Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

IN THE MATTER OF THE PETITION OF                                 No.  41011-7-II
THE CITY OF GIG HARBOR, 
WASHINGTON, TO ACQUIRE BY 
CONDEMNATION CERTAIN REAL 
PROPERTY FOR PUBLIC USE AS 
AUTHORIZED BY ORDINANCE NO. 800 
OF SAID CITY,:

                             Petitioner below,

       v.

MARIA L. WILKINSON, DARRELL P.                             UNPUBLISHED OPINION
RODMAN, as Trustee of the Living Trust 
created under Agreement dated October 14, 
1988;  "JOHN DOE"      OR  "JANE DOE"        as 
trustee of the HELEN I. WILKINSON 
REVOCABLE TRUST, dated January 3, 1995; 
DARRELL DORMAN and JACK A. 
RODMAN, as Trustees of the LIVING 
TRUST OF HELEN I. WILKINSON, dated 
February 28, 1989; "JOHN DOE" OR "JANE 
DOE" as Trustee of the SONLIGHT TRUST; 
also all other persons or parties unknown 
claiming any rights, title, estate, lien or interest 
in the real estate described therein, 

No. 41011-7-II

                      Respondents below,

DARRELL RODMAN,

                             Appellant,

vs.

THOMAS DICKSON,

                             Respondent.
       Johanson, J.  --  This case concerns the timeliness of a CR 60(b) motion.  In 2004, Darrell 

Rodman failed to pay attorney fees and other professional fees incurred as a result of a 

condemnation action.   His  former  attorney, Thomas Dickson, and other creditors obtained a 

single judgment for their fees. In 2007, Rodman approached several of the creditors, including 

Dickson, and reached settlement agreements with them.  Rodman and Dickson dispute whether or 

not this agreement discharged all remaining debt obligations under the 2004 judgment.  In January 

2009, Dickson obtained a disbursement, from funds held in the court registry to pay Rodman's 

debts, to satisfy debt related to the 2004 judgment. Then, in September 2009, Dickson sought 

amendment of his portion of the 2004 judgment.  Finally, in December 2009, Dickson obtained a 

writ of garnishment against some of Rodman's financial interests.

       In June 2010, Rodman filed a CR 60(b) motion to disgorge the January 2009 disbursed 

funds, vacate the September 2009 amended judgment (2009 amended judgment), and vacate the 

December 2009 writ of garnishment.  The trial court dismissed Rodman's motion  as being 

untimely filed and he appealed.  We reverse and remand.

                                            FACTS

                                               2 

No. 41011-7-II

       Thomas Dickson represented Rodman in a condemnation action brought by the City of 

Gig Harbor against Darrell Rodman and others. Rodman did not pay Dickson's attorney fees and 

other professional fees incurred during this litigation.  In 2003, an attorney at Dickson's firm

obtained an attorney's lien on Rodman's interest in a family estate.

       In  December  2004,  five parties  from the underlying condemnation action proceedings 

obtained a single judgment (2004 judgment) against Rodman  for a total of $170,887.82  in 

principal and prejudgment interest. Dickson's portion of the 2004 judgment included $13,982.35

in principal, with a 12 percent interest rate on this amount, and $2,937.44 in prejudgment interest, 

for a total of $16,919.79 plus interest.

       The 2004 judgment also awarded $49,202.00 to the creditors' attorneys Kinnon Williams

and Catherine Clark.  In February 2007, Clark's attorney signed a document on Clark's behalf 

titled "partial satisfaction of judgment" in which Clark, as assignee of Williams Clark, PSC,

accepted an undisclosed amount of money as a "full satisfaction and settlement of the [2004] 

judgment amount owed" to them.      Clerk's Papers (CP) at 7.1  In March 2007, Rodman paid 

Dickson $15,000 and Dickson signed a document titled "Partial Satisfaction of Judgment" (March 

2007 agreement).  That document contained only one sentence:  

              The undersigned, Thomas L. Dickson, the attorney          in fact  and the 
       successor in interest to the Dickson Law Offices, PLLC., with complete and 
       binding authority from his predecessor and client, does hereby acknowledge full 
       satisfaction and settlement of the judgment amount owed to the Dickson Law 
       Offices, PLLC., as the successor in interest, under judgment in the above entitled 
       manner [sic], and by this document, further releases the Dickson Law Office, 
       PLLC, portion of the judgment on record as judgment number 05-9-00030-0,

1 Eventually, in March 2010, Clark filed a declaration clarifying that "irrespective of the title of the 
document including the word 'partial,' [it] was a full satisfaction and release." CP at 127.

