A.J. MUELLER, Appellant, v. TRAVIS MILLER, ET AL., Respondents.
[1] Dismissal and Nonsuit - Failure To State Claim - Test. An action may be dismissed under CR 12(b)(6) for failure to state a claim upon which relief can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. In ruling on the motion to dismiss, the court must accept the facts alleged in the complaint as true.
[2] Dismissal and Nonsuit - Failure To State Claim - Review - Standard of Review. A trial court's dismissal of an action under CR 12(b)(6) for failure to state a claim upon which relief can be granted is reviewed de novo.
[3] Dismissal and Nonsuit - Failure To State Claim - Conversion To Summary Judgment - Facts Outside Pleadings. Under CR 12(b), a motion brought under CR 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted is treated as a summary judgment motion if the motion is supported by facts outside of the pleadings.
[4] Judgment - Summary Judgment - Review - In General. An appellate court reviewing a summary judgment engages in the same inquiry as the trial court, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party and applying the standard of CR 56(c).
[5] Execution - Sale - Expiration of Judgment - Effect. A sheriff's sale conducted in execution of a judgment lien is void ab initio if all of the steps in execution of the lien are not completed before the expiration of the statutory time limit on the judgment; if the judgment expires before the sale has been confirmed, any ancillary proceedings by way of execution expire with it. A void sheriff's sale cannot be cured either by a confirmation of the sale or by a writ ordering redemption.
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[6] Execution - Sale - Confirmation - Necessity. A sheriffs sale conducted in execution of a judgment lien is not completed until it is confirmed; the sale is invalid if it is not confirmed before the judgment expires.
[7] Appeal - Review - Issues Not Raised in Trial Court - Failure To Obtain Ruling. An issue not ruled on by a trial court in granting relief is not a proper subject for appellate review.
[8] Quieting Title - Collateral Attack - Validity - Sheriff's Sale - Execution of Judgment. A quiet title action is an appropriate method for a third party grantee of a judgment debtor to collaterally attack the validity of a sheriffs sale conducted in execution of a judgment lien.
[9] Judgment - Vacation - Collateral Proceedings - Lack of Jurisdiction. A final judgment, order, or proceeding may be vacated under CR 60(b) in collateral proceedings if the judgment, order, or proceeding is absolutely void on jurisdictional grounds.
[10] Judgment - Vacation - Void Judgment - Timeliness. There is no time limitation on challenging a void judgment.
[11] Pleading - Amendment - Discretion of Court - Lack of Explanation. Leave to amend a complaint under CR 15(a) is a matter addressed to the trial court's discretion. Discretion is abused if leave to amend is denied by the trial court without an explanation.
[12] Appeal - Decisions Reviewable - Moot Questions - Result of Appellate Decision. An assignment of error rendered moot by an appellate court's resolution of another part of the case need not be addressed by the appellate court.
Nature of Action: The purchaser of real property at a sale conducted pursuant to a probate court order sought to quiet title in the property as against another purchaser who had redeemed the property following a sheriff's sale conducted in execution of a judgment lien on the property. The writ of execution on the judgment lien was issued 28 days before the expiration of the 10-year statutory period within which the underlying judgment could be enforced, but the sheriff's sale was conducted after that period had expired. The plaintiff also brought a separate motion to intervene in the underlying collection action in order to move to have the confirmation of the sheriffs sale, which was conducted in execution of the underlying judgment lien, vacated as void.
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Superior Court: The Superior Court for Pierce County, Donald H. Thompson, J., in No. 83-2-02331-4, on June 10, 1994, denied the plaintiffs motion to intervene in the underlying collection action; and in No. 93-2-10063-4, on June 10, 1994, dismissed the quiet title action for failure to state a claim on which relief could be granted and denied the defendants' motion for CR 11 sanctions against the plaintiff.
Court of Appeals: Holding that the sheriff's sale and the order confirming the sale were rendered void by the expiration of the 10-year statutory period for executing on the judgment lien, that the validity of the sheriffs sale and confirmation order could be collaterally attacked in the context of a quiet title action, and that, on remand, the trial court must consider the plaintiff's motion to amend her complaint to claim damages for lost rental income, the court affirms the trial court's denial of CR 11 sanctions, reverses the dismissal of the quiet title action, remands for further proceedings consistent with its opinion, and dismisses the appeal of the plaintiff's motion to intervene in the underlying collection action.
Walter D. Palmer, for appellant.
