Opinion
No. 52389-9-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-06957-6. Judgment or order under review. Date filed: 04/25/2003. Judge signing: Hon. Jay V White.
Counsel for Appellant(s), Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S, Issaquah, WA 98027-3820.
Scott Michael Missall, Short Cressman Burgess PLLC, 999 3rd Ave Ste 3000, Seattle, WA 98104-4088.
Thane D Somerville, Attorney at Law, 999 3rd Ave Ste 3000, Seattle, WA 98104-4043.
Gary Petersen (Appearing Pro Se), 21841 Pacific Hwy. S. Des Moines, WA 98198.
Counsel for Respondent(s), Furney Citizens for Des Moin (Appearing Pro Se), 27013 Pacific Hwy. S. #179, Des Moines, WA 98189-9250.
A judgment entered without jurisdiction is void. It is undisputed the City of Des Moines (the City) was not served and each time the City appeared in the lawsuit filed by the Citizens of Des Moines (Citizens), it stated it was not served and asserted lack of jurisdiction. We conclude the City did not waive its objection to jurisdiction and did not act in a manner inconsistent with asserting lack of jurisdiction. We vacate judgment and order entered against the City for legal expenses and reverse.
FACTS
The facts are not in dispute. In March 2002, Citizens sued four members of the Des Moines City Council. Citizens alleged the four Councilmembers violated the Open Public Meetings Act. The City refused to provide legal representation in this litigation for the Councilmembers. The Councilmembers retained a lawyer to represent them.
RCW 42.30 et seq.
The Councilmembers then filed a motion to remove themselves from the caption and substitute and name the City as the defendant in Citizens' lawsuit. They argued the City was the proper defendant because Citizens' claims related to actions they took in their official capacity on behalf of the City. On July 1, 2002, the trial court granted the Councilmembers' motion and entered an 'Order Directing Reformation of the Caption.' The court's order required removal of the individually named Councilmembers from the caption and substitution of the City as the defendant.
Clerks Papers (CP) at 12.
On July 3, 2002, the City filed a 'limited appearance for the purpose of seeking reconsideration' of the order directing reformation of the caption 'without waiving' its objection to lack of jurisdiction and insufficiency of process. A week later, the Des Moines City Council, in a three to four vote, decided the City Attorney should withdraw the City's motion for reconsideration. When the City withdrew its motion for reconsideration, it reiterated that it had not been served in Citizens' lawsuit as a defendant or a third-party defendant.
Sub. No. 35 B.
The four Councilmembers voting in favor of withdrawing the motion were the individuals named as defendants in Citizens' lawsuit.
On August 8, 2002, the Councilmembers brought a motion to dismiss Citizens' lawsuit for lack of subject matter jurisdiction. On August 29, the City entered a limited appearance to respond to and join the Councilmembers' motion to dismiss. In its response, the City again stated that it had not been served and was not a party to Citizens' lawsuit:
In the City's second notice of appearance, filed on the same day as its response to the Councilmembers' motion to dismiss, the City again reserved its defense of improper service and lack of jurisdiction.
The City of Des Moines, to the extent that it is a party to this lawsuit, supports the pending motion to dismiss and joins in the moving party's request that this matter be dismissed with prejudice.
To the extent that Des Moines is considered by others to be a party to this lawsuit, Des Moines asserts that it has not been served with the lawsuit as a party defendant, it has not been served with this lawsuit as a third party defendant, and that the City's Notice of Appearance in this matter expressly reserved those and other applicable defenses.
CP at 158-59.
At the September 19, 2002, hearing on the motion to dismiss, the court asked the Councilmembers what authority it had to consider and rule on their motion. The Councilmembers admitted they were no longer 'named parties in this lawsuit,' but asked the court to rule on their motion because they were 'beneficial parties' or 'parties at interest' in the litigation. The court decided it did not have 'authority to proceed' because the case was not 'properly at issue' and did not rule on the motion to dismiss.
RP (9/19/02) at 5, 8.
Citizens had until October 3, 2002 to serve the City.
RP (9/19/02) at 11.
On November 13, 2002, the four Councilmembers requested the City pay $41,787 for the legal fees they incurred in the litigation. The City Attorney advised the City Council that according to the Des Moines City Code (DMMC) 2.24.080(1), the Councilmembers were entitled to partial reimbursement of their legal fees. At the February 13, 2003, City Council meeting, the Councilmembers' motion to authorize payment of their legal fees failed.
