                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        November 21, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 BOSS CONSTRUCTION, INC., a Washington                               No. 49273-3-II
 corporation,

                                Respondent,

        v.

 HAWK’S SUPERIOR             ROCK,      INC.,    a            UNPUBLISHED OPINION
 Washington corporation,

                                Appellant.


       LEE, J. — Hawk’s Superior Rock, Inc. (Hawk’s Superior) appeals the superior court’s

denial of Hawk’s Superior’s CR 60(b)(1) motion for relief from an order granting summary

judgment in favor of Boss Construction Inc. (Boss) in an underlying breach of contract claim.

Hawk’s Superior argues that (1) the superior court abused its discretion by denying Hawk’s

Superior’s CR 60(b)(1) motion for relief without addressing the four factor test articulated in White

v. Holm, 73 Wn.2d 348, 438 P.2d 581 (1968); (2) the superior court erred in finding that Hawk’s

Superior’s counsel’s failure to update his address with the court did not constitute mistake,

inadvertence, or excusable neglect under CR 60(b)(1); and (3) the superior court abused its

discretion in denying Hawk’s Superior’s motion to reconsider again without addressing the White

test. We affirm.
No. 49273-3-II


                                              FACTS

A.     BREACH OF CONTRACT CLAIM

       On August 11, 2014, Boss filed a complaint for damages against Hawk’s Superior. In its

complaint, Boss alleged that Hawk’s Superior had materially breached express and implied

warranties in the contract concerning the quality of its rock and gravel—the subject matter of the

contract. On September 29, Hawk’s Superior filed an answer denying these allegations and

asserting several affirmative defenses, including failure to mitigate damages.

       Neither party took further action in the matter for the next year and a half, until Boss filed

a motion for summary judgment on February 8, 2016. In support of its motion, Boss filed a

declaration by its vice president stating that Hawk’s Superior offered to sell Boss the rock and

gravel it needed to complete a Washington State Department of Transportation (WSDOT)

construction project. In making such offer, Hawk’s Superior warranted that its rock and gravel

would meet the WSDOT’s mandated quality specifications. But the rock and gravel Hawk’s

Superior provided failed to meet WSDOT’s specifications, which forced Boss to purchase the

required rock and gravel from a different supplier at a substantially higher cost.

       Between the time Boss filed its complaint and its motion for summary judgment, Hawk’s

Superior’s counsel, C. Craig Holley, moved office locations within his building. Holley notified

the state bar association, as well as his billing and insurance company of his change in office

location. He did not, however, notify Boss’s counsel or the court clerk of his new address.

       Shortly after Holley moved his office location, he underwent surgery. At the time, Hawk’s

Superior was Holley’s only pending case. However, because no action had been taken on the case




                                                 2
No. 49273-3-II


for a year and a half, Holley admitted that “it just wasn’t in [his] mind” to update his address with

the court and opposing counsel. Verbatim Report of Proceedings (VRP) (May 31, 2016) at 3.

       Holley never received Boss’s motion for summary judgment. As a result, Holley never

filed a response to Boss’s motion for summary judgment on Hawk’s Superior’s behalf, and Holley

did not appear at the motion hearing scheduled for March 14, 2016.

       At the summary judgment motion hearing, the superior court considered the summons and

complaint, the affidavit/declaration of service on Hawk’s Superior, the motion for default against

Hawk’s Superior, the notice of appearance of C. Craig Holley, Hawk’s Superior’s answer to the

complaint for damages, the notice of hearing on Boss’s motion for summary judgment, the

declaration of Chris Hart re motion for summary judgment, and Boss’s motion for summary

judgment. The superior court entered an order granting plaintiff’s motion for summary judgment

and awarded judgment against Hawk’s Superior in the principle sum of $241,708.33, judgment for

costs in the amount of $303.00, and a statutory attorney fee of $250.00.

