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  IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

AMBER D. FOWLER, M.D., an                   )
Individual,                                 )       No. 65207-9-I
                                            )
                      Appellant,            )
                                            )       DIVISION ONE
       v.                                   )
                                            ) 
DONALD RUSSELL JOHNSON, M.D.,               )
and JANE DOE JOHNSON, husband               )
and wife and the marital community          )       PUBLISHED OPINION
comprised thereof, and ISLAND               )
COUNTY DERMATOLOGY, PLLC,                   )
a Washington professional limited                   )
liability corporation, d/b/a FIDALGO        )
DERMATOLOGY,                                )
                                            ) 
                      Respondents.          )       FILED:  April 9, 2012

       Spearman, J.  --  This appeal arises from a wage dispute between two 

dermatologists, Amber Fowler and her former employer Donald Johnson. Fowler 

filed a lawsuit against Johnson alleging four claims. One of her claims was for 

unpaid wages for which she sought double damages. When Johnson did not

answer, Fowler obtained an order of default. At a subsequent hearing Fowler was 

awarded damages in an amount that included double damages for unpaid wages. 

The award was later reduced to a default judgment. Johnson became aware of the  

No. 65207-9-I/2

lawsuit after receiving a writ of garnishment. He filed a motion to vacate the order of 

default and the corresponding default judgment (default orders), which the trial court 

initially denied. On reconsideration, the court found the default orders on the claim 

for unpaid wages and double damages should be vacated. But because the court 

concluded it lacked the authority to vacate the default orders on only one claim, it

also vacated the default orders on the remaining three claims. Fowler appeals, 

arguing that the court erred in concluding it lacked authority to vacate the default 

orders only as to one claim. We agree and hold that the court abused its discretion 

because its decision was based on an incorrect standard of law. We reverse and 

remand. 

                                          FACTS

       Johnson is a dermatologist and the owner of Island County Dermatology 

(ICD), which operates clinics and medical spas. Johnson hired Fowler to work at 

ICD as a dermatologist around August 2006. Fowler agreed to a compensation 

formula under which she would receive two types of compensation: (1) wages based 

on a percentage of her receivables and (2) spa referral fees. In November 2008, 

Fowler decided to leave ICD to open her own practice and notified Johnson. They 

discussed her financial status and Fowler received written confirmation of their prior 

agreement. 

       When Fowler left ICD in December 2008, she believed Johnson owed her 

$209,259 in unpaid wages. When payments were not forthcoming, Fowler retained 

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No. 65207-9-I/3

counsel, Amy Robinson. In January and February 2009, Robinson sent several 

demand letters to Johnson. Johnson sent Fowler three checks for wages in the 

amounts of $28,183.99, $17,077.21, and $12,991.65. All three were rejected due to 

insufficient funds. Johnson subsequently wrote valid checks totaling $45,261.20, 

leaving what Fowler believed to be $163,997.80 in unpaid wages. As for spa referral 

fees, Fowler agreed to accept three monthly installments of $8,666. Johnson paid

the first two installments but not the third. 

       In March 2009, Robinson learned that Johnson had hired attorney Christon 

Skinner, to represent him regarding Fowler's complaints. Robinson contacted 

Skinner and forwarded the prior communications with Johnson. Skinner asked 

Robinson to direct any further correspondence about Fowler's compensation 

complaints to him. Skinner and Robinson communicated several times from March 

to April 2009. The record is unclear as to the date of their last correspondence.

       On June 3, 2009, Fowler filed suit against Johnson and ICD, alleging:

       (1)  Breach of contract (wages);
       (2)  Breach of contract (spa referral fees);
       (3)  Violation of RCW 49.48.010 and RCW 49.52.070 (unpaid 
            wages, damages to be doubled pursuant to RCW 49.52.070);1
       (4)  Violation of the uniform commercial code (UCC), RCW 62A.3-
            501 et seq. (dishonored checks).

The claims were based on the allegation that Johnson had not paid wages and 

referral fees owed to Fowler. A process server delivered copies of the summons and 

1 RCW 49.52.070 is the "enforcement provision of RCW 49.52.050" and "states that any employer 
who violates RCW 49.52.050 shall be liable to the aggrieved employee in a civil action for twice the 
wages it unlawfully and willfully withheld." Dice v. City of Montesano, 131 Wn. App. 675, 687, 128 
P.3d 1253 (2006). 