The City Attorney recommended reimbursement of $28,805. This amount excluded the fees incurred for the motion to dismiss because the Councilmembers were no longer parties to the suit and those expenses were 'unnecessary to defend the Councilmembers'. CP at 6.
On March 20, 2003, the Councilmembers reinserted their names in the caption of Citizens' lawsuit as defendants and filed a motion for 'Reimbursement of Legal Expenses Pursuant to City of Des Moines Municipal Code 2.24.080.' The Councilmembers asked the court to award $41,787 against the City for the legal fees they incurred in defending against Citizens' lawsuit and $3,038 for bringing their motion for reimbursement.
CP at 135.
The City asked the court to deny the Councilmembers' motion because 'Des Moines has not been served and is not a party to this lawsuit.'
CP at 153. The City did not respond to the merits of the motion and also requested CR 11 sanctions against counsel for the Councilmembers.
In reply, the Councilmembers asserted that because the City had appeared in the lawsuit and joined the motion to dismiss it waived its defense to lack of jurisdiction. The Councilmembers explained that the reason they filed their motion under the existing cause number was to 'simplify and expedite' obtaining reimbursement for their legal fees.
CP at 165.
The Councilmembers further argued:
Even assuming that the City's argument is correct, the Councilmembers would need only to file a new lawsuit against the City for reimbursement of fees and then proceed with this very same motion. There is no judicial economy in doing so, particularly when there is no dispute as to the substance of the motion. CP at 166.
The trial court granted the Councilmembers' request and entered a judgment and order requiring the City to pay $44,825 for the legal fees incurred by the Councilmembers as defendants in Citizens' lawsuit.
The Councilmembers requested oral argument on their motion for reimbursement, but there is no verbatim transcript. It appears the motion was heard without oral argument.
ANALYSIS
The only questions on appeal are whether the City waived its affirmative defense of lack of jurisdiction when it appeared in Citizens' lawsuit and whether the court had jurisdiction to enter the judgment and order requiring the City to pay the Councilmembers' legal fees.
Because the facts are not in dispute, the only questions are those of law, which we review de novo. Wash. Equip. Mfg. Co. v. Concrete Placing Co., Inc. 85 Wn. App. 240, 244, 931 P.2d 170 (1997); Sherman v. State, 128 Wn.2d 164, 183, 905 P.2d 355 (1995). This court also reviews the trial court's interpretation and application of court rules de novo. City of College Place v. Staudenmaier, 110 Wn. App. 841, 845, 43 P.3d 43, rev. denied, 147 Wn.2d 1024 (2002).
The City argues that because it was not served with a complaint in Citizens' lawsuit and continued to assert lack of service and lack of jurisdiction, it did not waive its defense and the judgment entered against it is void. The Councilmembers contend the City waived its lack of jurisdiction defense because although it continued to recite 'the existence of a potential jurisdictional issue' it failed to 'properly raise the jurisdictional issue in an answer or CR 12 motion and then present the issue to the Court for an immediate ruling.'
The Councilmembers are no longer parties in this case, but are the beneficiaries of the judgment below, are adverse to the City's position on appeal, and have filed the respondents' brief.
Resp. Br. at 10.
A judgment is void when the court lacks jurisdiction over the parties or the subject matter or lacks the inherent power to enter the order. 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)). Service of process is a prerequisite to obtaining jurisdiction. Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 324, 877 P.2d 724 (1994). When a court lacks in personam jurisdiction over a party, judgment entered against that party is void. Marley v. Dep't of Labor Indus., 125 Wn.2d 533, 541, 886 P.2d 189 (1994); Mid-City Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wn. App. 480, 486, 674 P.2d 1271 (1984). Actions against municipalities require strict compliance with the statutory requirements for service of process. Meadowdale Neighborhood Committee v. Edmonds, 27 Wn. App. 261, 267, 616 P.2d 1257 (1980) (service of process on the mayor's secretary was insufficient to confer jurisdiction because the statute requires service upon the mayor).
When a motion to dismiss under CR 12 is made, all defenses then available to the moving party must be joined in the motion. CR 12(g). The defenses of lack of personal jurisdiction and insufficient service of process are waived if omitted from a CR 12 motion or responsive pleading. CR 12(h)(1)(B); Violante v. White, 26 Wn. App. 391, 392, 612 P.2d 828 (1980). The defense of lack of jurisdiction may also be waived under the common law doctrine of waiver if the assertion of the defense is inconsistent with the party's previous conduct. Lybbert v. Grant County, 141 Wn.2d 29, 38, 1 P.3d 1124 (2000) (although service was defective, the defendant participated in the litigation and engaged in discovery for nine months before asserting the defense); Butler v. Joy, 116 Wn. App. 291, 298, 65 P.3d 671, rev. denied, 150 Wn.2d 1017 (2003) (although party properly asserted a jurisdictional defense in her answer, she then moved for summary judgment on the merits and engaged in discovery before raising the defense again).