                                               3 

No. 41011-7-II

       which was entered in this cause on December 30, 2004.

CP at 193 (emphasis added). The signed agreement was notarized.2

       In 2008, a personal representative of an estate that Rodman had an interest in requested a 

hearing to settle liens. Dickson filed a declaration including a calculation of the amount he 

believed Rodman still owed him (September 2008 declaration).  Dickson's calculation applied 

$8,299.65 of the $15,000 he received from Rodman in March 2007 to costs associated with legal 

services separate from those accounted for in the 2004 judgment.  Dickson's calculations applied 

the rest of the $6,700.35 from the March 2007 payment to Rodman's debt related to the 2004 

judgment.3 Ultimately, Dickson's calculations and declared expenses for collection attempts up to 

September 2008 produced a remaining debt obligation of $30,468.57.

       On January 13, 2009, one of the other creditor's from the 2004 judgment filed a motion 

and declaration seeking disbursement of $94,827.51 to satisfy part of its portion of the 2004 

judgment.  This money had been placed in the Pierce County Superior Court registry, after a 2007 

real estate transaction, for use to satisfy Rodman's legal debts.  On January 22, Dickson filed an 

2 The record contains a variety of documents about the satisfaction of the debts of other creditors 
that are part of the 2004 judgment.  These documents do not appear to be relevant to the issues 
on appeal.  But to the extent these documents might be relevant to show when Rodman tried to 
satisfy his legal debts, they were similar in title and scope and they were signed by the other 
creditors between February and August 2007.

3 Accordingly, Rodman's statement of the case is inaccurate when he states that, "At no time did 
Mr. Thomas Dickson inform the Court that on March 29, 2007, he already fully satisfied his 
portion of the original [2004] judgment (or even he was paid $15,000.00 toward [the 2004]
judgment)."  Br. of Appellant at 11 (capitalization and boldface omitted).  In fact, Dickson's 
September 2008 declaration states, "I received a payment of $15,000 on Rodman's behalf in 
March 2007.  I have not received any other payment since entry of the [2004] judgment 
[previously] mentioned." CP at 28.

                                               4 

No. 41011-7-II

objection to the disbursement and sought a proportional share of the available funds because his 

"[2004] judgment has not been fully satisfied." CP at 25. The next day, on January 23, the trial 

court ordered the disbursement of $13,638.11 to Dickson and the remaining funds to the other 

creditor.  Rodman did not receive notice of Dickson's objection and, therefore,  he  had no 

knowledge of Dickson's involvement       in the litigation before the trial court granted the 

disbursement of funds.  See CP 247-48 (declaration of service).  Dickson mailed notice of his 

objection and his request for part of any disbursed funds on January 22.  The trial court granted 

the disbursement requests, with part dispersed to Dickson and the rest dispersed to the other 

creditor, the very next day. 

       On September 15, 2009, Dickson moved to amend the 2004 judgment, which he asserted 

remained "partially unsatisfied." CP at 89.  Specifically, he requested inclusion of $7,466.50 in 

attorney fees related to time that his law firm spent to obtain the original 2004 judgment.  Dickson 

claimed that he submitted this fee request to the lead attorneys, Williams and Clark, but they were 

inadvertently omitted from the original attorney fees request.  Clark submitted a declaration 

corroborating Dickson's declaration.  Dickson also requested inclusion of $13,147.00  in the 

judgment for fees incurred so far in attempting to collect on the 2004 judgment.  Dickson sent 

Rodman a copy of the motion to amend on September 14, and Clark sent a copy of her 

declaration to Rodman on September 17.

       On September 25, the trial court amended the original 2004 judgment only with regard to 

Dickson (2009 amended judgment).  The trial court noted that of Dickson's original $16,919.79 

(plus interest) award, Rodman owed a remaining balance of $3,489.98.4  The trial court then 

                                               5 

No. 41011-7-II

amended the  2004  judgment to include the $20,613.50 for the old attorney fees and recent 

collection endeavors.  Under the 2009 amended judgment, Rodman owed Dickson $24,103.48 

with a 12 percent interest rate.  In December 2009, Dickson sought a garnishment of monies that 

the family estate owed Rodman.

       In late 2009, the personal representative of the same estate previously  described again 

sought to resolve any liens. Dickson again filed declarations calculating the amount of money he 

believed Rodman owed him.  In March 2010, the trial court ruled that the attorney liens on the 

estate were not enforceable because they had not been adjudicated within the statute of 

limitations.5   Dickson did not appeal this ruling and filed a new declaration with a revised 

calculation of Rodman's debt obligation, which omitted money attributed to the stricken lien.

