Washington

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Martel v. Dahlquist,
118 Wash.App. 1012 (Wash.App.Div.1 08/18/2003)

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

No. 50704-4-I

August 18, 2003

CECILE MARTEL, PATRICK VUKICH, RESPONDENT,
v.
DARYL DAHLQUIST, APPELLANT, AND DEFENDANT.

Appeal from Superior Court of King County Docket No: 93-2-28320-2 Judgment or order under review Date filed: 06/07/2002

Counsel OF Record

Counsel for Appellant(s) Daryl Dahlquist (Appearing Pro Se) 15238 SE 272nd St Kent, WA 98042

Christopher Kirk Steuart Attorney at Law 1220 SW Webster St Ste B Seattle, WA 98106-1921

Counsel for Respondent(s) Alexis Mathis Sound Law Group Pllc 227 S Orcas St Seattle, WA 98108-2442

The opinion of the court was delivered by: Agid, J.

Concurring: Anne L Ellington, C. Kenneth Grosse

UNPUBLISHED OPINION

Appellant Daryl Dahlquist appeals a superior court decision granting respondent Patrick Vukich's motion for order confirming a sheriff's sale. He asserts the trial court erred by confirming the sale because the sale was void and rejecting or refusing to consider his homestead claim. Vukich counters that there was sufficient evidence that Dahlquist did not reside on the property, and Dahlquist's objection to the sale based on his homestead rights is time barred. We affirm the trial court because as a matter of law, Dahlquist's objection to the sale was time barred.

FACTS

On March 15, 2002, one-third of Dahlquist's interest in real property located at 15242 SE 272 Street in Kent, Washington, was sold at a sheriff's auction. Before the sale, Vukich's attorney researched Dahlquist's residential status and presented the superior court with several declarations and certified mail receipts that suggested Dahlquist resided on the lot adjacent to the property at issue. Dahlquist also received two notices of the sale, delivered to 15238 SE 272 Street in Kent, Washington, on February 9 and 14, which Dahlquist signed and accepted. The sheriff's sale was held on March 15, and on March 20, the sheriff's office provided notice of the sale to all parties.

On April 15, 2002, Dahlquist filed a pro se objection to the sheriff's sale,*fn1 and seven days later Vukich brought a motion to confirm the sale. On April 29, Dahlquist filed his objection through an attorney, asserting the trial court should refuse to confirm the sale because it was improperly conducted under non-homestead rules. The trial court granted Vukich's motion to confirm the sale on June 7, 2002, without substantive findings. Dahlquist appeals, asking this court to remand for supplemental proceedings to determine his homestead rights.

ANALYSIS

I. Was Dahlquist's objection to the sale time barred?

'After a judgment creditor has obtained a writ of execution and the sheriff has sold the debtor's real property to satisfy the judgment debt, the court must confirm the sale upon motion of the purchaser' under RCW 6.21.110.*fn2 RCW 6.21.110(2) states:

The judgment creditor or successful purchaser at the sheriff's sale is entitled to an order confirming the sale at any time after twenty days have elapsed from the mailing of the notice of the filing of the sheriff's return, on motion with notice given to all parties. . . , unless the judgment debtor. . . shall file objections to confirmation with the clerk within twenty days after the mailing of the notice of the filing of such return.*fn3

The 20-day deadline for procedural objections is mandatory, but it cannot be raised as a bar when the debtor objects to confirmation on the ground that the underlying judgment is void.*fn4 Confirmation of judicial sales lies primarily within the discretion of the trial court, and an appellate court will not reverse the confirmation except for manifest abuse of that discretion.*fn5

In this case, it is undisputed that Dahlquist objected to the sale on April 15, 2001*fn6 26 days after the notice of filing was mailed and 6 days past the statutory period for objecting to the confirmation under RCW 6.21.110(2). Dahlquist offers three arguments why his objection asserting a homestead exemption is not time barred.

