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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

VALERIE I. KTENAS, an individual,                                No.  41186-5-II

                             Respondent,

       v.

ROBERT TURK and DONNA TURK,                                UNPUBLISHED OPINION
husband and wife,

                             Appellants.

       Quinn-Brintnall, J.   --    In this easement dispute, Robert Turk appeals the trial court's 

order denying his CR 60(b) motion to vacate judgment in favor of his neighbor, Valerie I. Ktenas.  

In addition, Turk assigns error to the trial court's (1) denial of his motion for continuance, (2) 

failure to rule on his counterclaim and affirmative defenses, (3) granting an anti-harassment order, 

and (4) entering findings of fact and conclusions of law the evidence does not support.  We hold 

that Turk has failed to timely appeal the trial court's final judgment and order and affirm the trial 

court's denial of his CR 60(b) motion.

                                            FACTS

       In 1957, Turk and Ktenas's predecessors-in-interest recorded a driveway easement with 

the Pierce County Auditor.  The neighbors created a 15-foot driveway by each granting the other  

No. 41186-5-II

a 7 1/2-foot perpetual easement.  Ktenas purchased her home in 1991; Turk purchased his home 

in 1995.  It appears a portion of Ktenas's carport roof encroached on the driveway easement.  In 

2000, Turk granted Ktenas permission for the encroachment to avoid the unnecessary expense to 

correct it.  

       A March 31, 2000 letter from an attorney who was representing Turk at the time notified 

Ktenas that Turk would be paving the driveway easement area and erecting "a fence between the 

properties on [her] north boundary line."   Clerk's Papers at 155.  On May 1, 2002, Turk 

rescinded his permission for Ktenas's encroachment.  Turk requested that Ktenas not park in the 

driveway easement, remove a container that blocked a portion of the easement, and remove the 

offending portion of the carport roof.  Ktenas had her property surveyed in May 2002, which 

confirmed that a small portion of her carport roof intruded into the easement.  

       It appears the conflict between the neighbors escalated after the 2002 property survey.  At 

some point, Turk erected a six-foot fence in the middle of the driveway easement without 

Ktenas's permission.  The fence effectively blocked Ktenas's use of the driveway to reach her side 

and back yards.  Ktenas requested and the trial court issued temporary anti-harassment orders 

against Turk in 2002 and 2008.  

       On December 10, 2008, Ktenas filed a complaint for removal of easement obstruction, 

outrage,1 and for an order of protection against Turk.  Turk answered, asserting several 

affirmative defenses and filed a counterclaim to quiet title or for ejectment and for an order 

requiring Ktenas to remove obstructions from the easement area.  On December 17, 2009, Turk 

1 On July 22, 2009, Turk moved for partial summary judgment to dismiss the claim of outrage.  
On August 10, the parties stipulated to dismiss Ktenas's claim for outrage with prejudice.  

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No. 41186-5-II

appeared pro se at trial to request a continuance to hold a settlement conference and to obtain 

counsel.  The trial court found that due to a mailing error, Turk was unaware that his counsel had 

withdrawn representation and granted the motion.  The trial court declined to hear Ktenas's 

motion for an order requiring Turk to remove the fence.  The trial court continued trial to May 

12, 2010.  

       On May 12, Turk again appeared pro se and moved for a continuance to retain counsel.  

Turk explained that he had hired an attorney but that the attorney could not represent Turk on 

that particular day due to a scheduling conflict.  The trial court noted that the new attorney had 

not filed a notice of appearance and that Turk had five months to retain counsel.  The trial court 

then gave Turk two options:  first, Turk could go to administration2 to trail for a 3-day period 

until a courtroom became available, or second, the trial court would grant Turk a 12-day 

continuance until May 24.  Turk left the decision to the trial court.  The trial court denied Turk's 

motion and sent the case to administration.  

       The case proceeded to bench trial later the same day.  The trial court reminded Turk that 

he would represent himself because his attorney had not yet filed a notice of appearance.  Turk 

stated that he understood.  Ktenas and her mother testified; Turk declined cross-examination.  

Turk also declined to testify, did not object to the admission of any evidence or testimony, and did 

not make a closing argument.  Following a short recess, the trial court orally ruled in Ktenas's 

favor.  On May 21, the trial court entered written judgment, findings of fact, and conclusions of 

2 Under the Pierce County Superior Court Local Rules, if no judicial department is available to 
hear a scheduled matter, the court may transfer that case to the court administrator to be placed in 
queue for the next available courtroom.  PCLR 40(e)(1), (2).  While awaiting reassignment, 
litigants and their witnesses must remain available unless excused by the court administrator.  
PCLR 40(e)(3).

