IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 NATALIE SUTEY and JOHN SUTEY,
 husband and wife,                               No. 79510-4-I

                     Respondents,                DIVISION ONE

              v.                                 PUBLISHED OPINION

 T26 CORPORATION, a Washington
 corporation; WILLIAM SECHTER and
 JANE DOE SECHTER, husband and
 wife, and the marital community
 composed thereof; MARC WILABY
 and JANE DOE WILABY, husband and
 wife, and the marital community
 composed thereof; ALAN
 WINNINGHAM and JANE DOE
 WINNINGHAM, husband and wife, and
 the marital community composed
 thereof; MICHAEL VISSE and JANE
 DOE VISSE, husband and wife, and
 the marital community composed
 thereof,

                     Defendants,

 ANTHONY BERGIN and JANE DOE
 BERGIN, husband and wife, and the
 marital community composed thereof,

                     Appellant.

      APPELWICK, J. — In August 2015, the Suteys obtained a default judgment

against Bergin. In August 2018, the Suteys sought a writ of garnishment. Bergin

filed a motion to vacate the order of default and default judgment under CR 60(b)

and to quash the writ of garnishment. The trial court denied his motion and
No. 79510-4-I/2


awarded the Suteys attorney fees. Bergin argues that the default judgment is void

because he was not properly served with the summons in this case. He also

contends that the Suteys made misrepresentations to the trial court regarding

service of the summons and complaint, allowing them to procure the judgment

through fraud. Last, he asserts that the trial court abused its discretion in awarding

the Suteys attorney fees for defending the motion to vacate. We affirm.

                                       FACTS

       In October 2009, Anthony Bergin started the business T26 Corporation.

The purpose of T26 was to create a business model that consolidated lifestyle,

health, and fitness service providers from multiple sectors “into one brick and

mortar service destination.” In April 2010, Bergin signed an operational agreement

between T26, “its princip[als], agents, employees, contractors, and associates,”

and Natalie Nunamaker.1 The agreement stated that Nunamaker would provide

support services to T26 without pay unless and until T26 entered “pre-operations,”

the time period between receiving funding from outside investors and the

beginning of construction of T26 locations.

       In April 2011, Nunamaker quit working for T26. Despite receiving funding

from various investors, T26 had failed to pay her. Nunamaker and her husband,

John Sutey, eventually sued T26, Bergin, and several other individuals. They

alleged various claims, including breach of contract, breach of implied covenant of

good faith and fair dealing, and willful withholding of wages.

       1
       Nunamaker has since married and her last name is now Sutey. For clarity,
we refer to her individually as Nunamaker. We refer to Nunamaker and her
husband, John Sutey, collectively as the Suteys.


                                              2
No. 79510-4-I/3


       The Suteys initially had trouble serving the summons and complaint on T26.

On February 9, 2012, a process server attempted to serve the summons and

complaint on T26 at an address on Ashworth Avenue. But, Bergin’s wife told the

server that Bergin was out of town. On February 13, Bergin told the server to take

the summons and complaint to his lawyer. The return of service form does not

indicate how Bergin communicated this information. On February 14, the server

personally served T26 at the same Ashworth address by leaving the summons and

complaint with attorney Garth Schlemlein.2 On March 20, the Suteys amended

their complaint and sent T26’s attorney, Theresa Goetz, a copy of that complaint.

       On March 28, 2012, Goetz sent the Suteys a signed notice of appearance,

stating that she was appearing on behalf of the defendants, including Bergin. The

Suteys’ attorney, Brian Chase, received the notice on April 2. On April 5, Bergin

was personally served with a copy of the Suteys’ amended complaint, and original

summons and complaint, at the Ashworth address. However, the record does not

reflect that the documents served on April 5 were filed.

       T26 then engaged in prelitigation discovery with the Suteys. In response to

the Suteys’ first set of interrogatories for T26, Bergin identified himself as a director

of the business. In response to an interrogatory about whether T26 was claiming

improper service, T26 stated, “The Defendants have not filed an answer to the

Complaint or Amended Complaint so they have not yet asserted any affirmative


       2 The return of service form does not indicate if Schlemlein was serving as
counsel for T26, Bergin, or both. Attorney Theresa Goetz, who later signed a
notice of appearance on behalf of Bergin, worked at the same firm as Schlemlein
at the time.