First, he claims that he should have been allowed 26 days because under 'the general rule,' he would have been permitted an extra three days while the notice was in the mail.*fn7 Because the 23rd day was a Saturday, he claims he actually had until the following Monday to respond under CR 6(e).*fn8 We reject this argument. Dahlquist cites no authority supporting his assertion that the Civil Rules supercede the 20-day period set forth in RCW 6.21.110. The statute specifically states that the 20-day period begins upon 'the mailing of the notice.' Accordingly, CR 5(b)(2)(A) and CR 6, which prescribe how 'service' is properly made, do not apply here. It is also difficult to imagine how the notice, entitled 'Notice of Return of Sheriff's Sale on Real Property' sent to Dahlquist on March 20 could have more clearly spelled out the 20-day deadline for objection and when it began. In its entirety, the text of the one-page letter stated:

I. Basis

As provided by RCW 6.21.110 - Confirmation of Sale, the Superior Court has received and filed on 3-19-02, a Sheriff's Return on Sale of Real Property in the above entitled action. Pursuant to this statute, the judgment creditor or successful purchaser at the Sheriff's Sale is entitled to have an Order Confirming Sale unless the judgment debtor or his representative files objections to the sale with the Clerk of the Court within twenty (20) days from the mailing of this notice.

II. Hearing

This is an individually calendared (IC) case. Please contact the staff of the courtroom of the Judge that has been assigned to this case to set a hearing date.

III. Proof of Mailing

I certify that a copy of this notice was mailed, by first class mail, on this date, to all parties in this action who are not in default.

Date: March 20, 2002

Paul L. Sherfey, Director and Superior Court Clerk*fn9

Second, Dahlquist argues that even if we reject his reasoning, we should allow a hearing on the merits on the basis of excusable neglect by treating the execution without a hearing as the equivalent of a default judgment under Civil Rule 60.*fn10 He also claims the affidavits about his residential status are inaccurate and therefore 'may be based on fraud,' which supports setting aside the judgment under CR 60. Vukich responds, arguing that Dahlquist cannot raise the issue of whether CR 60 allows him to proceed with his homestead exemption because he raises it for the first time on appeal.*fn11 We agree with Vukich and decline to consider the argument. Dahlquist did not submit a reply brief, so he neither responds to Vukich nor provides a citation to the record showing he did in fact raise the issue in the trial court.*fn12 In addition, Dahlquist does not provide any analysis supporting his claim of excusable neglect or any evidence supporting his allegations of fraud.

Finally, Dahlquist claims that the writ of execution and the confirmation are void because of alleged fraud, Vukich's counsel's failure to meet the due diligence requirement of RCW 6.17.100(3), and the court's failure to consider the homestead exemption. As stated above, Dahlquist offers no evidence of fraud. Nor does he offer evidence that Vukich's counsel did not meet the statutory due diligence requirement. And Dahlquist's tardy homestead claim does not prevent the trial court from enforcing the 20-day deadline for objecting to a sheriff's sale. Only when the debtor objects to confirmation of a sheriff's sale on the ground that the underlying judgment is void*fn13 can he successfully argue the 20-day deadline is not an absolute bar of the claims.*fn14 Dahlquist objects to procedural aspects of the sale, specifically that the sale was not conducted in conformity with the Washington Homestead Statute. But the 20-day deadline bars this objection.

In sum, we conclude as a matter of law that Dahlquist's objection to the sale was time barred and affirm the trial court's decision to confirm the sale.

II. What is the proper forum for Dahlquist to assert his homestead claim?

Although we conclude that Dahlquist's objection to the sale is time barred as a matter of law, he can still assert his homestead claim. A sale of real property on which there is a valid homestead claim that does not comply with the statute governing sale of homestead is void.*fn15 Confirmation can only cure irregularities in the manner in which a sheriff's sale is conducted. It cannot make a void sale valid.*fn16 When property claimed as homestead has been sold under execution, the owners are entitled to bring an action asserting their homestead claim.*fn17 So the next issue is whether this court should remand for supplemental proceedings to consider the homestead claim or whether Dahlquist must file an independent action. We conclude that Dahlquist must file an independent action.

Vukich claims that the holding in Traverso v. Cerini*fn18 supports his argument that a homestead claim must be argued in a separate action. In Traverso, the court stated, '{T}he question of a validity of a homestead claim could not be determined, where it was interposed as an objection to the confirmation of a sale, and that it was the duty of the court to confirm the sale notwithstanding the objections, leaving the parties to try out the issue in an independent action brought for that purpose.'*fn19 There is one exception to this rule. In Enyart v. Humble,*fn20 we declined to follow Traverso in an effort to further the interests of fairness and efficiency.

We said:

{T}he trial court in this case should have decided the status of the {debtors'} homestead claim on their motion to quash, if not upon their objection to the sale. There is no reason to compel the {debtors} to seek an adjudication of their homestead rights in some future action. They timely raised the issue of the validity of the homestead before a court of general jurisdiction in the county in which the property claimed exempt was situated. All necessary parties were present; it served no useful purpose to defer resolution of the homestead question until an independent action could be commenced, the pleadings settled, and the case brought on for trial. . . .*fn21

Because Dahlquist did not timely raise the issue of the validity of his homestead claim, Enyart's fairness and efficiency rationale does not apply here. We accordingly reject his request for remand. He must bring an independent action to pursue his homestead claim.

