    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 HELEN YANKEE and DAVID EARL
 YANKEE, as individuals and as a part of         No. 77544-8-I
 the marital community comprised
 thereof,                                        DIVISION ONE

                     Appellants,                 UNPUBLISHED OPINION

              V.
                                                 FILED: March 11,2019
 FRANTZ JEROME-PIERRE, M.D.,t and
 “JANE DOE” JEROME-PIERRE,
 husband and wife and the marital
 community comprised thereof; GROUP
 HEALTH COOPERATIVE, a
 Washington Corporation; and
 OVERLAKE HOSPITAL MEDICAL
 CENTER, a Washington Corporation,

                     Respondents,

TIM SCEARCE, M.D. and “JANE DOE”
SCEARCE, husband and wife and the
marital community comprised thereof,

                     Defendants.



      MANN, A.C.J.   —   Helen and David Yankee appeal the denial of their CR 60(b)

motion to vacate orders of judgment in a medical malpractice action. Because the
No. 77544-8-1/2

Yankees do not demonstrate that the trial court abused its discretion in denying the

motion, we affirm.1



          On October 31, 2010, Helen Yankee was transported to Overlake Hospital by

ambulance after suffering stroke-like symptoms and a fall at her home.2 Neurologist Dr.

Timothy Scearce, an employee of Group Health Cooperative, determined that the

window of opportunity to perform intravenous thrombolytic treatment had passed and

recommended that Helen undergo intra-arterial thrombolytic treatment. Interventional

radiologist Dr. Frantz Pierre-Jerome performed the intra-arterial procedure.

          On October 31, 2014, the Yankees sued Dr. Scearce, Dr. Pierre-Jerome,

Overlake Hospital, and Group Health Cooperative for negligence. The Yankees claimed

that a complication arose during the intra-arterial procedure that resulted in the

dissection of Helen’s carotid artery, and that the doctors breached the standard of care

by failing to administer thrombolytic treatment intravenously.

          All defendants moved for summary judgment. On June 5,2015, the parties

stipulated to the dismissal of Dr. Scearce as a defendant. On August 17, 2015, the trial

court granted summary judgment dismissal of Dr. Pierre-Jerome as a defendant. On the

same day, the Yankees moved to amend the complaint to add a claim for failure to




          t The original complaint lists Frantz Jerome-Pierre’s name incorrectly. His name is Frantz Pierre-
Jerome.
         1 Although we recognize that the Yankees are pro se on appeal, we hold self-represented litigants

to the same standards as attorneys. See In re Pers. Restraint of Rhem, 188 Wn.2d 321, 328, 394 P.3d
367 (2017).
         2 The facts are taken from the Yankees’ complaint and the declarations filed in support of their

response to summary judgment.


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No. 77544-8-1/3

obtain informed consent, contending that they were inadequately advised of the risks of

the intra-arterial procedure.3 The trial court denied the motion.

        The case proceeded to trial against Overlake Hospital and Group Health

Cooperative. The Yankees stipulated to a motion in Hmine to exclude any evidence

involving the informed consent claim. A jury found in favor of the defendants. On

September 6, 2016, the trial court entered a judgment and final order of dismissal. The

Yankees did not appeal.

        On September 1, 2017, acting pro Se, the Yankees filed a CR 60(b) motion to

vacate all of the dismissal orders. The Yankees asserted that only a “board-certified

neuro-interventional radiologist” would be qualified to perform the intra-arterial

procedure. The Yankees contended that Dr. Pierre-Jerome obtained their consent to the

procedure without informing them that he was not a neurologist. They argued that, in

performing the procedure, Dr. Pierre-Jerome “represented by conduct” that he

possessed the necessary qualifications, which constituted fraud or misconduct entitling

them to vacation of the judgment pursuant to CR 60(b)(4) and CR 60(b)(1 I ).4

        The trial court denied the Yankees’ motion to vacate. The Yankees appeal.



        We review a trial court’s denial of a motion to vacate for abuse of discretion.

Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). The trial court’s decision

will only be disturbed “if there is a clear showing that the exercise of discretion was



         ~ Although the motion is discussed by parties, the Yankees did not designate the motion as part of
the record on appeal.
         ~ The Yankees also cited CR 60(c), which permits a court “to entertain an independent action to
relieve a party from a judgment, order, or proceeding.” But, by its very terms, CR 60(c) contemplates a
party’s commencement of a separate action to vacate the judgment.