                                               3
No. 79510-4-I/4


defenses.”   On July 17, 2012, Bergin signed the answers to the first set of

interrogatories. In doing so, he acknowledged that he was one of the defendants

in the action. Goetz notarized the answers. In late 2012, Bergin was forced out of

T26.

       As a result of discovery, the Suteys learned that two additional people, Alan

Winningham and Michael Visse, were necessary parties to the case. Thus, on

December 18, 2012, they amended their complaint to add Winningham and Visse

as defendants. They sent Goetz a copy of the second amended complaint. On

March 4, 2013, the Suteys amended their complaint again to correct the spelling

of Winningham’s and Visse’s names. They sent a copy of the third amended

complaint to Goetz. They also personally served defendants William Sechter,

Marc Wilaby, and Winningham with copies of the third amended summons and

complaint.3 Chase received another written notice of appearance from Goetz on

behalf of all of the defendants on April 1.

       The Suteys did not file their third amended complaint until June 26, 2013.

They also filed the summons on that date. The electronically filed summons and

complaint were not signed. On June 28, 2013, Goetz filed a notice of appearance

with the court. She stated that she was appearing for defendants T26, Sechter,

Wilaby, Winningham, and Visse. She did not state that she was appearing for

Bergin.



       3
       It is unclear from the record whether Visse was also personally served with
this complaint. Chase stated in a declaration that Sechter, Wilaby, and
Winningham were personally served, and did not address service on Visse.


                                              4
No. 79510-4-I/5


       On July 8, 2013, the Suteys filed motions for orders of default against all of

the defendants, including Bergin. As to Bergin, they alleged that he was personally

served with a copy of the summons and complaint in April 2012. They asserted

that “[m]ore than twenty (20) days have passed and no answer has been received

or filed.” They also mentioned that they had received a notice of appearance from

Bergin’s attorney Goetz. The parties do not address the outcome of these motions

in their briefing. Based on the trial court docket, it appears that the motions were

never decided.

       Later that month, on July 26, 2013, Goetz filed a notice of intent to withdraw

as counsel for Bergin. She stated that her withdrawal would be effective August

9, 2013. She provided the Ashworth address as Bergin’s last known address.

       In January 2014, the Suteys moved for leave to amend their complaint.

They explained, “Plaintiffs are required under CR 15(a) to obtain leave of court in

order to file a second amended complaint.”4 The electronically filed motion was

not signed. In a declaration of mailing filed the same day, Mary Nunamaker5 stated

that she mailed a copy of the motion to Bergin at the Ashworth address. The trial

court granted the Suteys’ motion on February 24, 2014. It explained that they were




       4   It is unclear why the Suteys referenced a second amended complaint
instead of their third amended complaint, which they filed in June 2013. Because
the trial court granted them leave to file their “third amended complaint,” it appears
that they were referring to that complaint.
        5 For clarity, we refer to her throughout the remainder of the opinion as Mary.

Although Mary shares a last name with Nunamaker, she was not a party to the
case. Rather, she was Chase’s legal assistant.


                                              5
No. 79510-4-I/6


allowed to file their “third amended complaint” within 10 days of the date of the

order.6

          On March 3, 2014, the Suteys again filed their third amended complaint.

The electronically filed complaint was not signed. In a declaration of mailing also

dated March 3 and signed by Mary, she stated that she mailed a copy of the third

amended complaint to Bergin at the Ashworth address. A limited liability company

created by Bergin the next month listed the Ashworth address as his street

address.

          On May 22, 2014, the Suteys filed another motion for order of default

against Bergin. They again alleged that Bergin was personally served with a copy

of the summons and complaint in April 2012, and that they had received a notice

of appearance from Bergin’s attorney Goetz. Although Goetz later withdrew as

counsel for Bergin in August 2013, they assumed for purposes of the motion that

Bergin had appeared in the action. They also stated that they had mailed a copy

of the third amended complaint to Bergin in March 2014.

          In support of their motion, the Suteys relied on CR 15(a), which provides

that “[a] party shall plead in response to an amended pleading within the time

remaining for response to the original pleading or within 10 days after service of

the amended pleading, whichever period may be the longer, unless the court


          6
          As noted above, the Suteys filed their third amended complaint a year
earlier in June 2013. It is unclear why the Suteys then moved for leave to file this
complaint in January 2014. It appears they were concerned that they would be out
of compliance with CR 15(a) if they did not seek leave to file the third amended
version. The third amended complaint filed in June 2013 and the third amended
complaint filed in March 2014 are identical.