B.     MOTION SEEKING RELIEF FROM JUDGMENT

       Holley learned of the superior court’s summary judgment order on April 18, after Hawk’s

Superior’s owners started receiving phone calls about a Grays Harbor County Superior Court

judgment against them. On April 29, Hawk’s Superior filed a motion seeking relief from judgment

under CR 60(b)(1). Holley filed a declaration in support of the motion, in which he stated that he

had updated his change of address with the Washington State Bar Association and applied for a

mail forwarding order with the post office. Holley also stated that he had never received any

document by mail from Boss’s counsel and that genuine issues of material fact remain in the

underlying contract claim.



                                                 3
No. 49273-3-II


          In its motion for relief, Hawk’s Superior argued that the circumstances surrounding

Holley’s mail and the fact he never received actual notice of Boss’s summary judgment motion

constituted “procedural irregularity.” Clerk’s Papers (CP) at 36. Boss filed a response on May

26, asserting that it had mailed the notice of hearing and motion for summary judgment to Holley

on February 4. The notice and motion for summary judgment were sent to Holley’s address on

file with the court on February 4.

          At the hearing on the motion for relief, Holley informed the superior court that he did not

notify opposing counsel or the county court clerk of his change in address. As to which provision

of CR 60(b) relief was being sought, Holley stated, “Well particularly under mistake or

inadvertence, Your Honor.” VRP (May 31, 2016) at 4. When asked again, Holley replied, “Under

inadvertence or an irregularity.” VRP at (May 31, 2016) at 4. Holley conceded that failing to

notify opposing counsel or the court was his mistake, but it was due to the irregularity of his

medical treatment coupled with the case remaining dormant for approximately 15 months.

          The superior court found that Holley had failed to comply with the court rules when he

failed to notify opposing counsel of his change in address. 1 The superior court also found such

failure was not inadvertent. The superior court further found that Hawk’s Superior’s motion for

relief did “not properly fall within any of the provisions of CR 60(b).” VRP (May 31, 2016) at 7.

Therefore, the superior court concluded that it could not grant the motion because Hawk’s Superior

did not “have a legal basis for it.” VRP (May 31, 2016) at 7.




1
    The superior court did not identify the court rule(s) to which it was referring.


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No. 49273-3-II


C.     MOTION FOR RECONSIDERATION

       On June 9, Hawk’s Superior filed a motion for reconsideration under CR 59(a)(7) and

(a)(9), asserting that the superior court’s ruling denying its motion to vacate the summary judgment

order was legally erroneous and a denial of substantial justice. In support, Hawk’s Superior

provided the following documents: supplemental declaration of Holley, supplemental declaration

of the tenant who moved into Holley’s prior office, declaration of Hawk’s Superior’s owners, and

an attached exhibit e-mail from the WSDOT regarding the gravel tests. This evidence purportedly

showed that Hawk’s Superior’s rock and gravel complied with WSDOT specifications, that

Hawk’s Superior had never made any warranties to Boss, and that the tenant in Holley’s former

office could not recall ever receiving any first-class mail from Boss’s counsel. In its motion for

reconsideration, Hawk’s Superior argued that it had shown a “strong, if not conclusive, defense on

the merits,” and further asserted that Holley’s non-appearance at the summary judgment motion

hearing “was occasioned by mistake, inadvertence, surprise, or excusable neglect.” CP at 66 n.1,

67.

       On June 21, the superior court sent a letter directing Boss to respond to Hawk’s Superior’s

assertion that substantial evidence supported a defense to Boss’s breach of contract claim. In this

letter, the superior court advised that when Boss filed its motion for summary judgment, it had

attached a declaration from its vice president, which referenced an “‘Exhibit A.’” CP at 79.

However, this exhibit was not actually attached to the supporting declaration. The superior court

directed Boss to attach the exhibit.

       Boss filed the attached exhibit on July 8. The exhibit contained the 2010 price quote from

Hawk’s Superior to Boss, which contained the statement, “All Rock Meets DOT and Corp. of



                                                 5
No. 49273-3-II


Engineer Specifications for Hardness & Wear.” CP at 84. Boss also filed an e-mail from WSDOT

from December 15, 2010, which notified Boss that Hawk’s Superior failed to meet its special

gravel borrow specifications.

