Jun 28 2007

Informal appearance

Published by at 4:24 pm under Washington

Washington courts In most sports, a team can lose by default – by failing to show up to play when appearance was expected. Same thing can happen in court cases. But wouldn’t you know there’s a gray area involved?

Consider this – three decisions on the matter today from the Washington Supreme Court.

One day in November 1998, a car owned by Bonnie Burris but driven by her son Jeffrey Barth rear-ended the car driven by Sherri Morin, who later reported medical costs as a result. Insurers were contacted and some money exchanged, but after a year with no settlement Morin hired an attorney to case the case to court, where it was filed in June 2001.

When that happened, Burris, the car owner, was personally served notice, and Barth, who couldn’t be found, was given notice “by publication,” an ad in the newspaper. Neither of them responded formally to the court, however, and in December 2002 a trial court gave Morin a default judgement against the other two. Many months later, in February 2004, Barth and Burris filed papers asking that default decision be set aside, since they had “informally appeared” at various points. As the Supreme Court wrote, “The trial court agreed and vacated the default judgment. Morin appealed. The Court of Appeals, Division One, concluded that in light of the prelitigation contact between Farmers and Morin, including the payment for property damage, the trial court had not abused its discretion in setting aside default judgment on the ground of an informal appearance.”

The Supreme Court disagreed.

From a key part of the decision:

This court has long favored resolution of cases on their merits over default judgments. Thus, we will liberally set aside default judgments pursuant to CR 55(c) and CR 60 and for equitable reasons in the interests of fairness and justice. Similarly, if default judgment is rendered against a party who was entitled to, but did not receive, notice, the judgment will be set aside. We have also held that the doctrine of substantial compliance applies to the notice requirement of CR 4 when enforcing or setting aside judgments under CR 55 and CR 60. Substantial compliance with the appearance requirement may be satisfied informally.

However, whether or not a party has substantially complied with the rules must be decided against the fact that litigation is a formal process.
Those who are served with a summons must do more than show intent to
defend; they must in some way appear and acknowledge the jurisdiction of the court after they are served and litigation commences. We disagree with
our learned colleagues below that prelitigation communication alone is
sufficient to satisfy a party’s duty to appear and defend against a court case.
Although substantial compliance with the appearance requirement can be
accomplished informally, we do not adopt the doctrine of informal
appearance as it has been formulated below.

We hold that merely showing intent to defend before a case is filed is
not enough to qualify as an appearance in court. Accordingly, we remand
Morin v. Burris . . . to the trial court for reentry of default judgment.

The court also, however, took a somewhat different view of two other cases involving informal appearances, and its conclusions – noted in the same decision – were rather different in those.

If you want to deal with a legal case informally, you can try – but you run a risk.

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