                                             6
No. 79510-4-I/7


otherwise orders.” According to the Suteys, more than 10 days had passed since

Bergin was served with the third amended complaint, and Bergin had failed to

plead or answer. In a declaration of mailing also filed on May 22, Mary stated that

she mailed a copy of the motion to Bergin at the Ashworth address. On June 19,

2014, the trial court granted the Suteys’ motion and entered an order of default

against Bergin.

       About nine months later, in March 2015, a notice of settlement was filed

with the trial court. The notice informed the court that the Suteys’ claims against

defendants T26, Sechter, Wilaby, Winningham, and Visse had been resolved. In

April 2015, the trial court entered an order dismissing the Suteys’ claims against

those defendants with prejudice.

       On June 4, 2015, the Suteys moved for default judgment against Bergin.

They sought a total judgment amount of $142,562.80. On August 10, 2015, the

trial court granted the Suteys’ motion. It found that Bergin was personally liable to

Nunamaker “for her unpaid wages, double-damages, [and] reasonable attorney’s

fees and costs.”    It therefore awarded the Suteys a total of $142,562.80 in

damages.

       In May 2018, the Suteys attempted to collect on their judgment against

Bergin. They sent a writ of garnishment to a number of physical addresses thought

to be associated with him, as well as an e-mail address. In August 2018, after

Bergin failed to respond, the Suteys filed a motion against the garnishee

defendant, Materia Group Incorporated. In November 2018—over three years

after the trial court entered a default judgment against him—Bergin filed a motion


                                             7
No. 79510-4-I/8


to vacate the order of default and default judgment, and to quash the writ of

garnishment. He alleged the following:

             1.     This action was not initiated within 90 days of the
      alleged service upon Anthony and therefore has no force or effect.
      RCW 4.16.170.

            2.      [Bergin] was not served with the summons and
      complaint filed in this action. CR 5.

             3.     The summons filed in this action is unsigned and
      therefore defective. CR[ ]4; CR 11.

             4.     [Nunamaker] failed to serve [Bergin] with the motion for
      default as required by CR 55.

            Thus, the Order and the Judgment should be vacated under
      CR 55 and 60.

Citing CR 60(b), Bergin argued that the default judgment was void. He also

asserted that the Suteys’ misrepresentations to the court regarding service of the

summons and complaints constituted fraud.

      The trial court denied Bergin’s motion to vacate. It found that, on April 2,

2012, Goetz appeared on Bergin’s behalf in the case. It also found that, on April

5, 2012, Bergin was personally served with the original summons and complaint

at the Ashworth address.      Further, it found that, after Goetz withdrew from

representing Bergin in August 2013, “Bergin was thereafter served copies of

relevant pleadings via mail, including a motion to amend the complaint, a motion

for a default order, and a motion for a default judgment against him.” Last, as to

the unsigned summons and complaints, it found,

      Be[r]gin disputes that summons and complaints were signed by
      counsel, given that electronically filed copies to [sic] do not contain a
      handwritten signature. Former counsel for Sutey, in the Declaration
      of Brian Chase suggests otherwise. Further, attached copies filed


                                             8
No. 79510-4-I/9


      as exhibits contain signatures, e.g.[,] exhibits A[ ]& B of sub 36. The
      Court finds that all inferences can be made to support a finding that
      Bergin was provided signed copies of necessary summons and
      complaints.

      Accordingly, the trial court concluded,

      1. Attorney Goetz’s notice of appearance on behalf of Bergin served
         on April[ ]2, 2012 remained in effect at time of the filing of the
         case. Therefore CR 55 (f)(2) does not apply. Service by mail on
         the defendant pursuant to CR 5(b)(2) is sufficient to provide
         notice of the motion for default which is subject to this motion.

      2. No legal grounds exist to vacate the default or default judgment.

      3. Defendant Bergin’s motion to vacate is denied.[7]

The court also granted the Suteys’ request for attorney fees for defending the

motion. It awarded them a total of $7,350.00.

      Bergin appeals.

