s reliance.” Jennings v. D’Hooghe, 25 Wash.2d 702, 172 P.2d 189 (1946). Further, the evidence of the first element (the agreement) must include the specific factor of evidence which objectively manifests the recognition of an existing agreement. From this evidence, “the trier of fact must be convinced to a high probability that all required elements are truly fact.” Cook, 80 Wash.2d at 647, 497 P.2d 584 (emphasis added).
In the instant action, the Petitioner contends that no contract existed between the parties, and that the Respondent cannot prove otherwise. 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. A 8 at 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. A 8 at 9:49:56. In that regard, Petitioner maintains that 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.
- The Court’s Ruling failed to directly address all issues in Petitioner’s Motion.
“ On a motion for revision, a trial court reviews the commissioner’s findings of facts and conclusions of law de novo based on the evidence and issues presented to the commissioner.” RCW 26.12.215; RCW 2.24.050; In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). (Emphasis added). It follows; such a ruling can be reviewed for an abuse of discretion or legal error. In re Marriage of Dodd, 120 Wn. App. 638, 644, 86 P.3d 801 (2004).
In the instant action, the Petitioner raised two issues in his Motion for Discretionary Review. These issues were whether the Superior court erred in holding a default judgment against Petitioner without Petitioner having a chance to be heard; and whether there was sufficient evidence from Respondent to fully satisfy a claim for a breach of contract. However, the Court’s ruling failed to address Petitioner’s issues directly. Instead, the Honorable Court issued an incomprehensible ruling that avoided Petitioner’s issues. The Honorable Court denied Petitioner’s Motion on the grounds that the Superior Court vacated the earlier January 30th judgment based on procedural grounds, and not contract law. And that Petitioner “does not sufficiently explain any conflict between the superior court’s analysis of the procedural issues involved in the vacation of the January 30 order …” Further, the court held that the Superior Court stated that it did not find any issue with Petitioner’s factual allegations since the District Court did not consider it an issue.
It follows, Petitioner prays for a reconsideration of his case, so the Court issues a fresh ruling on each issue independently.
Conclusion
In light of the foregoing, Petitioner contends that this Honorable Court should grant him this Motion to Reconsider because Petitioner has sufficiently stated his allegations that the Superior Court is in error in failing to allow Petitioner explain why he was n default; the Respondent has failed to prove the existence of a contract; and this Honorable Court did not address Petitioner’s issues directly.
Prayer for Relief
Accordingly, Petitioner prays this Motion be granted and that this court should reconsider Petitioner’s case in light of Petitioner’s allegations. Petitioner also prays this Honorable Court to reverse the Superior Court’s ruling on September 2, 2020 and enter judgment for Petitioner. Lastly, Petitioner also requests such other and further relief as is just.
Respectfully submitted,
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].
APPENDIX
TABLE OF CONTENTS
-
- XXX
- Judgment on Petitioner’s Motion for reconsideration on October 16, 2020. (A 5)
- Promissory Note titled in Vietnamese as “Giay Vay Tien”. (A 6)
- Trial Schedule Granted. (A 7)
- Audio testimony. (A 8)
A I
(Superior Court Judgment ,XXX
A 2
(XXX.)
A 3
(XXX )
A 4
(XXX.)
A 5
(XXX)
A 6
(XXX”.)
A 7
(Trial Schedule Granted.)
A 8
(Audio testimony.)
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