       On July 19, the superior court denied Hawk’s Superior’s motion for reconsideration.

Hawk’s Superior appeals both the order denying its CR 60(b)(1) motion for relief and the order

denying its motion for reconsideration.

                                            ANALYSIS

A.     MOTION FOR RELIEF FROM JUDGMENT

       Hawk’s Superior argues that the superior court applied an incorrect legal standard in

evaluating its motion for relief from judgment because the superior court did not consider the four

factor test articulated by the Washington Supreme Court in White v. Holm, 73 Wn.2d 348.

Specifically, Hawk’s Superior contends that the superior court’s failure to address the White test

on the record in itself constituted abuse of discretion. Additionally, Hawk’s Superior argues that

the superior court abused its discretion in finding that Hawk’s Superior’s counsel’s failure to

update his mailing address with the court was not inadvertence or excusable neglect under CR

60(b)(1). We disagree.

       1. Standard of Review

       We review a superior court’s ruling on a motion to vacate a judgment under CR 60(b) for

abuse of discretion. In re Parenting & Support of C.T., 193 Wn. App. 427, 434, 378 P.3d 183

(2016); Showalter v. Wild Oats, 124 Wn. App. 506, 510, 101 P.3d 867 (2004). Review of a CR

60(b) ruling is limited to the propriety of the denial of relief from judgment, not of the underlying

judgment the party sought to vacate. State v. Santos, 104 Wn.2d 142, 145, 702 P.2d 1179 (1985).



                                                 6
No. 49273-3-II


       A court abuses its discretion if its decision to deny a 60(b) motion is manifestly

unreasonable or based on untenable grounds. Showalter, 124 Wn. App. at 510. Therefore, we will

only overturn the superior court’s decision if the decision “‘rests on facts unsupported in the record

or was reached by applying the wrong legal standard,’” or if the superior court applied the correct

legal standard, but “adopt[ed] a view ‘that no reasonable person would take.’” Mitchell v. Wash.

State Inst. of Pub. Policy, 153 Wn. App. 803, 822, 225 P.3d 280 (2009) (quoting State v. Rohrich,

149 Wn.2d 647, 654, 71 P.3d 638 (2003)), review denied, 169 Wn.2d 1012 (2010).

       2.        Addressing the White factors on the record

       Hawk’s Superior argues that because it sought relief from judgment under CR 60(b)(1),2

the superior court was required to make findings of fact on the record on each of the four factors

articulated in White. Hawk’s Superior’s argument fails because no case requires the court to make

specific findings of fact on the record regarding each factor. White, 73 Wn.2d at 352-53.

       Hawk’s Superior relies on several cases involving denial of motions to vacate default

orders as support for the proposition that the superior court’s failure to address each White factor

on the record is itself an abuse of discretion. But Hawk’s Superior mischaracterizes the appellate

court rulings.

       For example, in Gutz v. Johnson, 128 Wn. App. 901, 911, 117 P.3d 390 (2005), aff’d sub

nom., Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 (2007), the court held that the trial court

abused its discretion in not reviewing whether the moving party satisfied the White test. The




2
  Hawk’s Superior did not raise White in its original motion for relief. Rather, Hawk’s Superior
first raised the White test in its motion for reconsideration.



                                                  7
No. 49273-3-II


court’s holding was not based on the fact that the trial court had failed to enter specific findings of

fact on each factor, but because the trial court only considered procedural arguments related to

notice of default judgments under CR 55 after the parties had extensively briefed the four elements

they needed to prove in a CR 60(b) hearing. Id. at 909.

       Also, the court in Norton v. Brown, 99 Wn. App. 118, 992 P.2d 1019, 3 P.3d 207 (1999),

did not hold that consideration of the White factors must be “on the record,” as Hawk’s Superior

contends. Br. Appellant at 11. Rather, Norton held that the trial court abused its discretion in

refusing to vacate a default judgment where the defendant presented a prima facie defense and

showed that his failure to appear was due to mistake, inadvertence or excusable neglect. Norton,

99 Wn. App. at 124.

       Hawk’s Superior fails to provide any legal authority aside from Norton discussed above to

support its argument that a superior court is required to make specific findings on the record on

each White factor. We decline to impose such a requirement. Thus, we hold that the superior court

did not err by not making specific findings on each White factor on the record.