                                  DISCUSSION

      Bergin makes three main arguments. First, he argues that the trial court

abused its discretion in denying his motion to vacate, because the default judgment

against him is void under CR 60(b)(5). He makes a number of assertions in

support of this argument, including that he was not properly served with the

summons in this case. Second, he argues that the Suteys’ misrepresentations to

the trial court regarding service of the summons and complaint constituted fraud

on the court under CR 60(b)(4). Third, he argues that the trial court abused its

discretion in awarding the Suteys attorney fees for defending the motion to vacate.


      7  In referring to Goetz’s notice of appearance on behalf of Bergin, the trial
court stated that the notice was instead “served on April 12, 2012.” This appears
to be a scrivener’s error. In its findings of fact, the trial court found that Goetz
appeared on Bergin’s behalf “[o]n April 2, 2012.” Also, the signed notice of
appearance in the record states that Chase received the notice on April 2, 2012.


                                            9
No. 79510-4-I/10


       A court may set aside a default judgment in accordance with CR 60(b). CR

55(c)(1). CR 60(b) provides in part,

       On motion and upon such terms as are just, the court may relieve a
       party or the party’s legal representative from a final judgment, order,
       or proceeding for the following reasons:

              ....

              (4) Fraud (whether heretofore denominated intrinsic or
       extrinsic), misrepresentation, or other misconduct of an adverse
       party;

              (5) The judgment is void.

This court reviews a trial court’s decision on a motion to vacate a default judgment

for abuse of discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007).

A trial court abuses its discretion when it is exercised on untenable grounds or for

untenable reasons. Id. On the other hand, whether a judgment is void is a

question of law that this court reviews de novo. Castellon v. Rodriguez, 4 Wn.

App. 2d 8, 14, 418 P.3d 804 (2018).

  I.   Whether the Default Judgment is Void

       Bergin argues first that the default judgment against him is void. In doing

so, he asserts that he was never served with a summons in this case. If he was

served, he argues that he was not served with a proper summons, because the

summons served on him was not signed. He bases the argument on the fact that

the summons filed with the court was not signed. He argues last that the summons

filed was not the summons served, because it contains the names of defendants

added to the action after he was served.




                                            10
No. 79510-4-I/11


       CR 60(b)(5) authorizes the trial court to relieve a party from a final judgment

if that judgment is void. Courts have a mandatory, nondiscretionary duty to vacate

void judgments. Ahten v. Barnes, 158 Wn. App. 343, 350, 242 P.3d 35 (2010). A

default judgment is void if the issuing court lacks personal jurisdiction over the

party or subject matter jurisdiction over the claim. See Rabbage v. Lorella, 5 Wn.

App. 2d 289, 297, 426 P.3d 768 (2018). “In personam jurisdiction is obtained upon

the initial service of process.” Id. at 299. Thus, to invoke personal jurisdiction over

a party, proper service of the summons and complaint is essential. Ahten, 158

Wn. App. at 349-50.

       “Service of process must comply with constitutional, statutory, and court rule

requirements.” Walker v. Orkin, LLC, 10 Wn. App. 2d 565, 568, 448 P.3d 815,

review denied, 195 Wn.2d 1009, 460 P.3d 169 (2019). A plaintiff bears the initial

burden to prove a prima facie case of sufficient service. Scanlan v. Townsend,

181 Wn.2d 838, 847, 336 P.3d 1155 (2014). The party challenging the sufficiency

of service must demonstrate by clear and convincing evidence that the service was

improper. Id. We review whether service was proper de novo. Id.

       CR 3 governs commencement of an action. CR 3(a) provides in part, “[A]

civil action is commenced by service of a copy of a summons together with a copy

of a complaint, as provided in rule 4 or by filing a complaint.” CR 4(a) governs

issuance of a summons. CR 4(a)(1) provides that the summons “must be signed

and dated by the plaintiff or the plaintiff’s attorney.” The word “must” imposes a

mandatory requirement. Walker, 10 Wn. App. 2d at 572.




                                             11
No. 79510-4-I/12


       CR 4(b) governs the content and form of the summons.                CR 4(b)(1)

provides,

       Contents. The summons for personal service shall contain:

              (i) the title of the cause, specifying the name of the court in
       which the action is brought, the name of the county designated by
       the plaintiff as the place of trial, and the names of the parties to the
       action, plaintiff and defendant;

             (ii) a direction to the defendant to serve a copy of the
       defendant’s defense within a time stated in the summons;

              (iii) a notice that, in case of failure so to do, judgment will be
       rendered against the defendant by default. It shall be signed and
       dated by the plaintiff, or the plaintiff’s attorney, with the addition of
       the plaintiff’s post office address, at which the papers in the action
       may be served on the plaintiff by mail.