                                           3 

No. 65207-9-I/4

complaint to Johnson personally on June 9. Skinner was not served with copies of 

the summons and complaint. Johnson did not open the documents when he 

received them. 

       Johnson did not answer the complaint within 20 days as required by CR 

4(a)(2). On July 1, Robinson's co-counsel Ken Karlberg called Skinner, who was out 

of town, and left a message. Skinner did not call back. On July 15, Fowler moved for 

entry of default, noting the motion for July 24, 2009. Robinson mailed copies of the 

pleadings to Johnson by certified mail. Johnson still did not file an answer or 

respond to the motion for default. He claimed he did not receive the motion.

Johnson did not appear at the hearing on July 24, and the trial court entered an 

order of default.

       On August 7, 2009, the trial court held an evidentiary hearing on Fowler's 

alleged damages. It entered findings of fact and conclusions of law, which were 

subsequently amended. The court found that Johnson owed Fowler $163,997.80 in 

wages and $8,666 in spa referral fees. The court further found that the unpaid 

wages constituted wrongfully withheld wages that could support an award of double 

damages and attorney's fees under RCW 49.52.050(2) and RCW 49.52.070. On 

August 28, the court entered a total amended default judgment in the amount of 

$363,535.07, which Fowler recorded in Island County. 

       Johnson and Skinner became aware of the default orders when they received 

a writ of garnishment on September 25, 2009. Skinner entered a formal appearance 

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No. 65207-9-I/5

on September 28 and filed a motion to vacate the default orders on October 2. In 

the motion to vacate, based on CR 55(c) and CR 60(b), Johnson argued mistake, 

inadvertence, surprise or excusable neglect based on his belief that (1) 

communications between Robinson and Skinner had resolved the dispute; (2) the 

summons and complaint that he had been served was of a similar nature to the 

informal negotiation documents that he had previously received by service; and (3) 

his counsel had been served with the documents and was handling the case. 

Johnson also claimed he had been preoccupied with his wife's medical condition. In 

addition, Johnson asserted a defense to Fowler's claims: "Specifically, the amounts 

claimed by the Plaintiff are in excess of what the parties agreed to and are not 

based on an accurate or actual accounting of patient revenue attributed to services 
provided by the Plaintiff to the Defendant, Island County Dermatology, PLLC."2

Johnson also disputed Fowler's claim for double damages, arguing, "[T]he only way 

that the [double damages] penalty is lawfully imposed against an employer is if an 
employee can show a criminal violation of RCW 49.52.050(1) or (2)."3

2 The evidence to support Johnson's defense was contained in his declaration in support of the 
motion to vacate the order of default and default judgment. Johnson stated, "I sincerely believed that 
the check issue had been resolved and was not aware of the fact that it was still being dishonored. 
Additionally, the amounts claimed by the Plaintiff are in excess of what we agreed to and are not 
based on an accurate or actual accounting of patient revenue attributed to services provided by the 
Plaintiff to the Defendant, Island County Dermatology, PLLC." In support of his reply, Johnson 
declared that, in his opinion, his financial records showed Fowler had been paid in full or even 
overpaid due to errors made by the previous bookkeeper.

3 RCW 49.52.050 states:

       Any employer or officer, vice principal or agent of any employer, whether said 
       employer be in private business or an elected public official, who
          (1) Shall collect or receive from any employee a rebate of any part of wages 
       theretofore paid by such employer to such employee; or
          (2) Wilfully and with intent to deprive the employee of any part of his or her 
       wages, shall pay any employee a lower wage than the wage such employer is 

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No. 65207-9-I/6

       The trial court denied Johnson's motion to vacate, entering written findings of 

fact and conclusions of law. The trial court concluded, in pertinent part:

       5. The four part test enumerated in the case of White v. Holm, 73 
       Wn.2d 348, 352, 438 P.2d 581 (1968)4 is the proper test to apply to 
       determine if defendants' motion should be granted or denied.

       6. There is substantial evidence to support a defense to all or part of 
       the sums claimed by the plaintiff and awarded in the default judgment.