       3.      Applying the White Test3

       Under CR 60(b)(1), a superior court may relieve a party from a final judgment, order, or

proceeding for “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a

judgment or order.” The law favors resolution of cases on their merit. Stanley v. Cole, 157 Wn.

App. 873, 879, 239 P.3d 611 (2010). Because a default order deprives the parties of a trial on the

merits, a proceeding to set aside a default judgment is equitable in character and the relief afforded



3
 As to the applicability of the White test, both parties assume the White test applies. For the
purposes of this appeal, we will assume it applies as well.


                                                  8
No. 49273-3-II


“is to be administered in accordance with equitable principles and terms.” White, 73 Wn.2d at

351. With this principle in mind, the Washington Supreme Court held that a four part test shall

guide trial courts when evaluating a motion to set aside a default judgment under CR 60(b)(1). Id.

at 352.

          The White test requires that the moving party show:

          (1) That there is substantial evidence extant to support, at least prima facie, a
          defense to the claim asserted by the opposing party; (2) that the moving party’s
          failure to timely appear in the action, and answer the opponent’s claim, was
          occasioned by mistake, inadvertence, surprise or excusable neglect; (3) that the
          moving party acted with due diligence after notice of entry of the default judgment;
          and (4) that no substantial hardship will result to the opposing party.

Id. Though no single factor in this test is dispositive, the first two elements are considered to be

the primary factors and are given greater weight. Id. The test balances the merits of the underlying

claim resolved by default judgment with the party’s reasons for failing “to timely appear in the

action before the default.” Id. at 353. If the movant demonstrates a “strong or virtually conclusive

defense,” then the court will spend minimal time considering the circumstances that deprived the

parties from resolving the case on its merit. Id. at 352. But, if the movant only presents a prima

facie defense, then the court will more heavily weigh the movant’s failure to appear and defend

the action. Id. at 352-53.

                 a. Evidence of defense

          As the moving party, Hawk’s Superior carried the burden of demonstrating to the trial court

that it satisfied the White test. Id. at 352 (holding that the primary and secondary factors of the

test “must be shown by the moving party.”). Thus, Hawk’s Superior must show that it had a

“strong or virtually conclusive defense” or that it can at least establish a prima facie defense. Id.




                                                   9
No. 49273-3-II


       Here, Hawk’s Superior failed to provide evidence of a strong or virtually conclusive

defense to the breach of contract claim. In its answer to Boss’s complaint, Hawk’s Superior denied

the accusations and asserted several affirmative defenses. And in its motion for relief, the only

evidence Hawk’s Superior provided addressing the underlying contract claim is found in a few

sentences of Holley’s supporting affidavit. There, Holley simply stated that Hawk’s Superior had

made no warranties or representations and that WSDOT had approved a substitute material from

Hawk’s Superior that Boss could use on the project. At best, this evidence would support a prima

facie defense to Boss’s breach of contract claim, not a strong or virtually conclusive defense.

Because only a prima facie defense can be shown, Hawk’s Superior’s failure to appear and defend

the summary judgment motion is weighed more heavily in balancing the White factors. White, 73

Wn.2d at 352-53.

               b. No excusable neglect

       Hawk's Superior argues that Holley’s failure to respond to Boss’s summary judgment

motion was excusable neglect. 4 But where a party’s failure to respond to properly served court



4
  Hawk’s Superior did not argue “excusable neglect” in its motion for relief or at the motion
hearing. Rather, in its motion, Hawk’s Superior argued that the order granting summary judgment
was obtained through “procedural irregularity.” CP at 37. At the motion hearing, counsel
specifically stated that its argument fell under the subsections of CR 60 (b)(1) of “mistake or
inadvertence.” VRP (May 31, 2016) at 4. Hawk’s Superior did, however, raise excusable neglect
in its motion for reconsideration. Hawk’s Superior argues that because it specifically sought relief
under CR 60(b)(1) in its motion for relief, White compels the superior court to make specific
findings of fact on excusable neglect, even if the parties did not argue that ground specifically.