CR 4(b)(2) states that the summons for personal service must substantially comply

with “the following form.” The form set forth shows that the plaintiff or plaintiff’s

attorney must sign the summons and print or type the name below the signature

line. CR 4(b)(2).

   A. Service

       Bergin appears to dispute that he was ever served with a summons and

complaint. He states, “Ms. Sutey appears to claim that she served Mr. Bergin with

a summons and amended complaint on April 2012 (which Mr. Bergin disputes).”

He does not devote further argument to that assertion.

       The trial court found that, on April 5, 2012, Bergin was personally served

“with the original summons and complaint in this action by process server Eric

Train[a]” at Bergin’s Ashworth address. It also found that Bergin’s assertion that it

was not he who accepted service on that date was not credible. We review a trial


                                             12
No. 79510-4-I/13


court’s findings of fact for substantial evidence. Sunnyside Valley Irrigation Dist.

v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). Substantial evidence is “a

quantum of evidence sufficient to persuade a rational fair-minded person the

premise is true.” Id. We cannot review credibility determinations on appeal. Morse

v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003).

         In a return of service form in the record, process server Traina stated under

penalty of perjury that, on April 5, 2012, he personally delivered an amended

complaint, an original summons, and an original complaint to Bergin at the

Ashworth address. The process server signed the return of service form. To the

extent that Bergin challenges the trial court’s finding that he was served with a

summons and complaint in April 2012, this form constitutes substantial evidence

to support that finding.

   B. Lack of Signature

         Bergin argues next that, because the summons filed in this case was not

signed, the summons served on him was not signed. Therefore, he asserts that

service of the summons on him was invalid. The summons that the Suteys

electronically filed in June 2013 was not signed.

         As to whether Bergin was served with a signed summons, the trial court

found,

         Bergin disputes that summons and complaints were signed by
         counsel, given that electronically filed copies to [sic] do not contain a
         handwritten signature. Former counsel for Sutey, in the Declaration
         of Brian Chase suggests otherwise. Further, attached copies filed
         as exhibits contain signatures, e.g.[,] exhibits A[ ]& B of sub 36. The
         Court finds that all inferences can be made to support a finding that



                                               13
No. 79510-4-I/14


       Bergin was provided signed copies of necessary summons and
       complaints.

Bergin contends that “the trial court’s ‘inference’ that he was served with signed

copies is error.” We construe this statement as a substantial evidence challenge.

       Bergin did not offer the summons served on him to prove it was unsigned.

Instead, he points to the unsigned documents in the court file to demonstrate the

defect in service. Chase had consistently filed unsigned documents in this matter

through the court’s electronic filing portal. But, in a declaration filed on January 4,

2019, Chase stated,

       It has been brought to my attention that several documents on file
       with the Court from my office do not show as signed in the Court
       docket. I am fully aware that all pleadings must be signed (hence
       the signature spot) under CR 11. As far as I know every document
       submitted was authenticated by me at the time and working copies
       would have also had a signature on all documents.

       In a return of service form in the record, a process server stated that, on

April 5, 2012, he personally delivered an amended complaint, an original

summons, and an original complaint to Bergin at the Ashworth address. And,

before the court granted the Suteys permission to file the third amended complaint,

the Suteys filed a January 27, 2014 declaration of mailing. Attached as exhibits to

that declaration were signed copies of the third amended complaint, second

amended complaint, and amended complaint. The declaration of mailing stated

that a copy of the Suteys’ motion for leave to amend and the attached exhibits

were sent to Bergin’s Ashworth address. The fact that each of the complaints

attached as exhibits to the declaration of mailing were signed strongly suggests

that the copies of the summons and complaints that were served on Bergin were



                                             14
No. 79510-4-I/15


signed, even though unsigned copies were electronically filed. Thus, the existence

of signed copies of the Suteys’ complaints, supported by Chase’s declaration,

constitutes sufficient evidence to persuade a rational, fair-minded person that

Bergin was served with a signed summons and complaint.

       Bergin fails to establish factually the lack of signature on the summons

served on him. A trial court is deemed to have acquired jurisdiction from the time

of commencement of an action by service of a summons.              RCW 4.28.020.

