Murphy v. Falkowski

MICHELLE MURPHY, Respondent, v. BRIAN FALKOWSKI, Appellant.

No. 80554-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

September 21, 2020

UNPUBLISHED OPINION

BOWMAN, J. — A trial court's denial of a motion to vacate a default judgment under CR 60(b) will not be overturned on appeal unless the court manifestly abused its discretion. The defendant in this case failed to present substantial evidence of a prima facie defense on the merits or show excusable neglect. The trial court did not abuse its discretion in denying his motion to vacate the default judgment. We affirm.

FACTS

On April 6, 2018, Michelle Murphy filed a civil lawsuit against Brian Falkowski, her former romantic partner of more than two years. Murphy alleged that while on vacation in Belize two years earlier, Falkowski assaulted her, causing physical and emotional injuries. She sought special damages, mainly related to costs incurred for medical treatment; and general damages. On June 12, 2018, Murphy arranged to serve Falkowski personally with copies of the summons, complaint, notice of appearance, and case scheduling order.

On June 21, attorney Douglas Sulkosky filed a notice of appearance on Falkowski's behalf. Less than two months later on August 1, 2018, citing Falkowski's failure to pay the retainer fee and "cooperate" in his defense, Sulkowsky withdrew from the representation without having answered the complaint. Sulkosky provided Falkowski's Maple Valley home address for the service of additional pleadings.

Sulkosky also informed Falkowski of his intent to withdraw on August 1. Sulkosky apprised Falkowski of the next scheduled hearing date and instructed him to consult the deadlines listed in the case scheduling order, warning, "You should review the Case Schedule to determine the various deadlines." Sulkosky explained to Falkowski that he forwarded Falkowski's unnotarized responses to the requests for admissions to Murphy on the due date but did not respond to other outstanding discovery requests because "I cannot answer them for you." Sulkosky also invited Falkowski to contact him if he had any questions.

On September 14, 2018, Murphy filed a motion seeking an order of default and noted a hearing for October 3 without oral argument. On the same date, a legal assistant employed by Murphy's counsel mailed the motion and declaration to Falkowski's address. Falkowski did not respond to the motion and on October 5, 2018, the court entered an order of default.

About four months later on February 15, 2019, Murphy filed a motion seeking a default judgment of $1,058,235. Murphy supported her motion with adeclaration describing the details of the alleged assault and the declaration of a neurosurgeon who treated her neck injuries. She also provided photographs depicting injuries on her neck and facial area, documents to support her medical expenses, and evidence of damage awards and settlement amounts in comparable cases. On the same day, Murphy's attorney's legal assistant mailed all of the documents to Falkowski's address, including Murphy's motion for default judgment, her supporting evidence, notice of the court date, and her proposed findings of fact and conclusions of law.¹ Falkowski did not respond.

On February 22, approximately two weeks before the hearing on the motion for default judgment, the court's bailiff notified Murphy's counsel by e-mail that an evidentiary hearing was required and proposed several dates to schedule the hearing. The bailiff's e-mail included standard language directing counsel to "forward this communication to all other counsel/parties not already copied on this e[-]mail." On February 28, Murphy's counsel's legal assistant mailed Falkowski a letter informing him that the court set the matter for an evidentiary hearing with oral argument at 10:00 a.m. on March 15 and attached the e-mail correspondence with the court's bailiff. Falkowski did not respond.

At the evidentiary hearing on March 15, 2019, Murphy presented argument, witness testimony, and exhibits. Falkowski did not appear at the hearing. The court reserved ruling on the motion for default judgment.

On March 18, the trial court entered extensive findings of fact and conclusions of law. The court found Murphy's testimony to be "candid and entirely credible." The findings state, in pertinent part:

8. On April 6, 2016, while in Belize, Mr. Falkowski intentionally, willfully, and maliciously assaulted Ms. Murphy, both by hand and by using a thick plastic water bottle, resulting in serious physical and emotional injury.

9. Mr. Falkowski grabbed Ms. Murphy by the neck and suspended her up against the wall. Ms. Murphy testified that during the assault she feared for her life.

10. Mr. Falkowski threw Ms. Murphy by her neck across a hotel room and beat her with a thick water bottle. Photographs taken contemporaneous to the time of the assault were admitted at the evidentiary hearing as Exhibit 1. In addition, security was called to the room after the incident, and the security guards were afraid to kick Mr. Falkowski out of the room because of his physical stature and their belief he was dangerous.

