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                                                                                                      COURT CSE APPEALS
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                                                                                                     2flI5 JUL —7      All 8: 42

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    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                 DIVISION II

 EDWARD H. PIETZ, dba EP PROPERTIES,                                           No. 41866 -5 -II


                                         Respondent,


          V.

                                                                       UNPUBLISHED OPINION
 ROBERT T. FIREBAUGH,


                                               ant.




         MAxA, J. —        Robert Firebaugh appeals the trial court' s denial of his motion to vacate a


confession ofjudgment that he executed in a civil lawsuit arising from his alleged embezzlement

of funds from Edward Pietz. The confession of judgment recited that it would " not be

admissible      for any   other purpose or as an admission of    liability   in any   other case."     Clerk' s


Papers ( CP) at 20. Firebaugh argues that despite this language, the confession of judgment

would be admissible in a subsequent criminal case. Therefore, he `argues that the confession of

judgment was based on a mutual mistake, and that vacation of the confession of judgment is

justified under CR 60( b).


         We hold that the evidence supports findings that ( 1) Firebaugh did not make the type of

mistake   that   would support vacation of a confession of judgment under              CR 60( b)( 1), (     2) Pietz


did not make any mistake, and ( 3) Firebaugh had no basis for vacating the confession of

judgment       under   CR 60( b)( 11).   Accordingly, we affirm the trial court' s denial of Firebaugh' s

motion    to   vacate   the. confession of judgment.
41866 -5 -II



                                                          FACTS


         Pietz sued Firebaugh in October 2009 asserting embezzlement and other claims. Pietz

alleged that while Firebaugh was acting as his accountant, Firebaugh misappropriated money

from Pietz in various ways. Firebaugh denied the allegations and asserted counterclaims against

Pietz.


         In December 2010, Firebaugh executed a confession of judgment in order to resolve the


claims against him. The confession of judgment stated that Firebaugh confessed judgment and


consented to the entry -of a judgment in favor of Pietz in the amount of $1, 552,492. 71 in order to

resolve all claims against him in Pietz' s case. In the confession ofjudgment, Firebaugh

stipulated   that Pietz " could   and would prove         the   allegations   in the   complaint ...   by a

preponderance of     the   evidence   in   a civil   trial."   CP at 18.


         The confession ofjudgment recited that it would not be admissible in any other case:

         This document is for the purposes of settling and resolving all the civil claims
         herein and shall not be admissible for any other purpose or as an admission of
         liability in any other case, pursuant to the Rules of Evidence ( ER) in any other
         proceeding ... Firebaugh expressly reserves the right to assert any and all
         defenses, he may have against Edward Pietz and EP Properties in and only in the
         event that any criminal prosecution is commenced against him arising out of the
         facts of this case.


CP at 20. At the hearing to approve the confession of judgment, counsel for Pietz agreed that the

parties stipulated that any admissions in the confession were made only as to the civil case.

         The trial court subsequently engaged in a discussion with Firebaugh, during which

Firebaugh confirmed that he had discussed the terms of the confession of judgment with his


attorney, that he understood that he would be bound by its terms, and that he agreed to be bound

by those terms. The trial court then signed the confession of judgment.

                                                                2
41866 -5 - II




         After.retaining new counsel, Firebaugh made a motion to vacate the confession of

judgment under CR 60( b) on the grounds of mutual mistake. Firebaugh submitted a declaration


stating that ( 1) he did not understand the contents of the confession of judgment or the legal

effect of   how it   would   apply to   criminal charges, (   2) he did not know that the confession of


judgment would be admissible in a criminal case if charges were filed, and ( 3) he had been


informed that the confession of judgment would be inadmissible in any further proceedings. The

court denied the motion to vacate.


         Firebaugh appeals.


                                                   ANALYSIS


         Firebaugh argues that the trial court erred in denying his motion to vacate his confession

of judgment. He claims that both parties mistakenly believed, as stated in the confession of

judgment, that the confession would not be admissible in a criminal case if charges subsequently

were filed against Firebaugh. He argues that based on this mistake, the trial court should have


vacated the confession of judgment under CR 60( b)( 1) and ( 11). 1 We disagree because the

evidence supports the trial court' s ruling, in the exercise of its discretion, that Firebaugh was not

entitled to relief under CR 60( b).


A.       VACATION OF JUDGMENT UNDER CR 60( b)


         CR 60( b) provides in part that a court may relieve a party from a final judgment, order, or

proceeding for one of 11 stated reasons. One reason under CR 60( b)( 1) is a mistake in obtaining



1 Firebaugh also states in his brief that the trial court should have vacated the confession of
judgment     under   CR 60( b)( 5), which allows for the vacation of void judgments. However, he
makes no argument that the confession of judgment was void. Therefore we do not address this
issue. See West v. Thurston County, 168 Wn. App. 162, 187; 275 P. 3d 1200 ( 2012).
                                                         3
41866 -5 -II



a   judgment   or order.   Another   reason under     CR 60( b)( 11) is "[   a] ny other reason justifying relief

from the operation of the judgment."


         Generally, we review a trial court' s ruling under CR 60( b) for an abuse of discretion.