James M. Healy, Jr., and Law Offices of James M. Healy, Jr., for respondents.
603.
HOUGHTON, J. - A. J. Mueller filed an action to quiet title in real property, arguing that a prior sheriff's sale was void because it took place more than 10 years after the entry of the original judgment. The trial court dismissed Mueller's claim on the CR 12(b)(6) motion of Travis Miller, the purchaser at the sheriff's sale. Mueller
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appeals on grounds that the sheriff's sale was void. Miller cross-appeals the trial court's denial of his motion for CR 11 sanctions. In a companion case, Mueller appealed the trial court's denial of her motion to intervene in the previous collection action.«1» We consolidate the two appeals, reverse the trial court's dismissal of Mueller's claim, affirm the trial court's denial of Miller's claim for CR 11 sanctions, and dismiss Cause No. 18642-0-11 as moot.
SUMMARY
The complexity of the procedural history in this case necessitates our use of both a brief summary and a detailed recitation of the facts. Bennie Griffin owned the real property at issue in this dispute prior to his death; this property was encumbered by four judgment liens in the 1980s. Landsail Investments and Travis Miller, respectively, held the first and third judgment liens. Landsail applied for a writ of execution, which was issued 28 days short of 10 years after the first judgment was entered. Landsail bought the property at the sherifrs sale, which was held after the 10year period had expired, and an order confirming that sale was entered. Miller redeemed the property. Prior to the issuance of the sheriffs deed to Miller, David Swadberg, judgment creditor two, probated Griffin's estate and was named personal representative (PR). Swadberg obtained a probate court order allowing the sale of the property, sold the property to Mueller, entered an order confirming the sale, and conveyed the property to Mueller by special warranty deed. Mueller filed an action to quiet title to the property, arguing that the sheriff's sale was void because it took place more than 10 years after the entry of the original judgment. The trial court dismissed Mueller's claim on Miller's CR 12(b)(6) motion.
«1» Mueller assigned error to the trial court's denial of her motion to intervene to challenge the sheriff's sale in Universal Collections, Inc. v. Bennie Griffin, et al., Cause No. 18642-0-11.
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FACTS AND PROCEDURAL HISTORY
This quiet title action arose from events that began in the early 1980s. The following background facts were presented through the pleadings:
February 1992: Bennie Griffin died intestate, leaving heirs but no spouse or issue; his only known asset was the real property at issue in this case. The property was not subject to a mortgage or deed of trust, but was subject to four judgment liens. This is not disputed, but it is also not supported in the record.
July 15, 1982: The first judgment was entered in favor of one of Griffin's creditors.«2»
June 17, 1992: A writ of execution was issued, 28 days prior to 10 years from the date the original judgment was entered.
«2» The following judgments were entered against Griffin:
(1) Judgment creditor: Universal Collections, Inc.
Judgment entered: July 15,1982
Judgment amount: $7801.23
Judgment assignee: Landsail Investments (June 29, 1992)
The judgment in favor of Universal was entered in Pierce County District Court #1 Cause No. 82-756975-9, on July 15, 1982 for $7801.23; the certificate of transcription was completed on August 27, 1992, however, the transcription to Pierce County Superior Court Cause No. 83-2-02331-4 was not filed until May 20, 1983; Universal sold its interest ($8581.35) to Shawn Dillon on December 28, 1988; Dillon then sold his interest to Landsail on June 29,1992.
(2) Judgment creditor: Puget Sound Collections, Inc.
Judgment entered: March 15, 1984
Judgment amount: $2121.07
Judgment number: 84-9-01358-4
judgment assignee: David Swadberg
(3) Judgment creditor: Chiyo Y. Petties
Judgment entered: December 18, 1984
Judgment amount: $1024.50 + $17.00
Judgment number: 85-9-00479-6
Judgment assignee: Travis Miller (February 17, 1993)
(4) Judgment creditor: International Mercantile Co., Inc.
Judgment entered: January 14, 1987
Judgment amount: $1020.00
Judgment number; 87-9-01529-8
Judgment assignee: Mutual Security Financing, Inc.
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July 14, 1992: The original judgment lien expired.
Aug. 14, 1992: A sheriffs sale was held; Landsail, as judgment creditor, gave a non-cash, high bid of $18,296.04. Miller's attorney below asserted that all parties received notice of the sheriffs sale and had time to file objections to the confirmation of the sale; however, the record contains a general public notice of the sale and nothing indicating that the parties individually received notice of the sale.