       On  June 1, 2010,  Rodman filed a CR 60(b) motion  to disgorge the January  2009 

distributed funds, vacate Dickson's September 2009 amended judgment, vacate the December 

2009 writ of garnishment, and order the full satisfaction of Dickson's part of the 2004 judgment 

based on the March 2007 agreement.  Specifically, Rodman cited CR 60(b)(1) "irregularity in 

4 The trial court's calculation of this amount is not clear based on the record on review.  Under 
the most generous calculation favoring Rodman's position, if the full $15,000 that Rodman paid 
Dickson in March 2007 was applied to the 2004 judgment amount, then $1,919.79 would remain 
without accounting for any interest.  A 12 percent interest rate from 2004 to 2007 on the original 
principal, plus interest on the remaining amount after March 2007 until September 2009, would 
have easily generated more than $2,470.17 (the difference between the trial court's calculated 
remaining balance and $1,919.79).  On remand, if the resolution of the case requires it, the trial 
court should review its calculation.

5 The trial court's March 2010 order and any written rulings are not in the record on review.  This 
description of the ruling is contained in a declaration made by Dickson.  It is unclear what specific 
attorney liens were invalidated and how the trial court's ruling specifically impacted Rodman's 
alleged continuing debt obligation. 

                                               6 

No. 41011-7-II

obtaining a judgment or order," (4) "fraud," (5) "judgment is void," and (6) "judgment has been 

satisfied, released or discharged" as grounds for relief.  The exhibits attached to his motion 

included (1) a declaration by Noel Shillito (Rodman's attorney who negotiated the 2007 

agreements with the 2004 judgment's creditors) stating that documents were labeled "Partial 

Satisfaction[s]" to distinguish between the rights of the various creditors; (2) a copy of the March 

2007 agreement signed by Dickson; and (3) copies of other creditors' signed agreements.  CP 155-

56.  Dickson filed a declaration stating that he had not carefully reviewed the March 2007 

agreement before signing because he relied on the document's title and his understanding of the 

negotiations that the $15,000 payment was a partial satisfaction of the debt.

       On July 2, the trial court held a show cause hearing on Rodman's motion.  At the hearing, 

Rodman argued that, by the plain language of the March  2007  agreement Dickson signed, 

Rodman had fully satisfied Dickson's portion of the 2004 judgment with the $15,000 payment.  

Also, Rodman argued that the reference to a "partial satisfaction" in the document's title was 

legally accurate because Dickson had only a fractional interest in the entire 2004 judgment.  

Report of  Proceedings (RP) (July 2, 2010) at 3.  Finally, Rodman argued that Dickson's 

subsequent 2009 amended judgment was obtained by fraud because he had failed to inform the 

court of the March 2007 agreement (satisfaction).

       At the hearing, Dickson argued that Rodman had not filed his CR 60(b) motion within a

reasonable time.  Dickson contended that Rodman should have raised his satisfaction defense as 

early as September 2008 when Dickson filed the September 2008 declaration indicating that he 

did not think his part of the original judgment had been fully satisfied. On the merits of Rodman's 

                                               7 

No. 41011-7-II

motion, Dickson argued that the March  2007  agreement was ambiguous because the title 

references a "partial satisfaction" whereas the text references a "full satisfaction." CP at 193 

(some capitalization omitted). Thus, he believed that, because the document itself contained an 

ambiguity, the trial court had to evaluate the parties' intent of the document's effect.  Based on 

his declarations,  Dickson argued that the trial court could find that the parties intended the 

$15,000 payment as a partial satisfaction of the 2004 judgment's debt.

       The trial court denied Rodman's motion in its entirety. Although the trial court included 

no explanation of its denial in the final written order, the trial court stated at the July 2 hearing, 

"It's clear in this case that this motion is untimely." RP (July 2, 2010) at 19.  The trial court 

reasoned that Rodman filed his motion well after "it should have been brought."6 RP (July 2, 

2010) at 19.  The trial court also stated that "the satisfaction was treated as partial by [Rodman 

and his] attorney, at least at the time." RP (July 2, 2010) at 19. Rodman timely appeals.

                                          ANALYSIS

       Rodman appeals the trial court's denial of his CR 60(b) motion with regard to (1) the 

January 2009 disbursement of funds to Dickson, (2) the September 2009 amended judgment of 

Rodman's debt to Dickson, (3) the December 2009 writ of garnishment, and (4) the trial court's 

refusal to order Rodman's debt to Dickson discharged by the March 2007 agreement.  On review 

of an order that denies a CR 60(b) motion to vacate a judgment or order, only the propriety of the 

denial, not the impropriety of the underlying judgment or order, is before the reviewing court.