Tamosaitis     v.   Bechtel Nat., Inc., 182 Wn.     App.   241, 254, 327 P. 3d 1309 ( 2014). Therefore, the


trial court' s decision will not be overturned on appeal absent a manifest abuse of discretion. In


re   Marriage of Newlon, 167 Wn.           App.   195, 199, 272 P. 3d 903 ( 2012). We will find an abuse of


discretion only if the trial court' s exercise of discretion was based on untenable grounds or made

for untenable reasons. Id.


B.       MUTUAL MISTAKE


         Firebaugh argues that the trial court should have vacated his confession of judgment


because it was based on the mistaken belief of both parties that the confession ofjudgment

would not be admissible in a subsequent criminal case. We reject this argument because the


evidence supports a ruling that neither Firebaugh nor Pietz made a mistake regarding the

confession of judgment that supported relief under CR 60( b)( 1).


         1.     Rules for Consent Judgments


         Many cases regarding a claim of mistake under CR 60( b)( 1) involve default judgments.

In that context, a party requesting relief must show that the judgment was entered as the result of

a unilateral mistake.      See Ha   v.   Signal Elec., Inc.,   182 Wn. App. 436, 453, 332 P. 3d 991 ( 2014).

         However, this case involves a confession of judgment, which is authorized by statute and

is designed to resolve disputes among willing parties. See RCW 4. 60. 050. A confession of

judgment requires the consent of both parties to the judgment. Pederson v. Potter, 103 Wn. App.

62, 68, 11 P. 3d 833 ( 2000).       As a result, such a judgment by consent can be vacated under CR

                                                           E
41866 -5 -II




60( b)( 1) based on a mistake only if there has been a mutual mistake. Haller v. Wallis, 89 Wn.2d

539, 544- 45, 573 P. 2d 1302 ( 1978).       In addition, our Supreme Court in Haller stated that two


types   of "mistakes"   do   not support   vacating   a consent   judgment: ( 1) an error or misapprehension


of the parties or their counsel, and ( 2) erroneous advice of counsel pursuant to which.the


judgment was entered. Id. at 544.


         2.    No CR 60( b)( 1) Mistake by Firebaugh

         The threshold issue under CR 60( b)( 1) is whether Firebaugh made the type of mistake

that would support vacation of a judgment. Firebaugh provided no evidence of such a mistake.


         Firebaugh claims that he did not understand the legal effect of the confession of judgment


as it applied to possible criminal charges and that he was misinformed that the confession of


judgment would not be admissible in a subsequent criminal case. However, the mistake


Firebaugh alleges is the type of mistake the court in Haller expressly stated does not support

relief under   CR 60( b)( 1).   89 Wn.2d at 544. The evidence supports a finding by the trial court in

an exercise of its discretion that Firebaugh' s motion to vacate was based only on a

misapprehension of the confession of judgment or on erroneous advice of counsel, neither of


which supports relief under CR 60( b)( 1).


         We hold that based on the evidence in the record, the trial court did not abuse its


discretion in denying Firebaugh' s motion to vacate the confession ofjudgment under CR

60( b)( 1) based on his alleged misunderstanding of the effect the confession of judgment had on

any   subsequent criminal proceedings.
41866 -5 -II




         3.     No Mistake by Pietz

         As    stated above,   in   order   to   vacate a   judgment based   on consent under   CR 60( b)( 1),   a




party must show a mutual mistake. Haller, 89 Wn.2d at 544. Firebaugh presented no evidence

that Pietz was mistaken regarding the effect the confession of a judgment had on subsequent

criminal proceedings.



         Again, Firebaugh points to the statement in the confession of judgment that it would not


be admissible in any other case. However, Firebaugh submitted no evidence regarding how Pietz

interpreted this language. Pietz may have understood that this language provided that the

confession of judgment would not be admissible only in other cases involving the parties, or may

have understood that the confession of judgment would be admissible in a subsequent criminal


case despite this language. Conversely, Pietz may have believed that Firebaugh' s agreement that

Pietz could prove the allegations in the complaint by a preponderance of the evidence in a civil

trial would not be admissible in a subsequent criminal trial where guilt must be proven beyond a

reasonable doubt.


         Firebaugh did not supply the trial court with any evidence that Pietz made a mistake with

regard to the confession ofjudgment. Accordingly, we hold that Firebaugh is not entitled to

relief from the confession of judgment under CR 60( b)( 1).


C.        ANY OTHER REASON JUSTIFYING RELIEF


          Firebaugh argues that the confession of judgment should be vacated under CR 60( b)( 11)


because he did not understand the legal effect of the confession of judgment and its admissibility

in   a criminal case.   We disagree.
41866 -5 -II



        CR 60( b)( 11) is a catch- all provision authorizing judgments to be vacated for any other

reason justifying relief. The use of this provision is confined to situations involving

extraordinary circumstances not covered by any other section of the rule. In re Marriage of

Furrow, 115 Wn. App. 661, 673, 63 P. 3d 821 ( 2003).

        Firebaugh does not provide any argument regarding the applicability of CR 60( b)( 11)

under these facts. Firebaugh also does not cite to any authority for the proposition that purported

ignorance of the legal consequences of a confession of judgment constitutes extraordinary

circumstances. Accordingly, we hold that Firebaugh failed to establish extraordinary

circumstances warranting relief under CR 60( b)( 11).

        We affirm the trial court' s denial of Firebaugh' s motion to vacate the confession of


judgment.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                                 mokIL -)-
                                                                MAXA, J. '        0
                                                                                          I -




We concur:




 W0 . SWIcK, P. J.




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