Sept. 9, 1992: The order confirming the sheriffs sale was entered.
Feb.17,1993: Miller, as assignee of a judgment lien, gave notice of his intent to redeem. The Pierce County Sheriff refused to redeem, asserting that Miller could not redeem from a void sale, i.e., a sale held after the 10-year statutory period expired. No response from the sheriff documenting its refusal to redeem is in the record.
May 21, 1993: Millet tendered a check for redemption in the amount of $17,297,33. Receipt of this payment is later noted in the sheriffs deed.
May 28, 1993: Miller brought an application for a writ of mandamus, asking that the sheriff be ordered to accept his redemption notice.
June 8, 1993: Miller's motion was brought before a Court Commissioner, who denied the application because the sale occurred after
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the statutory period. Miller's June 30,
1993 motion for reconsideration was also
denied. The Commissioner's rulings are
not in the record.
July 9, 1993: Miller moved for revision of the
Commissioner's order.
July 23, 1993: Miller argued for revision of the order
before Judge Cohoe. By letter dated July
27, 1993, Judge Cohoe revised, ruling that
the sheriff did not have standing to deny
Miller's motion to redeem and that no
real party in interest was seeking to void
the sale, so he issued a writ of mandamus
ordering the sheriff to allow Miller to
redeem.
July 30, 1993: Swadberg, judgment creditor two, filed a petition to probate Griffin's estate, and he was appointed PR. Swadberg obtained an order apparently authorizing him to sell the property free of the three remaining judgment liens, subject to Miller's claims arising from the sheriff's sale. Neither the petition nor the order are in the record.
Aug. 2, 1993: The order granting the writ of mandamus was entered, ordering the sheriff to allow Miller to redeem.«3» Miller notified Griffin's original judgment creditors of the expiration of the redemption period.
Sept. 13, 1993: After three weeks notice, the PR held a
«3» This order restated the ruling in the July 27, 1993 letter. Judge Cohoe ruled that (1) the sale was regular on its face; (2) the sheriff had no standing to attack the confirmation of the sale; (3) Miller had the right to redeem; (4) the cases regarding the requirement that all steps of the execution be completed before the judgment expires, involve challenges before the sale, not as here, where the confirmation had taken place a year earlier; and (5) no real party in interest was seeking to void the sale.
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public sale of the property, at which Mueller
purchased the property for $17,500.00
cash, paid at the close of the sale.
Sept. 28, 1993: An order confirming the probate sale was entered. This order is not in the record.
Sept. 30, 1993: The PR conveyed the property to Mueller via special warranty deed. No encumbrances are listed on this deed. The PR paid the amounts noted on the judgment liens; however, this payment is not documented in the record.
Oct. 6, 1993: The sheriff issued a sheriffs deed to
Miller. All rights to redeem from Miller
had expired on October 4, 1993.
Oct. 7, 1993: Mueller brought an action to quiet title in
property located at 5114 South Sheridan
in Tacoma, against Miller, Landsail, and
the occupants of the premises.«4» Mueller
also filed a lis pendens.
Dec. 2, 1993: Miller answered.«5»
«4» Mueller alleged that Miller had no cognizable interest in the property because Landsail/Miller obtained the property at a sheriff's sale, which was void because it was held more than 10 years after the entry of the original judgment.
«5» In his answer, Miller asserted that Mueller only purchased a right of redemption, which had expired 60 days after Miller had redeemed the property. In an amended answer, Miller asserted that Mueller had no interest in the property because at the time she purchased the property from the PR, the estate's rights of redemption had expired. Miller also changed his affirmative defenses, asserting that (1) Mueller's pleadings were insufficient because she failed to allege fraud or misrepresentation in this action, which essentially was a collateral attack to set aside the order confirming the sherif's sale, as required in CR 60(b)(1) and RCW 4.72.010; (2) Miller was a bona fide purchaser, thus not subject to equitable claims made against his predecessor Landsail; and (3) Mueller was precluded from asserting her claim because her predecessor, Griffin's estate, had the opportunity to challenge the court order allowing the redemption by Miller. Miller also counterclaimed for interference with his expected rental income and for the total amount he spent on the property. Finally, Miller asserted a third-party claim against Swadberg for interference with his expected rental income. The amended answer was filed August 24, 1994, after this appeal was filed.