        In general, appellate courts will not consider arguments raised for the first time on appeal.
RAP 2.5(a); Unifund, CCR, LLC v. Elyse, 195 Wn. App. 110, 117-18, 382 P.3d 1090 (2016).
However, in bringing a motion for reconsideration under CR 59, a party may preserve the issue
for appeal if it is closely related to a previously asserted position and it does not depend on new
facts. River House Dev. Inc. v. Integrus Architecture, PS, 167 Wn. App. 221, 231, 272 P.3d 289


                                                 10
No. 49273-3-II


documents is due to a breakdown of internal office procedures, such failure does not constitute

excusable neglect under CR 60(b)(1). Ha v. Signal Elec., Inc., 182 Wn. App. 436, 450, 332 P.3d

991 (2014), review denied, 182 Wn.2d 1006 (2015); TMT Bear Creek Shopping Ctr., Inc. v.

PETCO Animal Supplies, Inc., 140 Wn. App. 191, 213, 165 P.3d 1271 (2007); Prest v. Am.

Bankers Life Assur. Co., 79 Wn. App. 93, 100, 900 P.2d 595 (1995), review denied, 129 Wn.2d

1007 (1996). In TMT, Petco failed to appear or respond to TMT’s breach of contract summons

and complaint because the legal assistant responsible for entering the deadline into the calendaring

system forgot to do so before leaving on an extended vacation. TMT, 140 Wn. App. at 197-98.

The court rejected Petco’s argument that this constituted excusable neglect under CR 60(b)(1). Id.

at 213. Similarly, in Prest, the court held that the general counsel’s failure to respond to a

summons and complaint because the documents had been mislaid in the office while the general

counsel was out of town was not excusable neglect. Prest, 79 Wn. App. at 100.

       Hawk’s Superior also argues that Holley’s foresight in updating his address with the state

bar association and postal service demonstrate excusable neglect in failing to notify the superior

court of his address change. But Holley’s efforts actually support the opposite conclusion. Holley

made the effort to ensure certain entities were aware of his change in address. Yet, he failed to

exercise the same care in the one case he had pending. Though no action had been taken in the

case for a year and a half, Holley knew the case was still pending and his failure to update his

address with the court clerk or opposing counsel represents inexcusable neglect. As in TMT and




(2012). Because Boss addresses Hawk’s Superior’s excusable neglect arguments in its responsive
brief, we address the issue of excusable neglect.



                                                11
No. 49273-3-II


Prest, such breakdown was due to his own internal case management. The superior court did not

abuse its discretion in finding no excusable neglect under CR 60(b)(1).

               c. Mistake

        Hawk’s Superior next argues that the trial court erred in ruling that Holley’s failure to

receive actual notice of Boss’s summary judgment motion was not a mistake justifying relief under

CR 60(b)(1). We find this argument unpersuasive.

        Courts have addressed mistake under CR 60(b)(1) in the context of insurance coverage

cases. Norton, 99 Wn. App. at 120; Akhavuz v. Moody, 178 Wn. App. 526, 535, 315 P.3d 572

(2013). In Norton, the defendant in an auto accident claim notified his insurance company that he

was involved in a motor vehicle accident. Norton, 99 Wn. App. at 120. His insurance company

began settlement negotiations with plaintiff’s counsel regarding plaintiff’s claim for personal

injuries resulting from the accident. Id. The parties were unable to reach an agreement and

plaintiff’s counsel served the defendant with a summons and complaint. Id. The defendant failed

to forward the documents to his insurance adjuster because he thought his insurer was already

handling the claim. Id. The court held that this misunderstanding between the defendant and his

insurer constituted a mistake justifying relief under CR 60(b)(1) because it stemmed from a

genuine misunderstanding as to who was responsible for answering the summons and complaint.