. . . .

16. The assault caused problems in Ms. Murphy's neck, right arm, and right hand, including pain, numbness, and weakness.

17. Because of the assault, Ms. Murphy could not feel the fingers in her right hand and could not turn her neck to the right. This loss of feeling in her fingers in her right hand has impacted Ms. Murphy's work and made it difficult for her to do the work she was able to perform prior to the assault.

18. More specifically, the injuries from the assault affected Ms. Murphy's ability to perform injections and other procedures at work. It also interfered with her ability to compete athletically.

19. Mr. Falkowski's assault of Ms. Murphy caused her to need diagnostic imaging, physical therapy, and a cervical spine disc replacement surgery, which included replacing her natural vertebral bone with an artificial disc.

. . . .

24. Ms. Murphy testified that she now lives in constant fear of seeing or running into Mr. Falkowski, whether it be when she is riding her bicycle or thinking about her two children, ages 16 and 13, going to the bus stop for school, because not only does Mr. Falkowski live in relative proximity to Ms. Murphy and possesses many weapons, but they are also part of the same athletic community. Ms. Murphy further testified that after the assault she views the world differently, and now walks through the world and her life in fear of seeing Mr. Falkowski.. . . .

27. Ms. Murphy's medical bills caused by the assault total $105,735.48 to date. These bills, as well as a declaration from Dr. Richard Wohns describing Ms. Murphy's medical treatments and conditions, were admitted into evidence at the evidentiary hearing as Exhibit 3.

28. As detailed above, Ms. Murphy suffered long-lasting emotional trauma as a result of Mr. Falkowski's intentional, willful, and malicious assault.

29. The emotional distress damages Murphy suffered as a result of Falkowski's assault are $950,000.

On March 27, 2019, the court entered a default judgment against Falkowski in the amount of $1,058,235. The next day on March 28, Murphy's counsel's legal assistant mailed the court's findings and conclusions and the judgment to Falkowski's address.²

Two months later, new counsel filed a notice of appearance on behalf of Falkowski. On July 31, 2019, four months after entry of the default judgment, Falkowski filed a motion for an order to show cause and to vacate the default judgment and order of default.

Falkowski denied intentionally assaulting or "causing any injuries" to Murphy and asserted that she exaggerated her claimed damages. In his declaration, Falkowski acknowledged that he and Murphy had an argument their last night in Belize. According to Falkowski, Murphy was heavily intoxicated and tried to provoke him by first pouring a gallon of water over him as he lie in bed and then pouring another liquid over him, which he "perceived" to be urine.When he attempted to take the container out of Murphy's hands, Falkowski alleged that Murphy attacked him. Falkowski maintained that he only defended himself and did not cause any visible injuries to Murphy.

Falkowski submitted copies of text and e-mail messages he exchanged with Murphy in the days and months following their return from Belize. He relied on that evidence to show that while distraught over the demise of the relationship, Murphy mentioned no lingering physical effects from the incident. Falkowski also alleged that Murphy completed at least one "Iron Man"³ event after she returned from Belize and before she had surgery, which led him to suspect that she sustained the injuries in a cycling accident.

Falkowski asserted that his "neglect in allowing the default judgment to be entered, if any, is wholly excusable." In explaining his failure to respond to the complaint and Murphy's motions, Falkowski said he believed the lawsuit "would never become a serious issue" due to the "absurdity of the allegations." And because his former counsel noted on a June 2018 "transmittal memorandum" that he filed a notice of appearance to "avoid any defaults," Falkowski reasonably believed that he was protected against a default judgment. Falkowski also said that his prior attorney failed to tell him that he needed to answer the complaint.

Falkowski stated that he did not receive any court filings or correspondence by e-mail and that he did not "recall" receiving any pleadings in the mail after Sulkosky withdrew. Falkowski stated, "If I did, I certainly did not perceive those mailings as contradicting what I had been told by Sulkosky—that Ihad 'avoided default'." While Murphy mailed the default judgment to him in late March, Falkowski reported that he did not receive it until "late April or early May" and did not open the envelope until several weeks later.

The court entered a show cause order and held a hearing on the motion to...