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No. 41186-5-II

law, finding that Ktenas was entitled to have the fence removed as an impediment to her use of 

the easement.  The trial court ordered Turk to remove the fence within 30 days of the judgment 

(or face a $50-per-day fine) and entered a third anti-harassment order.  

       Turk's new counsel filed a notice of appearance on May 18.  On June 30, Turk moved to 

vacate judgment pursuant to CR 60(b) and for attorney fees.  On July 27, the trial court ordered 

the parties to appear for a hearing to show cause why Turk's motion should be denied.  Following 

a hearing held on August 20, the trial court denied Turk's motion and awarded attorney fees to 

Ktenas.  Turk appeals.

                                         DISCUSSION

       Turk assigns error to the trial court's (1) denial of his motion for continuance, (2) failure

to rule on his counterclaim and affirmative defenses, (3) denial of his motion to vacate judgment 

pursuant to CR 60(b), (4) granting the anti-harassment order, and (5) entering findings of fact and 

conclusions of law the evidence does not support.  We affirm.

Timeliness of Appeal

       The trial court orally ruled in Ktenas's favor on May 12, 2010, and entered written 

findings of fact, conclusions of law, and judgment on May 21.  Thus, for this appeal to be timely, 

Turk must have filed a notice of appeal of the trial court's final judgment and order by June 20.  

Despite Turk's attorney filing a notice of appearance on May 18, Turk did not file a notice of 

appeal until September 14.  

       Turk does not argue that there were any  "unique circumstances"             justifying his 

noncompliance with the jurisdictional requirements permitting his appeal of the final judgment and 

order.  See Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wn.2d 366, 371, 849 P.2d 

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No. 41186-5-II

1225 (1993) (Justice Guy, dissenting) (the doctrine of unique circumstances permits an appeal 

"'despite noncompliance with jurisdictional requirements if the appellant relied upon judicial 

action and, in so relying, forfeited the right to appeal'" (quoting Fiester v. Turner, 783 F.2d 1474, 

1476 (9th Cir. 1986))).  Rather, Turk requests that we exercise our discretion under RAP 2.5(a) 

to review issues raised for the first time on appeal.  Specifically, Turk argues that because the trial 

court erred in denying his motion for continuance to retain counsel, we should review the other 

issues he raises on appeal.3 However, Turk does not support with legal authority his apparent 

contention that RAP 2.5(a) preserves issues for appeal when an appellant fails to timely appeal a 

trial court's final judgment and order.  RAP 10.3(a)(6).  Accordingly, we hold that Turk has failed 

to timely appeal the trial court's final judgment and order and we address the merits of his 

arguments with respect to the trial court's denial of his CR 60(b) motion to vacate judgment only.  

RAP 5.2(b).

CR 60(b)(4) Motion to Vacate Judgment4

       Turk avers that Ktenas made several material misrepresentations at trial causing the trial 

court to erroneously deny his motion to vacate judgment.  Specifically, Turk argues that Ktenas 

3 Although we do not reach the merits of Turk's arguments as to the trial court's denial of his 
second motion to continue, we note that Turk's assertion at oral argument that the trial court had 
a sua sponte duty to continue trial when it became apparent that he was unprepared to represent 
himself at trial is meritless.  A pro se litigant is held to the same standard as an attorney, including 
knowledge of procedure and substantive law.   Batten v. Abrams, 28 Wn. App. 737, 739 n.1, 626 
P.2d 984, review denied, 95 Wn.2d 1033 (1981).  Turk did not offer legal authority to support his 
contention and we assume he has none.  Moreover, the record shows that Turk declined the trial 
court's offer to grant him a 12-day continuance.  Because Turk's attorney filed a notice of 
appearance on May 18, if Turk had accepted the 12-day continuance, he would have had 
representation at trial.

4 Turk limits the scope of the trial court's alleged error to CR 60(b)(4); he does not argue on 
appeal that the trial court erred under any other subsection of CR 60(b).  
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No. 41186-5-II

gave false testimony that she had never impeded the driveway easement.  Thus, Turk argues that 

Ktenas's allegedly false testimony amounted to a misrepresentation entitling him to vacation of 

judgment.