Id. at 124.

        Comparatively, in Akhavuz, the court rejected the defendant’s claim that its insurer’s failure

to answer plaintiff’s complaint was a mistake under CR 60(b)(1). Akhavuz, 178 Wn. App. at 535-

36. There, the defendant received plaintiff’s summons and complaint and forwarded it to his

insurance adjuster. Id. at 530. The insurance adjuster never responded because he assumed the



                                                 12
No. 49273-3-II


parties were in the process of settlement negotiations. Id. at 536. The court held that this failure

was not a mistake under CR 60(b)(1) because there was no misunderstanding between the

defendant and his insurance company as to who was responsible for defending the plaintiff’s

claims. Id. at 535-36.

       Thus, the kind of “mistake” justifying relief under CR 60(b)(1) occurs when there is a

genuine misunderstanding as to who is responsible for defending a case. Id. at 537; Norton, 99

Wn. App. at 124. This aligns with the ordinary meaning of “mistake,” which is “to take in a wrong

sense” or “to be wrong in the estimation or understanding of.” WEBSTER’S THIRD NEW INT’L

DICTIONARY 1446 (2002).5

       As in Akhavuz, Holley’s failure to notify opposing counsel or the court of his change in

address did not arise from a misunderstanding by Holley. Therefore, it did not constitute a mistake

under CR 60(b)(1).

               d. Inadvertence

       Hawk’s Superior argues that Holley’s actions constituted “inadvertence.” Reply Br. of

Appellant at 4. Because CR 60(b)(1) does not define “inadvertence,” we give the term its “plain

and ordinary meaning ascertained from a standard dictionary.” In re Marriage of Worthley, 198

Wn. App. 419, 426, 393 P.3d 859 (2017) (quoting State v. Watson, 146 Wn.2d 947, 954, 51 P.3d

66 (2002)).




5
 CR 60(b)(1) does not define “mistake.” If a court rule does not define a term, we determine the
plain and ordinary meaning of the term from a standard dictionary. State v. Mankin, 158 Wn. App.
111, 122, 241 P.3d 421 (2010), review denied, 171 Wn.2d 1003 (2011).


                                                13
No. 49273-3-II


       The ordinary meaning of “inadvertence” is “lack of care or attentiveness.” WEBSTER’S,

supra, at 1139 (2002). Here, Holley’s failure to update his address was not inadvertent. Holley

updated his address with the bar association and post office. Thus, Holley was aware of the need

to update his address. As a result, the superior court did not abuse its discretion in finding that

Holley’s failure was not inadvertent under CR 60(b)(1).

       Hawk’s Superior fails to show that substantial evidence supports a strong defense to Boss’s

claim or that Hawk’s Superior’s failure to appear in the summary judgment proceedings was due

to mistake, inadvertence, or excusable neglect. Thus, Hawk’s Superior fails to show that it is

entitled to relief under the White test.6 Accordingly, the superior court did not abuse its discretion

in denying Hawk’s Superior’s CR 60(b)(1) motion for relief from judgment.

B.     MOTION TO RECONSIDER

       Hawk’s Superior contends that the superior court abused its discretion in failing to address

the White factors on review of its motion for reconsideration. We disagree.

       Under CR 59(a)(7), upon motion of an aggrieved party, the superior court may vacate a

verdict and grant a new trial where there is “no evidence or reasonable inference from the evidence

to justify the verdict or the decisions, or that [the decision] is contrary to law.” Further, under CR

59(a)(9), the court may vacate when “substantial justice has not been done.”




6
  The parties do not dispute that Hawk’s Superior met the secondary factors of the White test.
However, given that Hawk’s Superior fails to demonstrate the primary factors of the White test,
which weigh more heavily, its due diligence in seeking review and Boss’s threat of insubstantial
hardship do not tilt in favor of Hawk’s Superior. White, 73 Wn.2d at 352 (“The first two are the
major elements to be demonstrated by the moving party, and they, coupled with the secondary
factors, vary in dispositive significance as the circumstances of the particular case dictate.”).