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Dec. 15, 1993: Mueller filed a reply and a motion for summary judgment.«6»
Jan. 18, 1994: Miller moved to amend his answer, and filed a motion in opposition to Mueller's motion for summary judgment.«7»
Jan. 28, 1994: The trial court (Judge Thompson) heard argument on the summary judgment motion, issued an oral ruling and filed a written ruling denying the motion for summary judgment, and granted Miller's motion to amend his answer.«8»
May 13, 1994: Miller moved for dismissal pursuant to CR 12(b)(6) and for CR 11 sanctions against Mueller.«9»
May 25, 1994: Mueller filed a motion to amend her complaint.
«6» In the reply, Mueller asserted that the allegations in Miller's answer violated CR 11. In the motion for summary judgment, Mueller argued that the sheriff's sale was void; that Miller's subsequent redemption did not convert the void sale into a valid one; that Mueller's payment of $2260.42 into the court registry on October 21, 1993, satisfied any claim Miller had in the property; and that Miller's answer was frivolous in violation of CR 11.
«7» In lieu of filing a responsive brief with this court, Miller relies on his response to Mueller's summary judgment motion.
«8» Mueller argued that summary judgment should be granted because all steps of the execution of a judgment must be completed within the 10-Year statutory period, and any action taken thereafter was void. Miller argued that Mueller's action was basically a collateral attack on the order confirming the sheriff's sale, brought over one year after the order was entered, and therefore, Mueller must show fraud or good reason in law to set aside the prior order.
«9» In Mueller's May 31, 1994 answer to Miller's motion to dismiss, she asserted that all of the material facts were presented to the court in the affidavit of Mueller's attorney and that the court should still grant Mueller summary judgment. Mueller's attorney also responded to Landsail's motion for CR 11 sanctions with an affidavit detailing the correspondence between counsel, including Mueller's proposed order quieting title in Mueller and Landsail's response that it would agree to only an order of dismissal.
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May 31, 1994: Mueller moved to intervene in Universal
Creditors, Inc. v. Bennie Griffin, judgment
one, in order to make a motion in that
action to vacate the confirmation of the
sheriff's sale as void. The trial court
denied the motion on June 10, 1994.
June 10, 1994: The trial court heard argument,«10» granted Miller's CR 12(b)(6) motion, set aside the lis pendens, and denied Mueller's motion to amend her complaint.«11» The trial court also denied Miller's motion for CR 11 sanctions.
June 16, 1994: The trial court filed its denial of Mueller's motion to amend the complaint, in which Mueller sought to amend to include a claim for damages from interference causing loss of rents.
On June 23, 1994, Mueller appealed the CR 12(b)(6) dismissal. The trial court subsequently filed its denial of Miller and Landsail's motion for CR 11 sanctions, and Miller cross-appealed. On September 28, 1994, Mueller appealed the denial of her motion to intervene.
ANALYSIS
[1, 2] Mueller contends that the trial court erred in granting Miller's CR 12(b)(6) motion to dismiss.«12» Pursuant
«10» Miller and Landsail argued that Mueller had already presented her arguments challenging the validity of the sheriff's sale in her summary judgment motion, and should not be allowed to present another collateral attack on the order confirming the sheriff's sale.
«11» The trial court stated that it was "not going to go behind Judge Cohoe's ruling."
«12» Pursuant to CR 12(b):
Every defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading. . ., except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under rule 19 .... If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by rule 56.
(Emphasis ours).
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to CR 12(b)(6), a defendant may move to dismiss where a plaintiff's pleadings do not state a claim for which relief can be granted. Danzig v. Danzig, 79 Wn. App. 612, 616, 904 P.2d 312 (1995), review denied, 129 Wn.2d 1011, (1996). A court should grant dismissal only where " 'it appears, beyond doubt, that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Danzig, 79 Wn. App. at 616 (quoting Berge v. Gorton, 88 Wn.2d 756, 759, 567 P.2d 187 (1977)). When considering the motion, the court must accept the facts alleged in the complaint as true. Danzig, 79 Wn. App. at 616 (citing Berge, 88 Wn.2d at 759). An appellate court reviews a CR 12(b)(6) dismissal de novo. Danzig, 79 Wn. App. at 616 (citing Cutler v. Phillips Petroleum Co.,124 Wn.2d 749, 755, 881 P.2d 216 (1994), cert. denied, 115 S. Ct. 2634 (1995)).