       CR 60(b)(4) provides that the trial court may relieve a party from final judgment or order 

for fraud, misrepresentation, or other misconduct by an adverse party.  Such fraud or 

misrepresentation must have prevented the moving party from a full and fair presentation of his 

case.  Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990), review denied, 116 

Wn.2d 1009 (1991); N. Pac. Plywood, Inc. v. Access Rd. Builders, Inc., 29 Wn. App. 228, 232, 

628 P.2d 482, review denied, 96 Wn.2d 1002 (1981).  We review a denial of a CR 60(b)(4) 

motion to vacate a judgment for an abuse of discretion.  Matter of Guardianship of Adamec, 100 

Wn.2d 166, 178, 667 P.2d 1085 (1983).  We will not disturb a trial court's decision on a CR 

60(b) motion unless the court exercised its discretion on untenable grounds or for untenable 

reasons or unless the discretionary act was manifestly unreasonable.  Lindgren, 58 Wn. App. at 

595.  An appeal from a CR 60(b) motion is limited to the propriety of the denial and not the 

impropriety of the underlying judgment.  Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 

P.2d 533 (1980).

       As an initial matter, we note that although the trial court held a hearing on Turk's motion 

to vacate judgment on August 20, 2010, Turk has not included a transcript of that hearing in the 

record for our review.  RAP 9.2(b).  The record contains only a trial transcript and shows that 

Turk declined to cross-examine the only two witnesses at trial:  Ktenas and her mother.  Turk did 

not object to any of Ktenas's testimony or evidence admitted at trial and did not present any 

evidence rebutting Ktenas's testimony.  Turk also declined to present a case after Ktenas rested 

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No. 41186-5-II

and to give closing argument.  Thus, the record Turk presents for our review does not support his 

claim that Ktenas's allegedly false testimony denied him an opportunity for full and fair 

presentation of his case.  Lindgren, 58 Wn. App. at 596.  Rather, the record shows that Turk 

repeatedly declined to present or argue his case.  

       Pro se litigants are bound by the same rules of procedure and substantive law as attorneys.  

Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997) (citing 

Patterson v. Superintendent of Pub. Instruction, 76 Wn. App. 666, 671, 887 P.2d 411 (1994), 

review denied, 126 Wn.2d 1018 (1995)).  And, in the absence of rebutting evidence or a 

reviewable objection made to Ktenas's testimony at trial, we defer to the trial court for a 

credibility determination of her testimony.  Mitchell v. Wash. State Institute of Pub. Policy, 153 

Wn. App. 803, 814, 225 P.3d 280 (2009), review denied, 169 Wn.2d 1012 (2010).  Accordingly, 

because Ktenas's allegedly false testimony did not deny Turk a full and fair opportunity to present 

his case at bench trial, we hold that the trial court did not abuse its discretion in denying Turk's 

CR 60(b) motion to vacate judgment and affirm.  Lindgren, 58 Wn. App. at 596.  

Counterclaims and Affirmative Defenses

       Turk asserts that the trial court erred in failing to rule on his counterclaim and affirmative 

defenses.  As we indicate above, because Turk failed to timely file a notice of appeal of the trial 

court's judgment and order, we address the merits of his arguments as to his CR 60(b)(4) motion 

only.  While the issue of whether a trial court must sua sponte rule on counterclaims and 

affirmative defenses that were pleaded but not argued appears to be novel under these 

circumstances, we hold that the trial court did not err here.  Generally, Turk has the right to have 

his case heard unless he waives his right, abandons his claim, fails to prosecute it diligently, or 

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No. 41186-5-II

disobeys an order of the court.  See Lewis Cnty. Sav. & Loan Ass'n v. Black, 60 Wn.2d 362, 370, 

374 P.2d 157 (1962).  Here, Turk neither argued his theories nor submitted evidence in support 

of his theories at the bench trial.  Thus, although Turk properly pleaded his counterclaim and 

affirmative defenses, because he failed to raise them at bench trial, he abandoned the claims and 

the trial court did not err by not ruling on them.  RAP 2.5(a); see Green v. Normandy Park, 137 

Wn. App. 665, 687, 151 P.3d 1038 (2007) (contention that was pleaded, but not raised in 

opposition to summary judgment, cannot be considered for the first time on appeal),  review 

denied, 163 Wn.2d 1003 (2008).  

       Affirmed.

       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.

                                                 QUINN-BRINTNALL, J.
We concur:

ARMSTRONG, J.

PENOYAR, C.J.

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