       7. An issue before the court was whether the defendants' failure to 
       timely appear and answer was the result of 'mistake, inadvertence,
       surprise or excusable neglect.'

       8. None of the explanations/circumstances presented by the 
       defendants rise to the accepted level of mistake, inadvertence, 
       surprise or excusable neglect.

       9. There are no special circumstances in the present case warranting 
       a finding that substantial hardship would be imposed upon the plaintiff 
       if the judgment were to be vacated.

       obligated to pay such employee by any statute, ordinance, or contract; ...
       . . .
Shall be guilty of a misdemeanor.

4 Under White, a trial court deciding whether to exercise its discretion to set aside a default judgment 
under CR 60(b) must consider four factors:

       (1) That there is substantial evidence extant to support, at least prima facie, a 
       defense to the claim asserted by the opposing party;
       (2) That the moving party's failure to timely appear in the action, and answer the 
       opponent's claim, was occasioned by mistake, inadvertence, surprise or excusable 
       neglect;
       (3) That the moving party acted with due diligence after notice of entry of the default 
       judgment; and
       (4) That no substantial hardship will result to the opposing party.

White, 73 Wn.2d at 352. If the defaulting party "demonstrate[s] a strong or virtually conclusive 
defense to the opponent's claim, scant time will be spent inquiring into the reasons which occasioned 
entry of the default," so long as the motion is timely and the failure to appear was not willful. Id. 
Furthermore, if only a prima facie defense is shown, the remaining factors will be more heavily
scrutinized. Id. at 352-53. When analyzing the existence of a prima facie defense, a court must "view 
the facts proffered in the light most favorable to the defendant, assuming the truth of that evidence 
favorable to the defendant, and disregarding inconsistent or unfavorable evidence." Bear Creek, 140 
Wn. App. at 203. 

                                           6 

No. 65207-9-I/7

       10. There is no evidence that plaintiff did something that would render 
       enforcing the judgment inequitable, i.e. that the plaintiff was purposely 
       deceptive or manipulative rising to the level preventing the defendants'
       full participation. No such deceptive or manipulative conduct occurred 
       in this case.

       11. Defendants' Motion to Vacate the Order of Default and Judgment 
       should be denied because of the Defendants' failure to demonstrate a 
       basis to vacate the default judgment under CR 60(b)(1).

       Johnson moved for reconsideration, arguing that "since the Defendants 

demonstrated facts supporting a strong or virtually conclusive defense to the 

Plaintiff's claim for unpaid wages, the court incorrectly emphasized, as its first line 

of inquiry, the circumstances and reasons given by the Defendants for failing to 

answer the complaint in a timely manner." Johnson pointed out that the court's letter 

ruling indicated that he had met three out of four factors in White.

       The trial court reconsidered its decision, explaining in a May 18, 2010 letter 
ruling:5

       I have been trying to determine if the Default Order is an all or nothing 
       entity or if the individual issues contained therein can be dealt with 
       separately.

       Five causes of action were pled in the Amended Complaint filed by 
       Plaintiff on July 7, 2009.6 Various degrees of defenses were set forth 

5 The trial court held a hearing for presentment of an order on the motion for reconsideration on July 
7, 2010. During that hearing, the court stated:

       The Court issued a letter of ruling on reconsideration overturning I suppose my 
       earlier decision. Not so much overturning 3/4's of it but because I believe after 
       reviewing the case law that summary judgment is either all or nothing. I therefore 
       overturn the entire prior ruling based on one portion of the complaint in this case.

6 The trial court mistakenly referred to the amended complaint Fowler filed on July 7, 2009, which 
added a claim for tortious interference with business expectancy.  Because Johnson was never 
served with the amended complaint, the default judgment was entered on the original complaint.

                                           7 

No. 65207-9-I/8

       in the Motion to Vacate Default to these claims. This Court finds that 
       Defendant(s) demonstrated a strong or virtually conclusive defense to 
       the third cause of action. Specifically, as it relates to the willful and 
       intentional requirements of RCW 49.52.050.

       The remaining four causes of action remain subject to the four prong 
       analysis resulting in the previous ruling denying the Motion to Vacate 
       Default and Default Judgment.