6 The trial court reasoned that Rodman should have filed his motion as early as September 2008, 
after he took notice of Dickson's September 2008 declaration, or as late as immediately following 
the entry of the 2009 amended judgment.

                                               8 

No. 41011-7-II

Barr v. MacGugan, 119 Wn. App. 43, 48 n.2, 78 P.3d 660 (2003); Bjurstrom v. Campbell, 27 

Wn. App. 449, 451 n.2, 618 P.2d 533 (1980); see also In re Dependency of J.M.R., 160 Wn. 

App. 929, 938-39 n.4, 249 P.3d 193, review granted, 172 Wn.2d 1017 (2011).      Accordingly, we 

do not evaluate the merits of Rodman's CR 60(b) motion.  Because the trial court dismissed 

Rodman's motion on timeliness grounds, we limit our review to whether the trial court erred in its 

CR 60(b) timeliness analysis.

                           Timeliness of Rodman's CR 60(b) Motion

       Rodman argues that filing his CR 60(b) motion eight months after the September 2009

amended judgment was reasonable.  And, Rodman argues that he can always challenge an order 

that Dickson improperly obtained, based on the theory that Dickson had no legal authority to 

support subsequent court actions after he signed the March 2007 agreement discharging any debt 

obligations.  Dickson argues that Rodman's delay in filing his motion eight months after the 

September 2009 amended judgment was not reasonable.  Moreover, Dickson contends that the 

real time frame for evaluating the timeliness of the motion should stretch back even further, to 

Dickson's September 2008 declaration, in which he asserted that Rodman's debt had not been 

fully satisfied when asking the trial court to distribute some of the court registry funds to him.  

Because the trial court erred in its timeliness analysis, we reverse and remand for further 

consideration of Rodman's CR 60(b) motion.

       We review a trial court's decision on a motion to vacate under CR 60(b) for an abuse of 

discretion.  Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978); Mitchell v. Wash. State 

Inst. of Pub. Policy, 153 Wn. App. 803, 821, 225 P.3d 280 (2009), review denied, 169 Wn.2d 

                                               9 

No. 41011-7-II

1012, 236 P.3d 205 (2010).  "An abuse of discretion is present only if there is a clear showing 

that the exercise of discretion was manifestly unreasonable, based on untenable grounds, or based 

on untenable reasons."   Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995).  "A 

decision is based 'on untenable grounds' or made  'for untenable reasons' if it rests on facts 

unsupported in the record or was reached by applying the wrong legal standard."    Mitchell, 153 

Wn. App. at 821-22 (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (internal 

quotation marks omitted). 

       CR 60(b) motions must be timely filed.  Grounds for relief based on CR 60(b)(1) 

(irregularity in obtaining a judgment or order) must be filed within a reasonable time and not more 

than one year from the date of the challenged judgment, order, or proceeding.  Luckett v. Boeing 

Co., 98 Wn. App. 307, 310, 989 P.2d 1144 (1999), review denied, 140 Wn.2d 1026 (2000).  

Grounds for relief based on CR 60(b)(4) "fraud," (5) "judgment is void," and (6) "judgment has 

been satisfied, released or discharged" must be filed within a reasonable time from the date of the 

challenged judgment, order, or proceeding.  Luckett, 98 Wn. App. at 311.  

       What constitutes a "reasonable time" depends on the facts and circumstances of each case.  

Luckett, 98 Wn. App. at 312; see In re Marriage of Thurston, 92 Wn. App. 494, 500, 963 P.2d 

947 (1998), review denied, 137 Wn.2d 1023 (1999).  The critical period for determining whether 

a motion to vacate is brought within a reasonable time is the period between when the moving 

party became aware of the judgment and the filing of the motion. Luckett, 98 Wn. App. at 312.  

Considerations in determining a CR 60(b) motion's timeliness are prejudice to the nonmoving 

party and whether the moving party has good reasons for failing to take appropriate action 

                                               10 

No. 41011-7-II

sooner.  Luckett, 98 Wn. App. at 312-13 (citing Thurston, 92 Wn. App. at 500).

       We reject Dickson's argument, and the trial court's analysis, that the period for evaluating

the motion's timeliness includes events occurring before the trial court entered the amended 

judgment (i.e., before September 2009).  At the July 2010 show cause hearing, the trial court 

stated that Rodman's motion "should have been brought" as early as September 2008 or as late as 

immediately following entry of the September 2009 amended judgment.  RP (July 2, 2010) at 19.  

The  September 2008 date presumably correlates with Dickson's September 2008 declaration 

where he asserted a right to some of the court registry monies, which were ultimately distributed 

in January 2009.