Therefore, Bergin fails to establish that service was ineffective as a matter of law

to establish personal jurisdiction over him.

   C. Summons Filed Was Not Summons Served

       Bergin argues next that the summons served on him failed to comply with

CR 4(b)(1)(i), CR 5(d)(1), and RCW 4.16.170 because it did not match the

summons filed in this case.       He does not argue that the summonses are

substantively different from one another. Rather, he contends that the summons

served on him failed to comply with CR 4(b)(1)(i) because the only summons that

was electronically filed contained two additional defendants added after he was

served. He asserts that CR 5(d)(1) required the summons served on him to be

electronically filed. He also argues that, under RCW 4.16.170, the Suteys had to

file a copy of the same summons served on him.

       Under CR 4(b)(1)(i), a summons for personal service must contain “the title

of the cause, specifying the name of the court in which the action is brought, the

name of the county designated by the plaintiff as the place of trial, and the names

of the parties to the action, plaintiff and defendant.” (Emphasis added.) The trial


                                               15
No. 79510-4-I/16


court found that, on April 5, 2012, Bergin was personally served with the original

summons and complaint at the Ashworth address. Bergin does not argue that the

summons served on him in April 2012 failed to include the names of the parties to

the action at that time. The copy of that summons in the record clearly did. But,

the record does not reflect that this original summons was ever filed.

      In December 2012, the Suteys added additional parties, Winningham and

Visse, as defendants to the action. In June 2013, the Suteys electronically filed a

new summons and complaint that included Winningham’s and Visse’s names in

the caption. Copies of the amended pleadings were sent to Bergin’s counsel at

the time. The record does not reflect that Bergin was personally served with a new

summons after Winningham and Visse were added. Bergin cites no authority to

support that failure to personally serve him with these amended pleadings renders

earlier, proper service of a summons invalid.

      Bergin nonetheless relies on Lindgren v. Lindgren, 58 Wn. App. 588, 794

P.2d 526 (1990). The claim on appeal there was that the trial court abused its

discretion in vacating a default judgment Demopolis8 had obtained against Kimzey

under CR 60(b). Lindgren, 58 Wn. App. at 589. The validity of a default judgment

requires that a proper summons was served upon the defaulting party. Id. at 596.

It is the summons alone that conveys to a defendant that failing to appear and

defend can result in the entry of a default judgment. Id. at 596-97. The record in

Lindgren contained a third party complaint directed to Kimzey, but no summons.

      8  Demopolis had filed a third party complaint alleging that Lindgren’s son
and Kimzey conspired to defraud him by forging Lindgren’s signature on a
quitclaim deed. Lindgren, 58 Wn. App. at 590.


                                           16
No. 79510-4-I/17


Id. at 597. Kimzey filed an affidavit in support of her motion to vacate the default

judgment, asserting that she had no notice that Demopolis intended to move for

default. Id. This court found that Kimzey’s affidavit, combined with the lack of

summons in the court file, supported the conclusion that Demopolis served an

invalid summons upon Kimzey. Id. at 597-98. It explained,

              The lack of summons in the file justifies an affirmance of the
       vacation of the default judgment. Without the benefit of the summons
       in the court file, we have no way to determine whether Kimzey was
       properly notified. Having only her affidavit which states that she had
       no notice that Demopolis intended to move for default, the only
       reasonable conclusion is that the summons was defective.

Id. at 597. As a result, this court held that the trial court properly vacated the default

judgment under CR 60(b)(5). Id. at 598.

       Unlike the affidavit given in Lindgren, Bergin does not argue that the

summons served on him was defective in notifying him of the risk of default. In

fact, apart from his signature argument rejected above, he does not allege that the

content of the summons served on him was defective at all. He points only to the

additional defendants listed in the caption in the electronically filed summons as

evidence that it was not the same one served. Bergin’s reliance on Lindgren is not

based on its holding, but on the statement made in the opinion that

              CR 5(d)(1) requires all pleadings that must be served upon
       parties to be filed. The summons is such a document. In addition,
       under RCW 4.16.170, a party must file a copy of the same summons
       which was served.

Lindgren, 58 Wn. App. at 597 (citing Nearing v. Golden State Foods, 114 Wn.2d

817, 792 P.2d 500 (1990) (Dore, J., dissenting)).