[3, 4] Mueller's attorney submitted his affidavit containing facts outside the pleadings in response to the CR 12(b)(6) motion. A motion to dismiss pursuant to CR 12(b)(6) that is supported by materials outside of the complaint is treated as a summary judgment motion. See Wilkerson v. Wegner, 58 Wn. App. 404, 408 n.2, 793 P.2d 983 (1990)(citing St. Yves v. Mid State Bank, 111 Wn.2d 374, 377, 757 P.2d 1384 (1988), overruled on other grounds in Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990)). Generally, this court engages in the same inquiry, as the trial court in reviewing a summary judgment; it views the pleadings and affidavits in the file, and all reasonable inferences therefrom, in the light most favorable to the nonmoving party, and it grants judgment when no material issue of fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilker
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son, 58 Wn. App. at 408. (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)).
A. Sheriffs Sale
[5, 6] Mueller asserts that the trial court should have quieted title in the property to her because the sherifTs sale was void, arguing that all of the steps in the execution of a judgment lien must be completed within the statutory period. Mueller contends that (1) the sheriff's sale was void because it occurred more than 10 years after the original judgment was entered; (2) the confirmation of the sheriffs sale could not cure the void sale; and (3) the writ ordering redemption did not validate the void sale.
"A judgment lien is born by statute, RCW 4.56.190,[«13»] and dies by statute, RCW 4.56.210.[«14»]" Grub v. Fogle's Garage, Inc., 5 Wn. App. 840, 843, 491 P.2d 258 (1971). The Grub court held that "'when the judgment expires the ancillary proceedings by way of execution, if the sale has not been confirmed, expire with it.'" Grub, 5 Wn. App. at 843 (quoting Ferry County Title & Escrow Co. v. Fogle's Garage, Inc., 4 Wn. App. 874, 880, 484 P.2d 458, review denied, 79 Wn.2d 1007 (1971)) (Italics omitted).
A trial court must confirm a sheriff's sale pursuant to
«13» Pursuant to former RCW 4.56.190:
The real estate of any judgment debtor, and such as the judgment debtor may acquire, not exempt by law, shall be held and bound to satisfy any judgment of ... the supreme court, court of appeals, superior court, or district court of this state, and every such judgment shall be a lien thereupon to commence as provided in RCW 4.56.200 and to run for a period of not to exceed ten years from the day on which such judgment was entered ....
Former RCW 4.56.190 (1992), LAWS OF 1987, ch. 442, § 1103. This statute was amended in 1994 to reflect a provision in RCW 6.17.020(3), which now permits the extension of a judgment lien for an additional 10-year period pursuant to court order. See RCW 4.56.190; LAWS OF 1994, ch. 189, § 3; RCW 6.17.020; LAws OF 1994, ch. 189, § 1.
«14» Pursuant to RCW 4.56.210(1):
[A]fter the expiration of ten years from the date of the entry of any judgment heretofore or hereafter rendered in this state, it shall cease to be a lien or charge against the estate or person of the judgment debtor. No suit, action or other proceeding shall ever be had on any judgment rendered in this state by which the lien shall be extended or continued in force for any greater or longer period than ten years.
The 1994 amendment providing for an extension of the 10-year period did not change the substance of this provision.
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RCW 6.21.110. "Confirmation is an essential procedural step in completion of an execution sale." Ferry, 4 Wn. App. at 880 (citing Betz v. Tower Sav. Bank, 185 Wash. 314, 322, 55 P.2d 338 (1936)). Confirmation is a condition precedent to the issuance of a sheriff's deed, which passes legal title to the purchaser. RCW 6.21.120; Ferry, 4 Wn. App. at 880 (citing Cogswell v. Brown, 102 Wash. 625, 173 P. 623 (1918)). Thus, the Ferry court concluded that the sale is completed only when it is confirmed within the statutory period. Ferry, 4 Wn. App. at 880. Both Grub and Ferry concerned prohibition of the sheriffs sale; they did not concern a collateral attack after the sale was confirmed. Grub, 5 Wn. App. at 841; Ferry, 4 Wn. App. at 880.
Mueller is correct that the sheriff's sale on August 14, 1992, occurred after the 10-year period of the judgment lien, which expired on July 14, 1992. A sale that occurs after the lien has expired is void because "'[t]here being no lien in existence, there could have been no authority for the sale in any execution that might have been issued.'" Hardin v. Day, 29 Wash. 664, 665, 70 P. 118 (1902)(affirming trial court's refusal to confirm sale that occurred after the judgment lien expired) (quoting Packwood v. Briggs, 25 Wash. 530, 535, 65 P. 846 (1901)(competing mortgage and judgment liens, held execution void because lien ceased to exits prior to sale)). Thus, the sheriff's sale was void at the outset.