       I can find no authority allowing vacation of the default on one cause of 
       action and maintaining it on the other four. The complaint and ensuing 
       default must be decided on an all or nothing basis.

       Therefore, since the Defendant is entitled to vacation of the default on 
       the third cause of action, the Motion for Reconsideration is granted. 
       The Motion to Vacate Default and Default Judgment is granted. 

       The court entered a written order on July 7, 2010, incorporating its May 18 

letter ruling and making the specific finding that "there is no evidence in the record 

to establish that the defendant acted wilfully & intentionally as required by RCW 

49.52.050." The court entered a separate order granting Johnson's motion to vacate 

the default orders. Fowler moved for reconsideration, which the court denied. 
Fowler appeals.7

                                      DISCUSSION

       The only issue before us is whether the trial court erroneously concluded that 

it did not have authority to vacate the default orders on one of the claims in Fowler's 

7 Fowler appeals from the order denying defendants' motion to vacate default and default judgment 
entered February 26, 2010; order granting defendants' motion for reconsideration re: motion for order 
to vacate default entered July 7, 2010; and letter ruling denying plaintiff's motion to reconsider 
entered August 20, 2010. She requests this court to reverse the trial court's order vacating entry of 
default and default judgment; remand for entry of judgment on all claims except the double damages 
claim; and order trial on the claim for double damages. We note that Johnson did not appeal the trial 
court's determination that he had made an insufficient showing under White to warrant vacating the 
default orders on the remaining claims.

                                           8 

No. 65207-9-I/9

complaint while maintaining the default orders as to the remaining claims. We hold 

that the trial court had such authority and, because the record indicates the court 

was inclined to do so, reverse and remand.

                                   Authority to Vacate

       We review a trial court's ruling on a motion to vacate a default judgment for 

abuse of discretion. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 

1289 (1979). A trial court abuses its discretion only when its decision is manifestly 

unreasonable, based on untenable grounds, or made for untenable reasons. TMT 

Bear Creek Shopping Center, Inc. v. Petco Animal Supplies, Inc., 140 Wn. App. 

191, 199, 165 P.3d 1271 (2007) (citations and quotation omitted). A court's decision 

is manifestly unreasonable if it is outside the range of acceptable choices, given the 

facts and the applicable legal standard; it is based on untenable grounds if the 

factual findings are unsupported by the record; it is based on untenable reasons if it 

is based on an incorrect standard or the facts do not meet the requirements of the 

correct standard. In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 

(1997).

       Fowler argues that the trial court abused its discretion because the court

relied on an incorrect legal standard to conclude that it lacked authority to vacate 

default orders on only one claim in a multi-claim lawsuit. Fowler asserts that when a 

defaulting party demonstrates a strong defense on one claim but the defense is 

inapplicable to any remaining claims, a court may properly vacate the default orders 

                                           9 

No. 65207-9-I/10

on that one claim, while leaving the default orders on the other claim intact. In 

support of her argument Fowler relies on Calhoun v. Merritt, 46 Wn. App. 616, 731 

P.2d 1094 (1987) and Shepard Ambulance, Inc. v. Helsell Fetterman, et al., 95 Wn. 

App. 231, 974 P.2d 1275 (1999). Fowler also contends that because CR 55 and CR 

60 allow trial courts to vacate default orders upon such terms as the court deems 

"just," the trial court has broad discretion to vacate its default order with respect to 

particular claims. Finally, Fowler argues that the trial court's broad equitable powers

allow it to fashion appropriate relief, including vacating default orders on some but 

not all claims.

       Johnson argues that regardless of the breadth of the trial court's authority, it 

reached the correct result because the default orders on all of Fowler's claims 

should have been vacated under White. He asserts he had a strong defense to all

of the claims and that his reasonable belief that his attorney was handling the suit 

established mistake and excusable neglect. 