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No. 77544-8-1/4

manifestly unreasonable, based on untenable grounds, or based on untenable

reasons.” Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995). Review of a

decision on a motion to vacate is limited to the decision on the motion, not the

underlying judgment. Biurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533

(1980). The exclusive procedure to attack an allegedly defective judgment is by appeal

from the judgment, not by appeal from a denial of a CR 60(b) motion. Biurstrom, 27 Wn.

App. at 450-51; RAP 2.2(a)(10); RAP 2.4(c).

        CR 60(b)(4) provides for the vacation of a judgment for fraud, misrepresentation,

or other conduct of an adverse party. Lindgren v. Lindciren, 58 Wn. App. 588, 596, 794

P.2d 526 (1990). “The rule does not, however, permit a party to assert an underlying

cause of action for fraud that does not relate to the procurement of the judgment.”

Lindciren, 58 Wn. App. at 596. The “fraudulent conduct or misrepresentation must cause

the entry of the judgment such that the losing party was prevented from fully and fairly

presenting its case or defense.” Lindcjren, 58 Wn. App. at 596. Our review is limited to

determining whether the evidence shows that fraud, misrepresentation, or misconduct

was “highly probable.” Dalton v. State, 130 Wn. App. 653, 666, 124 P.3d 305 (2005).

        Here, the Yankees’ allegations are not of the type that serve as a basis for

vacation of the orders pursuant to CR 60(b)(4).5 The rule contemplates fraud

perpetrated by a party in obtaining the judgment. ~ RCW 4.72.0 10. Typical examples

include perjured testimony or the withholding of documents during discovery. ~ KARL


         ~ The Yankees argue that the trial court addressed only CR 60(b)(1 1) and failed to consider their
motion under CR 60(b)(4). While the trial court may not have referred explicitly to CR 60(b)(4) it is clear
that the trial court considered the Yankees’ allegations of fraud regarding Dr. Pierre-Jerome’s
qualifications. For example, in its oral ruling, the trial court stated:
         What’s been brought here is—has nothing to do with any fraud that was perpetrated during the
         discovery process or during the course of trial.


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No. 77544-8-1/5

B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE (6th ed. 2013). But the Yankees

fail to establish any fraud relating to the procurement of the judgment.6 There is no

question that the Yankees were aware of Dr. Pierre-Jerome’s qualifications during the

proceedings in the trial court; the record shows that a copy of his physician biography

on the Overlake Hospital website was available in discovery. Furthermore, at no time

during the underlying action did the Yankees claim that Dr. Pierre-Jerome was

unqualified to perform the intra-arterial procedure. Therefore, even if, as the Yankees

allege, Dr. Pierre-Jerome did not discuss his qualifications prior to obtaining consent for

the procedure, it had no bearing on the judgments in favor of the defendants.

        Nor did the Yankees establish they were entitled to relief under CR 60(b)(1 1). CR

60(b)(1 1) provides that the court may vacate an order for “[alny other reason justifying

relief from the operation of the judgment.” Despite its broad language, CR 60(b)(11) is

“not a blanket provision authorizing reconsideration for all conceivable reasons.” State v.

Keller, 32 Wn. App. 135, 141, 647 P.2d 35 (1982). Rather, [r}elief pursuant to CR

60(b)(1 1) should be confined to “situations involving extraordinary circumstances not

covered by any other section of the rule.” In re Marriage of Thurston, 92 Wn. App. 494,

499, 963 P.2d 947 (1998). We apply CR 60(b)(1 1) only “to serve the ends of justice in

extreme, unexpected situations.” In re Detention of Ward, 125 Wn. App. 374, 379, 104

P.3d 751 (2005). As discussed above, the Yankees chose not to litigate a claim

regarding Dr. Pierre-Jerome’s qualifications, despite being aware of them at the time of

trial. They fail to establish any extraordinary circumstances requiring vacation of the




        6 The Yankees’ brief focuses on the elements of a cause of action for fraud. This is distinct from
fraud as contemplated by CR 60(b)(4).


                                                        5
No. 77544-8-116

judgments, and the trial court did not abuse its discretion in denying the CR 60(b)

motion.7

        Finally, the Yankees contend, for the first time on appeal, that the trial court erred

in dismissing the informed consent claim “on stipulated summary judgment” because

Helen “did not have the capacity to consent to dismissing the informed consent claim.”

But even if this court were to exercise its discretion and consider this claim under RAP

2.5(a), the trial court denied the Yankees’ motion to amend the complaint to plead an

informed consent claim. No stipulation was involved.

        We affirm the trial court’s denial of the Yankees’ CR 60(b) motion.




                                                               ‘
WE CONCUR:




       ~ Because we conclude that the Yankees did not establish a basis for relief, we do not address the
respondents’ claims that the Yankees’ CR 60 motion was procedurally defective.


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