Mueller is also correct that subsequent court actions could not cure or validate the void sale. First, the order confirming the sale could not make a void sale valid. Confirmation can only cure "irregularities in the manner of conducting sales." Compare Vietzen v. Otis, 46 Wash. 402, 407-08, 90 P. 264 (1907)(foreclosure sale in wrong county, applying execution sale analysis because sheriff follows same procedural steps, confirmation could not cure sale void at outset), with Gunstone v. Robbins, 158 Wash. 80, 85, 290 P. 844 (1930)(confirmation of sheriffs sale can cure irregularity where order directed sheriff of wrong county to conduct sale, but sheriff of correct county actu
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ally conducted sale). "[T]he confirmation by the court of a void sale does not render it valid." Byam v. Albright, 94 Wash. 108, 118-19, 162 P. 10 (1916)(execution sale of homestead interest void)(additional citation omitted).
Second, we find no authority specifically discussing whether a writ ordering the sheriff to allow redemption could cure a void sale; however, if the confirmation could not validate a void sale, a fortiori, a writ directing redemption could not validate a void sale.
Miller attempts to distinguish the cases regarding judgment liens by pointing out that none has involved a challenge after the sale was confirmed; however, this distinction does not change the rule that all steps to the execution, including confirmation, must be completed within 10 years. This case is factually similar to both Hardin and Packwood, in which both the sale and confirmation would have occurred after the statutory period, had no challenge been filed. While those cases, respectively, refused confirmation and enjoined a sheriff's sale, neither ruling would have been made unless the sale was void and incurable by subsequent confirmation.
B. Miller's Affirmative Defenses
[7] Mueller addresses all of Miller's affirmative defenses in her brief, however, those issues are not before this court because the court below did not rule on them in granting the CR 12(b)(6) motion. See generally King County v. Washington State Boundary Review Bd., 122 Wn.2d 648, 660, 860 P.2d 1024 (1993)(holding that only when parties brief and argue issue in lower court, and lower court rules on issue, is issue properly raised on appeal). Thus, we do not address those arguments.
C. Quiet Title as Collateral Attack on Void Judgment
[8, 9] Mueller further contends that a quiet title action is the appropriate remedy to challenge a void sale, citing Krutz v. Isaacs, 25 Wash. 566, 66 P. 141 (1901). The Krutz
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court held that a quiet title action, not an action to vacate the judgment, was the appropriate means for the grantee of a judgment debtor to clear the title of land sold under a void judgment. Krutz, 25 Wash. at 572-74, 577-78. In Krutz, the judgment and subsequent sheriff's sale were void for improper service. Krutz, 25 Wash. at 566-78. The court stated that the grantee, who purchased from the judgment debtor, was not a party to the prior judgment and could not have brought a motion to vacate the void judgment. Krutz, 25 Wash. at 566-78. Similarly, Mueller, having an interest in the property as the purchaser from Griffin's estate, made a collateral attack on the validity of the sheriffs sale through this quiet title action.«15»
Essentially, Mueller's quiet title action is., a collateral attack on the sheriff's sale and subsequent order confirming the sale. Relief from a final judgment, order, or proceeding may be obtained pursuant to CR 60.«16» "A collateral attack may be maintained only against a final order or judg-
«15» The probate order permitting the PR to sell the property is not in the record before us, so we cannot determine what, if any, restrictions were placed on the sale. Further, Mueller stated that all judgment creditors, including Miller, were paid after the probate sale; however, this is also not documented in the record. Mueller's special warranty deed shows no encumbrances. Thus, based upon the record before us, Mueller brought the appropriate challenge to the sherifrs sale.
«16» Pursuant to CR 60(b):
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(2) For erroneous proceedings against a minor or person of unsound mind, when the condition of such defendant does not appear in the record, nor the error in the proceedings;
(3) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b);
(4) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(5) The judgment is void;
... or
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ment which is absolutely void, not merely erroneous or voidable," State v. Petersen, 16 Wn. App. 77, 79, 553 P.2d 1110 (1976)(citing Bresolin v. Morris, 86 Wn.2d 241, 543 P.2d 325 (1975), opinion supplemented on other grounds, 88 Wn.2d 167, 558 P.2d 1350 (1977); Peyton v. Peyton, 28 Wash. 278, 68 P. 757 (1902)), "and then only on the basis of fraud going to the very jurisdiction of the court." Petersen, 16 Wn. App. at 79 (citing Anderson v. Anderson, 52 Wn.2d 757, 328 P.2d 888 (1958)).