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No. 49273-3-II


       We review a superior court’s denial of a motion for reconsideration for an abuse of

discretion. Christian v. Tohmeh, 191 Wn. App. 709, 728, 366 P.3d 16 (2015). A court abuses its

discretion when its decision is manifestly unreasonable or based on untenable grounds. Rosander

v. Nightrunners Transp., Ltd., 147 Wn. App. 392, 403, 196 P.3d 711 (2008). Though the court’s

discretion may result in a decision upon which reasonable minds may differ, it must be upheld if

it is “within the bounds of reasonableness.” In re Estate of Stevens, 94 Wn. App. 20, 30, 971 P.2d

58 (1999) (quoting Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990), review

denied, 116 Wn.2d 1009 (1991)).

       CR 59 does not prohibit a party from submitting new or additional evidence on

reconsideration. Martini v. Post, 178 Wn. App. 153, 162, 313 P.3d 473 (2013). However, the trial

court has discretion whether or not to consider additional evidence presented. Id. If the trial court

exercises this discretion and considers the additional evidence, then it must view the evidence in

the same way it would have in the underlying proceeding. Id. at 166.

       In Martini, Martini brought a negligence claim against his landlord after his wife died in

an apartment fire. Id. at 158. The superior court granted the landlord’s summary judgment motion,

finding that Martini failed to prove the element of proximate cause. Id. at 159. In his motion for

reconsideration, Martini provided the court with additional evidence on causation. Id. at 166.

Although the superior court considered the additional evidence, it declined to overturn its prior

summary judgment ruling. Id. at 160. The court reversed, holding that because the superior court

considered the additional evidence, it was required to view the evidence in the light most favorable

to Martini, as this would be the standard in evaluating the underlying motion for summary

judgment. Id. at 166.



                                                 15
No. 49273-3-II


       Here, Hawk’s Superior submitted additional evidence to the superior court in its motion

for reconsideration. The superior court was not required under CR 59 to consider this evidence.

However, the record shows that the superior court did consider Hawk’s Superior’s additional

evidence because upon receiving Hawk’s Superior’s motion, the court required Boss to provide

the court with further evidence to refute Hawk’s Superior’s defense. Once the superior court

decided to weigh the new evidence, it was required to consider the evidence in the same way it

would have in the underlying CR 60(b) motion. Id. Therefore, because the White factors controlled

in the underlying CR 60(b)(1) motion hearing, the superior court was required to consider the new

evidence in light of the White factors in ruling on Hawk’s Superior’s motion for consideration.

       In its motion for reconsideration, Hawk’s Superior presented stronger evidence in defense

of Boss’s breach of contract claim. Specifically, Hawk’s Superior provided correspondence in

which WSDOT approved Hawk’s Superior’s rock and gravel for use by Boss in the construction

project. However, Boss provided a subsequent WSDOT e-mail correspondence in which WSDOT

stated that Hawk’s Superior’s rock and gravel failed to meet its specifications upon further testing.

At best, Hawk’s Superior’s additional evidence provided a prima facie defense. White, 73 Wn.2d

at 352-53.

       And although Hawk’s Superior provided the court with stronger evidence in support of its

motion for reconsideration, Hawk’s Superior still did not present further evidence that Holley’s

failure to update his address was due to mistake, excusable neglect, inadvertence, or irregularity.

In its motion for reconsideration, Hawk’s Superior presented additional evidence regarding the

mail forwarding process and the new tenant’s process of providing Holley with any first class mail

it received. However, this evidence does not support a finding that Holley’s failure to update the



                                                 16
No. 49273-3-II


court clerk or opposing counsel of his address was a mistake, inadvertence, excusable neglect or

due to irregularity in the court proceedings. Thus, we hold that the superior court did not abuse its

discretion in denying Hawk’s Superior’s motion for reconsideration.

       We affirm.

       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.



                                                                         Lee, J.
 We concur:



                  Johanson, P.J.




                    Melnick, J.




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