       Although no authority expressly addressing this issue has been cited to us, 

nor could we find any, we hold that the trial court had the authority to vacate its 

default orders on only one claim. A motion to vacate default orders under CR 55 

and CR 60 is addressed to the sound discretion of the court and is equitable in 

nature. White, 73 Wn.2d at 351. The court rules explicitly permit default orders to 

be vacated on such terms as are just. In making this determination, the most 

important factors are whether the defaulting party has demonstrated at least a prima 

                                           10 

No. 65207-9-I/11

facie defense to the claim asserted by the opposing party and whether the 

defaulting party's failure to answer was occasioned by mistake, inadvertence, 

surprise or excusable neglect. Id.at 352. When a defaulting party meets this burden 

as to one claim, but not another, it is within the trial court's discretion to grant the 
motion to vacate on the former and deny it on the latter.8

       Furthermore, although not directly on point, Shepard and Calhoun support 

the conclusion that a trial court may rule on a motion to vacate default orders by 

addressing the circumstances of each particular claim. In Shepard, we held that a 

trial court has "discretion to vacate the damages portion of a default judgment even 

where no meritorious defense [to liability] is established." Shepard, 95 Wn. App. at 

241. That case involved a legal malpractice case-within-a-case based on the 

defendant law firm's failure to file a timely motion to vacate a default judgment. We

stated that the standard for when to vacate damages awards from default judgments 

is the same as the standard for setting aside awards of damages from trials. Id. at 

241-42. "Thus, the default award here could be vacated if there were not substantial 

evidence to support the award of damages." Id. at 242. Applying that standard to 

Helsell's hypothetical motion, we concluded it would have led to vacating the default 

damages award. Id.

       Similarly, in Calhoun, we upheld the trial court's denial of a motion to vacate 

8 Johnson does not appear to dispute the trial court's authority to vacate the default orders on only 
one claim. He argues only that the trial court reached the correct result and that we should affirm the 
trial court on this ground.

                                           11 

No. 65207-9-I/12

a default as to liability but reversed denial as to the amount of damages. There, 

Calhoun filed a negligence action against Merritt for injuries caused in a car 

accident. Merritt failed to answer and the court entered an order of default. Calhoun, 

46 Wn. App. at 617-18. The court held a hearing on damages and entered 

judgment. Merritt then appeared and moved to vacate the default judgment. He 

argued that he did not understand the importance of the documents and believed 

the adjuster for his insurance company was handling the matter. The adjuster stated 

he had not been aware of the default until after receiving a copy. He further stated 

that during his investigation of Calhoun's claim, he received facts indicating that the 

claim was worth far less than the judgment entered. Merritt asserted no defenses as 

to his liability for the accident. Id. at 619-20. The trial court denied Merritt's motion 

to set aside the default judgment. 

       On appeal, we reversed only the portion of the order relating to damages. 

We upheld the default judgment on liability because Merritt asserted no defenses,

but applied the White factors and held that the trial court erred in refusing to vacate 

the damage portion. We concluded the excuse, diligence, and prejudice factors 

were met and, as for the defense factor, noted that a prima facie defense as to 

damages was sufficient under those facts because development of a defense would 

require discovery. Calhoun, 46 Wn. App. at 620-22. 

       In light of the applicability of equitable principles and the court's broad 

authority under CR 55 and CR 60, we conclude that a court may consider the merits 

                                           12 

No. 65207-9-I/13

of each particular claim when deciding a motion to vacate default orders.  This 

conclusion is also consistent with the rationale underlying our decisions in Shepard

and Calhoun.  The trial court's decision in this case to vacate the default orders on 

all of Fowler's claims was an abuse of discretion because it was based on the 

erroneous conclusion that the trial court lacked authority to consider each claim on 

its own merits.  Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).  

We therefore reverse the trial court and remand for further proceedings consistent 

with this opinion.

                                Attorney Fees on Appeal

       Fowler requests attorney fees on appeal under RCW 62A.3-515(a), which 

provides:

       [I]n the event of court action on the [dishonored] check, the court, after 
       notice and the expiration of the fifteen days, shall award reasonable 
       attorneys' fees, and three times the face amount of the check or three 
       hundred dollars, whichever is less, as part of the damages payable to 
       the person enforcing the check.

She contends that should the default judgment be reinstated on her fourth cause of 

action, she becomes the prevailing party and entitled to fees, citing Northwest 

Motors, Ltd. v. James, 57 Wn. App. 364, 374, 788 P.2d 584 (1990). Because we 

remand this matter to the trial court, the request is denied. 

       Reversed and remanded.

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No. 65207-9-I/14

WE CONCUR:

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