                                               17
No. 79510-4-I/18


       But, the majority in Nearing rejected the dissent’s argument. In Nearing,

the tolling of the statute of limitations under RCW 4.16.170 was at issue.9 114

Wn.2d at 820. Two summons were served, but only the second was filed. Id. at

818. The majority held that the earlier summons was sufficient to toll the statute

of limitations. Id. at 823. And, even though the first summons was never filed, the

filing of a summons and complaint within 90 days of service of the first summons

validly commenced the action. Id. at 822-23.

       CR 5(d)(1) requires that “all pleadings and other papers after the complaint

required to be served upon a party shall be filed with the court either before service

or promptly thereafter.” Sutey filed a summons. As in Nearing, it was not the same

summons served on Bergin. But, unlike Lindgren, Bergin does not allege nor

attempt to prove that either the summons served on him or the summons filed did

not give him notice of the risk that failing to appear and defend can result in the

entry of a default judgment, as required by the court rule. He suggests only that,

due to the difference in the captions, they were not one and the same and do not




       9  Bergin points out that the Suteys failed to file their action in the trial court
within 90 days of serving him, as required by RCW 4.16.170. As a result of this
failure, he alleges that the Suteys’ wage and breach of contract claims expired on
April 6, 2014 and April 6, 2017, respectively. However, the Suteys filed their third
amended complaint on June 26, 2013. They sent a copy of that complaint to
Goetz. At that point, Goetz had already signed a notice of appearance on behalf
of Bergin. The Suteys later sought leave to file their third amended complaint. The
trial court granted them leave, and they again filed the complaint on March 3, 2014.
Bergin was no longer represented by Goetz at that time, so the Suteys mailed him
a copy of that complaint. Thus, the Suteys filed their claims before the statutes of
limitations expired. Bergin does not address these facts in his RCW 4.16.170
argument. Accordingly, we reject his contention that the Suteys’ wage and breach
of contract claims have expired.


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comply with the court rules. We disagree and conclude that on this record, the

summons filed by the Suteys satisfied CR 5.

       The summons personally served on Bergin in April 2012 complied with the

provisions in CR 4 governing the form and content of a summons. Thus, the trial

court acquired personal jurisdiction over him at that time. The electronically filed

summons satisfies the court rules. Therefore, the trial court correctly concluded

that the default judgment entered against Bergin is not void. Accordingly, the trial

court did not abuse its discretion in denying the CR 60(b)(5) motion to vacate.

 II.   Whether the Suteys Committed Fraud on the Court

       Bergin argues second that the Suteys’ misrepresentations to the trial court

regarding service of the summons and complaint constituted fraud on the court

under CR 60(b)(4).      Specifically, he contends that, contrary to the Suteys’

assumption that Bergin had appeared in the action, Goetz never appeared on

behalf of him. He points out that her second notice of appearance on June 28,

2013 did not include him. Further, he states, “The fact that she filed a notice of

withdrawal regarding Mr. Bergin in the underlying suit is irrelevant given the failure

to identify him in her [second] notice of appearance.” Bergin seems to indicate

that, because he never appeared in the action, the Suteys failed to comply with

CR 55(f) in serving him with the notice of motion for default.

       Under CR 60(b)(4), the trial court may vacate a judgment procured by fraud,

misrepresentation, or misconduct.       The rule is aimed at judgments unfairly

obtained, not factually incorrect judgments. Peoples State Bank v. Hickey, 55 Wn.

App. 367, 372, 777 P.2d 1056 (1989). As a result, “the fraudulent conduct or


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misrepresentation must cause the entry of the judgment such that the losing party

was prevented from fully and fairly presenting its case or defense.” Lindgren, 58

Wn. App. at 596. The losing party must bring a CR 60(b)(4) motion to vacate within

a reasonable amount of time.       And, that party must establish the fraud or

misrepresentation by clear and convincing evidence. Peoples State Bank, 55 Wn.

App. at 372.

       In finding of fact 3, the trial court determined, “On April 2, 2012, attorney

Theresa A. Goetz appeared on behalf of corporate defendant T26 and individual

defendants Be[r]gin, Sechter, Wilaby, and Winningham. The notice of appearance

was not filed, since the case had not been filed at that point.” However, Bergin

asserts that Goetz never appeared on his behalf, because the notice of

appearance that she filed in June 2013 did not include him. We construe his

argument as a substantial evidence challenge.

