      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BELLEVUE PARK HOMEOWNERS )
ASSOCIATION,                          )                 DIVISION ONE
                                      )




                                                                                    8£ :0114 01lirLIU
                   Appellant,         )                 No. 75130-1-I
                                      )
            v.                        )
                                      )                 UNPUBLISHED OPINION
AKRAM HOSSEINZADEH and JOHN )
DOE HOSSEINZADEH, wife and            )
husband, and their marital community, )
                                      )
                   Respondents.       )
                                      )                  FILED: July 10, 2017
                                      )

       DWYER, J. — A motion to vacate a judgment, brought pursuant to CR

60(b)(11), is not a substitute for a direct appeal) The superior court herein lost

sight of this principle. While this very case was on direct appeal, the superior

court improvidently entertained and improperly granted just such a motion. We

reverse.



       The Bellevue Park Homeowners Association, a condominium association,

sued Akram Hosseinzadeh for unpaid condominium special assessments,

pursuant to the Washington Condominium Act.2 Hosseinzadeh answered the

Association's complaint, alleging 11 affirmative defenses, none of which were a


       1   1n re Marriage of Thurston, 92 Wn. App. 494, 499, 963 P.2d 947 (1998).
       2   Ch. 64.34 RCW.
No. 75130-1-1/2


claim that payment was excused because Hosseinzadeh had been discriminated

against by the Association.

        The Association moved for summary judgment. Hosseinzadeh filed a

response which in part asserted that the lawsuit was brought by the Association

to retaliate against her for previously filing discrimination complaints against the

Association with the Washington Human Rights Commission (HRC),3 that a prior

agreement barred the lawsuit, and that the Association's special assessments

were arbitrary and capricious.4

        The trial court granted the Association's motion for summary judgment

and entered a personal judgment against Hosseinzadeh and a foreclosure

decree against her condominium unit. Hosseinzadeh timely filed an appeal from

the judgment (Case No. 74138-1-1).

        Three months later, however, Hosseinzadeh moved to vacate the

judgment, pursuant to CR 60(b). Hosseinzadeh alleged that the summary

judgment order was entered in violation of the Fourteenth Amendment because

the Association was motivated by discrimination when it initiated litigation against

her. This was the same claim as had been referenced in her summary judgment

response. The claim was now based on legal briefing and evidentiary




         3 Hosseinzadeh filed a fair housing complaint with the HRC in 2002 and in 2012, both of
which alleged that the Association had discriminated against her and her family. The parties
settled the 2002 complaint with no admission of wrongdoing or discrimination by the Association.
With regard to the 2012 complaint, the HRC held a hearing and concluded that no discrimination
had occurred.
         4 Hosseinzadeh never moved to amend her answer. Neither did she seek a continuance
of the hearing to allow for discovery or for the opportunity to secure additional factual declaration
testimony.


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No. 75130-1-1/3


submissions that had not been put before the trial court when it ruled on the

summary judgment motion.

       The trial court granted Hosseinzadeh's motion and entered an order

vacating the judgment.

       The Association now appeals.

                                          Il

       The Association asserts that the trial court erred by granting

Hosseinzadeh's motion to vacate pursuant to CR 60(b)(11). We agree.

       We review for abuse of discretion a trial court's order granting a motion to

vacate pursuant to CR 60(b). Luckett v. Boeing Co., 98 Wn. App. 307, 309, 989

P.2d 1144 (1999). "Discretion is abused when it is exercised on untenable

grounds or for untenable reasons." Luckett, 98 Wn. App. at 309-10 (quoting

Lane v. Brown & Haley, 81 Wn. App. 102, 105, 912 P.2d 1040 (1996)).

       CR 60(b)(11) is a "catch-all" provision granting the trial court discretion to

vacate an order or judgment for "[a]ny other reason justifying relief from the

operation of the judgment." "Application of this provision is limited to 'situations

involving extraordinary circumstances not covered by any other section of the

rule." In re Marriage of Thurston, 92 Wn. App. 494, 499, 96313.2d 947 (1998)

(internal quotation marks omitted) (quoting Lane, 81 Wn. App. at 107).

Application of this provision is "confined to cases in which the ground alleged is

something extraneous to the action of the court or goes only to the question of

the regularity of its proceedings." Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d




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No. 75130-1-1/4


811 (1947) (quoting 1 HENRY CAMPBELL BLACK, A TREATISE ON THE LAW OF

JUDGMENTS §      329, at 506 (2d ed.)).

        Significantly, CR 60(b)(11) is not to be treated as a substitute for direct

appeal. Thurston, 92 Wn. App. at 499. Errors of law are not extraordinary

circumstances "correctable through CR 60(b); rather, direct appeal is the proper

means of remedying legal errors." State v. Keller, 32 Wn. App. 135, 140, 647

P.2d 35 (1982). Indeed, the trial Court's power to vacate judgments

        "is not intended to be used as a means for the court to review or
        revise its own final judgments, or to correct any errors of law into
        which it may have fallen. That a judgment is erroneous as a matter
        of law is ground for an appeal, writ of error, or certiorari, according
        to the case, but it is no ground for setting aside the judgment on
        motion."

Kern, 28 Wn.2d at 619 (quoting 1 BLACK, supra, § 329, at 506).

        But the trial court did just that—and erred by so doing. Hosseinzadeh's

motion to vacate the judgment was nothing other than an attempt to relitigate an

issue that was foreclosed by the grant of summary judgment—a decision on the

merits of the controversy.5 The motion to vacate was simply an improper attempt

to treat CR 60(b)(11) as a substitute for direct appea1.6 The superior court's

order vacating the judgment is reversed.




         5 Hosseinzadeh's trial court and appellate briefing is replete with citations to cases and
authority that concern motions to vacate default judgments. Those cases are inapplicable. As
herein mentioned, the judgment was entered after a proceeding on the merits.
        6 The superior court also erred by considering Hosseinzadeh's motion as setting forth
"extraordinary circumstances," Thurston, 92 Wn. App. at 499 (quoting Lane, 81 Wn. App. at
107), being "extraneous to the action of the court," or calling into question the "regularity of its
proceedings." Kern, 28 Wn.2d at 619 (quoting 1 BLACK, supra, § 329, at 506).


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No. 75130-1-1/5


                                                Ill

       The Association requests an award of attorney fees and costs incurred on

appeal. We may award attorney fees based on a contractual or statutory

provision, or a well-recognized principle of equity. Herzog Alum., Inc. v. Gen.

Am. Window Corp., 39 Wn. App. 188, 191, 692 P.2d 867 (1984). RCW

64.34.364(14) authorizes an award of costs and reasonable attorney fees

incurred in connection with the collection of delinquent condominium

assessments.

        This is a collateral matter arising out of the Association's appeal of an

order vacating the judgment against Hosseinzadeh for unpaid special

assessments. Pursuant to RCW 64.34.364(14), we grant the Association's

request insofar as costs and attorney fees have been incurred in its appeal of the

trial court's order vacating the judgment.7 Upon compliance with RAP 18.1, a

commissioner of this court will enter an appropriate order.

        Reversed.




We concur:




         7 Any request for an award of fees or costs stemming from the underlying litigation on
direct appeal will be dealt with in the opinion resolving that dispute.


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