       But CR 60(b)'s timeliness requirements are calculated from the date that the "judgment

. . . was entered or taken." Therefore, the correct time frame for evaluating the timeliness of 

Rodman's motion begins with the entry of the challenged judgments or orders.  Here, the trial 

court entered the disbursement order in January 2009, the September 2009 amended judgment, 

and  the  garnishment order in December 2009.      Thus, the trial court should have evaluated 

whether the filing of a CR 60(b) motion was reasonable from the dates the trial court entered 

these orders.

       In addition, the trial court's analysis is one statement, "It's clear in this case that this 

motion is untimely." RP (July 2, 2010) at 19.  This conclusory statement does not elucidate much 

of the trial court's analysis.  But given that Rodman's legal debts are complex, that the facts of 

this case span multiple years, and that Rodman has retained several different attorneys at different 

stages of these proceedings, it was not unreasonable for Rodman to need considerable time to 

                                               11 

No. 41011-7-II

unravel the events leading up to the entry of the trial court's orders and judgment.  Moreover, it is 

unclear from the record when Rodman had notice of various trial court proceedings, particularly 

the January 2009 order of disbursement entered the day after Dickson put a copy of his objection

to Dickson's motion for disbursement in the mail.  When we consider the relevant time periods 

involved, we conclude that a reasonable trial court would determine that Rodman timely filed his 

CR 60(b) motion, at least under CR 60(b)(4)-(6)'s "reasonable time" standard.

                                Trial Court's Challenged Finding

       Although we do not review the merits of Rodman's CR 60(b) motion because the trial 

court based its dismissal on timeliness grounds, we briefly discuss one other issue. The parties 

argue extensively  in their briefs about  the trial court's factual finding  related to the parties'

intended impact of the March 2007 agreement.  Specifically, Rodman asserts that the trial court 

erred when it found that the March 2007 agreement contained ambiguities and that, based on 

Dickson's declared understanding of the document, the satisfaction fully satisfied Rodman's 

original debt to Dickson.  But the trial court never evaluated the merits of Rodman's motion 

because it dismissed the motion on timeliness grounds.  The notice of appeal does not include any 

written findings of fact and the record contains no order of written findings.

       But, to the extent the trial court did make an oral finding on the merits of Rodman's CR 

60(b)  motion at the show cause hearing, the parties mischaracterize the "finding."        After 

dismissing Rodman's motion as untimely, the trial court stated:

       THE COURT:  [A]nd further, the satisfaction was treated as partial by Mr. 
       Rodman's attorney, at least at the time.
       [RODMAN'S CURRENT ATTORNEY]:  Just to clarify.  Your ruling is that the 
       satisfaction was partial as intended by [Rodman's former attorney?].

                                               12 

No. 41011-7-II

       THE COURT:  And by Mr. Rodman.

RP (July 2, 2010) at 19-20.  To the extent the trial court's statement is a finding, which we do not

hold, the "finding" is that Rodman and his former attorney intended the March 2007 agreement to 

be a partial satisfaction of Dickson's portion of the 2004 judgment.  Notably, though, this 

"finding" is not sustained by the record.

       We review findings of fact for substantial evidence. Cent. Puget Sound Reg'l Transit 

Auth. v. Miller, 156 Wn.2d 403, 419, 128 P.3d 588 (2006).  All of the evidence in the record, 

including multiple declarations and exhibits by other creditors signing similarly worded 

documents, would support a finding opposite to the trial court's -- that Rodman and his attorney's

intent for the March 2007 agreement with Dickson was a full satisfaction of the original debt.  

Dickson's declarations about his intent cannot support a finding about Rodman's and Rodman's

attorney's intent.  Thus, to the extent the trial court entered a "finding" about Rodman's and his 

attorney's intent of the March 2007 agreement, the trial court's "finding" is not supported by 

substantial evidence.

                                      ATTORNEY FEES

       Both parties seek attorney fees on appeal.   Dickson does not prevail on appeal and we 

deny his attorney fee request.  Rodman argues that an attorney fees award is warranted because 

Dickson's arguments are meritless or frivolous.  We disagree that Dickson's arguments are 

meritless or frivolous and deny Rodman's attorneys fee requests. 

       We reverse the trial court's dismissal of Rodman's CR 60(b) motion on timeliness grounds 

and remand for further consideration in light of this opinion.

                                               13 

No. 41011-7-II

       A majority of this panel has determined that this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

                                                                   Johanson, J.
We concur:

                  Hunt, P.J.

                 Van Deren, J.

                                               14