The Councilmembers argue the City waived its objections to lack of jurisdiction by appearing in the lawsuit and failing to properly raise the defense. The Councilmembers rely on the City's joinder in their request to dismiss Citizens' lawsuit to argue that the City waived its lack of jurisdiction defense by failing to request immediate dismissal. They contend that when the City joined in their 12(b) motion to dismiss, it omitted, and therefore waived, the defense of lack of jurisdiction. Assuming the City's joinder in the Councilmembers' 12(b) motion to dismiss required the City to include its lack of jurisdiction defense, the City did so. In the 'City of Des Moines' Response to Motion to Dismiss Case for Lack of Subject Matter Jurisdiction,' the City 'join[ed] in the moving party's request that this case be dismissed' but explicitly reiterated that it had not been served with a complaint and 'expressly reserved' its defense of lack of jurisdiction. The Councilmembers cite no authority to support their contention that the City waived its defense by failing to request immediate dismissal.
It is undisputed that the City never filed an answer and did not file its own CR 12(b) motion from which the defense was omitted.
We do not consider arguments unsupported by legal authority. See RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
The Councilmembers also rely on Lybbert and Butler to argue that the City waived its lack of jurisdiction defense under the common law doctrine of waiver. In Lybbert and Butler, the party's conduct was inconsistent with asserting the defense of insufficient service of process and resulted in waiver of the defense. In Lybbert, the County's notice of appearance reserved objections to service of process and jurisdiction. The County engaged in several months of discovery and failed to provide a timely response to the plaintiff's interrogatory that asked if the County intended to challenge service of process. The Court concluded: 'it is readily apparent that the County acted in a way that was inconsistent with its eventual assertion of the defense of insufficient service of process.' Lybbert, 141, Wn.2d at 35.
In Butler, approximately three weeks after being served with a complaint, the defendant filed a summary judgment motion asserting there was no negligence and the claim should be dismissed. The defendant later agreed to strike the motion so the parties could engage in discovery. After depositions were taken and the 90-day rule for perfecting service had expired, the defendant answered the complaint and for the first time asserted the defense of insufficient service of process. The court concluded that the defendant 'conducted herself in a manner inconsistent with her later assertion of the defense of insufficient service of process' and therefore waived the defense. Butler, 116 Wn. App. at 298. Unlike the defendants in Lybbert and Butler, the City took no action that was inconsistent with its assertion of the defense of insufficiency of service of process and lack of jurisdiction. The City filed two limited notices of appearance. The first was for the purpose of seeking reconsideration of the order reforming the caption. The second was to file a response and join the Councilmembers' motion to dismiss Citizens' lawsuit. Both notices expressly stated that the City's appearance was limited and the City did not waive its objections to improper service of process and lack of jurisdiction. The City repeatedly and consistently asserted it had not been served and was not a party to Citizens' lawsuit. We conclude the City did not waive its jurisdiction defenses when it joined in the request to dismiss Citizens' lawsuit and the common law doctrine of waiver did not preclude the City from asserting its defense of insufficient of service of process and lack of jurisdiction.
The Councilmembers also cite Raymond v. Fleming, 24 Wn. App. 112, 600 P.2d 614 (1979), and Kulhlman v. Tammermatic, Inc., 29 Wn. App. 419, 628 P.2d 851 (1981). The facts of both cases are dissimilar to the facts here. In Raymond, the court found that repeated requests for more time, lack of response to discovery and obtaining orders of continuance were inconsistent with the later assertion of the defense. In Kuhlman, although the defendant asserted the defense of improper service in its answer, it also asserted a cross claim and a counterclaim for affirmative relief.
CONCLUSION
The trial court did not have jurisdiction to enter the judgment and order against the City in this lawsuit and the judgment and order entered is void. We reverse and remand with directions to vacate the judgment and order entered against the City for reimbursement for the Councilmembers' legal expenses.
Because we reverse the judgment and order below, the Councilmembers are not entitled to fees on appeal.
GROSSE and AGID, JJ., Concur.