A judgment is void when the court does not have personal or subject matter jurisdiction, or "lacks the inherent power to enter the order involved." Petersen, 16 Wn. App. at 79 (citing Bresolin, 86 Wn.2d at 245; Anderson, 52 Wn.2d at 761)(additional citation omitted). A trial court has no discretion when faced with a void judgment, and must vacate the judgment "whenever the lack of jurisdiction comes to light." Mitchell v. Kitsap County, 59 Wn. App. 177, 180-81, 797 P.2d 516 (1990)(collateral challenge to jurisdiction of pro tem judge granting summary judgment properly raised on appeal)(citing Allied Fidelity Ins.. Co. v. Ruth, 57 Wn. App. 783, 790, 790 P.2d 206 (1990)). As discussed above, since the judgment is void, this collateral attack through the quiet title action was proper.
[10] Miller argues that a challenge attempting to vacate a judgment brought more than one year after the judgment was entered can be brought only if fraud is alleged. Miller is incorrect. A challenge to a void judgment can be brought at any time. In re Leslie, 112 Wn.2d 612, 618-19, 772 P.2d 1013 (1989)(citing John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 370, 83 P.2d 221 (1938)(additional citation omitted); CR 60(b)(5).
(11) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time and for reasons (1), (2) or (3) not more than 1 year after the judgment, order, or proceeding was entered or taken .... A motion under this section (b) does not affect the finality of the judgment or suspend its operation.
(Emphasis ours).
252 MUELLER v. MILLER June 1996
82 Wn. App. 236, 917 P.2d 604
D. Motion to Amend Complaint
[11] Finally, Mueller contends that the trial court improperly denied her motion to amend the complaint because it failed to provide any reason for the denial. Pursuant to CR 15(a), trial courts should freely grant leave to amend "when justice so requires." While the grant or denial of leave to amend is within the trial court's discretion, a denial without an explanation is not an exercise of discretion, but an abuse of discretion. Walla v. Johnson, 50 Wn. App. 879, 882-83, 751 P.2d 334 (1988); Tagliani v. Colwell, 10 Wn. App. 227, 232-34, 517 P.2d 207 (1973).
Here, the trial court gave no reason for denying Mueller's requested amendment. However, it is reasonable to infer that since the trial court had just dismissed the case on Miller's CR 12(b)(6) motion, it reasoned that the amendment to add a claim for lost rental income would be superfluous at that time. Thus, on remand, the trial court must address Mueller's motion to amend the complaint.
E. Cross-Appeal of Denial of CR 11 Sanctions.
Miller cross-appeals the trial court's denial of CR 11 sanctions and seeks fees on appeal, contending that Mueller's action was frivolous. Miller is incorrect. Mueller provided a thorough analysis of the case law applying to enforcement of judgment liens and also provided a basis in case law for bringing her challenge to the validity of the sheriff's sale as a quiet title action. In light of this, Miller's assertion that Mueller's claim is frivolous is incorrect.
F. Companion Appeal
[12] Finally, pursuant to RAP 3.3(b), we have consolidated this appeal with Mueller's related appeal of the trial court's denial of her motion to intervene to challenge the validity of the sheriff's sale, Cause No. 186420-11. The above resolution of this appeal renders Mueller's other appeal moot. See Housing Authority of Ever
Apr. 1996 HARDESTY v. STENCHEVER 253
82 Wn. App. 253, 917 P.2d 577
ett v. Terry, 114 Wn.2d 558, 570, 789 P.2d 745 (1990)(an appellate court will generally not decide moot questions); ef Clearwater v. Skyline Constr. Co., 67 Wn. App. 305, 317, 835 P.2d 257 (1992)(an appellate court need not address an assignment of error rendered moot by its resolution of another part of a case), review denied, 121 Wn.2d 1005 (1993).
We reverse the trial court's dismissal of Mueller's claim and remand for further proceedings. We affirm the trial court's denial of Miller's motion for CR 11 sanctions. We dismiss Cause No. 18642-0-11.
SEINFELD, C.J., and MORGAN, J., concur.