III. Attorney Fees

Both parties seek attorney fees on appeal under RAP 18.1. We award attorney fees to Vukich because, as he asserts in his brief, much of the appeal could have been easily avoided by a brisk reading of the Civil Rules. In addition, the remedy Dahlquist seeks was always available to him through a collateral action, and he admitted at oral argument that he was aware of this remedy. Asserting his claim in this appeal of the confirmation of sale was improper. Affirmed.

Opinion Footnotes

*fn1 Dahlquist asserted a homestead claim for the first time in this objection.

*fn2 Hazel v. Van Beek, 135 Wn.2d 45, 954 P.2d 1301 (1998).

*fn3 (Emphasis added.)

*fn4 Hazel, 135 Wn.2d at 52-53.

*fn5 Braman v. Kuper, 51 Wn.2d 676, 681, 321 P.2d 275 (1958).

*fn6 Dahlquist asserted the trial court should refuse to confirm the sale because (1) the sale was void because Dahlquist resides on the property and the sale was executed under RCW 6.17 for non-homestead property and (2) the property was sold for a value far below the actual value of the homestead and the judgment amount.

*fn7 Dahlquist cites CR 5 (b)(2)(A) for this 'general rule': (2) Service by Mail. (A) How Made. If service is made by mail, the papers shall be deposited in the post office addressed to the person on whom they are being served, with the postage prepaid. The service shall be deemed complete upon the third day following the day upon which they are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday, in which event service shall be deemed complete on the first day other than a Saturday, Sunday or legal holiday, following the third day.

*fn8 CR 6(e) states: (e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.

*fn9 (Emphasis added.)

*fn10 Dahlquist cites Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990) (stating, 'Default judgments are disfavored, and therefore, a trial court should 'exercise its authority 'liberally, as well as equitably, to the end that substantial rights be preserved and justice between the parties be fairly and judiciously done.''') (quoting Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289 (1979)), review denied, 116 Wn.2d 1009 (1991).

*fn11 Vukich also argues the request for relief under CR 60 should be denied because it is restricted to judgments, and CR 60 motions must initially be heard by the trial court.

*fn12 A cursory review of the record suggests Dahlquist did not present this argument below. Although he cites CR 60 once in his Memorandum re: Objection to Motion Confirming Sheriff's Sale filed May 30, 2002, he does not present argument explaining why CR 60 applies in this case or why he should be granted relief under its authority.

*fn13 See Hazel, 135 Wn.2d at 53 (stating, 'When a debtor objects to confirmation of the sale on the ground that the underlying judgment is void, the 20-day deadline for objections cannot be raised as a bar to a trial court's considering the objection.'). See also Betz v. Tower Sav. Bank, 185 Wash. 314, 324, 55 P.2d 338 (1936) (stating, '{A}n order confirming a sale concludes inquiry into any irregularity attending it, save as to jurisdictional matters.'); Mueller v. Miller, 82 Wn. App. 236, 251, 917 P.2d 604 (1996) (stating, 'A trial court has no discretion when faced with a void judgment, and must vacate the judgment 'whenever the lack of jurisdiction comes to light.'') (quoting Mitchell v. Kitsap County, 59 Wn. App. 177, 180-81, 797 P.2d 516 (1990)).

*fn14 See Hazel, 135 Wn.2d at 53; Mueller v. Miller, 82 Wn. App. at 249; Northern Commercial Co. v. E. J. Hermann Co., Inc., 22 Wn. App. 963, 593 P.2d 1332 (1979).

*fn15 Traverso v. Cerini, 146 Wash. 273, 278, 263 P. 184 (1928).

*fn16 Mueller, 82 Wn. App. at 248.

*fn17 Domke v. Beck, 18 Wn.2d 568, 571, 139 P.2d 1017 (1943).

*fn18 146 Wash. 273, 279, 263 P. 184 (1928).

*fn19 Id. See also Costanzo v. Harris, 71 Wn.2d 254, 427 P.2d 963 (1967); Scott v. Guiberson, 72 Wash. 36, 129 P. 886 (1913).

*fn20 17 Wn. App. 181, 562 P.2d 648 (1977).

*fn21 Id. at 184 (emphasis added).

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