       On March 28, 2012, Goetz signed a notice of appearance on behalf of the

defendants in this case, including Bergin. The first page of the notice shows that

Chase, one of the Suteys’ attorneys below, received the notice on April 2, 2012.

The Suteys did not file their complaint until June 26, 2013. Two days later, Goetz

filed a notice of appearance on behalf of defendants T26, Sechter, Wilaby,

Winningham, and Visse, but not Bergin. About a month later, she filed a notice of

intent to withdraw as counsel for Bergin effective August, 9, 2013. This evidence

is sufficient to persuade a rational, fair-minded person that Goetz appeared on

behalf of Bergin in April 2012.




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        Substantial evidence supports that Goetz appeared on behalf of him.

Because Bergin had already appeared, CR 55(a)(3)—not CR 55(f)—applied to

service of the Suteys’ notice of motion for default. Bergin does not argue that the

Suteys failed to comply with CR 55(a)(3) in serving the notice, or misrepresented

their failure to comply to the trial court.

        Bergin has failed to establish fraud or misrepresentation by clear and

convincing evidence. Accordingly, the trial court did not abuse its discretion in

denying his CR 60(b)(4) motion to vacate.

 III.   Attorney Fees Below

        Bergin argues third that the trial court abused its discretion in awarding the

Suteys attorney fees for defending the motion to vacate. Specifically, he argues

that Jonathan Baner, the attorney who represented the Suteys in defending the

motion, speculated as to how many hours he spent on the matter. He states, “It

appears that Mr. Baner does have a timekeeping program by which he can track

his hours but purposely chose not to here. Thus, there is no factual basis for the

hours Mr. Baner claims.”

        Bergin takes issue with the reasonableness of the attorney fee award. A

trial judge is given broad discretion in determining the reasonableness of an award.

Ethridge v. Hwang, 105 Wn. App. 447, 460, 20 P.3d 958 (2001). To reverse such

an award, Bergin must show that the trial court manifestly abused its discretion.

Id.




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       Bergin points to the following statements in Baner’s declaration regarding

the hours he spent defending the motion to vacate:

   7. 21 hours at $350/hour is $7,350.[00]. This is less than counsel for
      Mr. Bergin sought as of the first hearing that was struck. If a 1.25
      multiplier is applied the amount is increased to $9,187.50.

   8. The above times are conservative estimates and likely underreport
      the amount of time expended. Estimates are based on my personal
      memory of the time spent. I do not generally use a timer on my
      contingency fee collection cases unless there is some compelling
      reason to do so such as the expectation that attorney fees will be
      granted for a substantially complex case (e.g.[,] a collection on a
      breach of contract case that might take 100 hour[s] over the course
      of several months) where memory would be too unreliable.

The trial court declined to apply a multiplier based on Baner’s 25 percent

contingency fee, but awarded the Suteys $7,350.00 in attorney fees.

       Bergin does not challenge Baner’s hourly rate. Rather, he takes issue with

Baner’s failure to use a timer to determine the amount of hours he spent defending

the motion.    While the better practice would have been to prepare detailed

summaries of the work performed based on contemporaneous time records, there

is no per se rule that permitting an attorney to rely upon reconstructed records is

an abuse of discretion. Miller v. Kenny, 180 Wn. App. 772, 822, 325 P.3d 278

(2014). And, contrary to Bergin’s assertion, Baner’s declaration offers a factual

basis for the court’s decision. As a result, the trial court did not abuse its discretion

in awarding the Suteys $7,350.00 in attorney fees.




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No. 79510-4-I/23


IV.   Attorney Fees on Appeal

      The Suteys request attorney fees on appeal under RCW 49.52.070. RCW

49.52.070 authorizes an award of attorney fees to a party who successfully

recovers wages owed under RCW 49.52.050(1) or (2).

      In granting the Suteys’ motion for default judgment, the trial court

concluded, “Anthony Bergin and/or T26, Inc., violated RCW 49.52.050(2) when

they willfully and with intent to deprive Ms. Sutey of her wages refused to pay Ms.

Sutey all wages she earned pursuant to said employment contract.” It therefore

awarded her unpaid wages under RCW 49.52.070. Accordingly, we award the

Suteys attorney fees under RCW 49.52.070, subject to their compliance with RAP

18.1(d).

      We affirm.




WE CONCUR:




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