Opinion
No. 59323-4-I.
January 14, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-05751-1, Richard A. Jones, J., entered November 27, 2006.
Reversed by unpublished opinion per Appelwick, C.J., concurred in by Grosse and Cox, JJ.
Small claims court originally awarded Sherry Ross $4,000 plus fees for Ruth Fairleigh's breach of a real estate purchase and sale agreement. The superior court heard the cases de novo and denied relief on the basis that Ross had elected equitable remedies. We reinstate the small claims court award.
Facts
In April of 2005, Sherry Ross, as buyer, and Ruth Fairleigh, as seller, executed a purchase and sale agreement to purchase a residential home. Pursuant to that agreement, Ross placed the required earnest money in escrow. The closing date was set for May 13, 2005. The agreement provided for a remedy if buyer defaulted by allowing the seller to retain the earnest money. Their contract included no provision if seller defaulted. The agreement specified that if buyer or seller instigated any suits against each other, the prevailing party was entitled to reasonable attorney fees.
According to Ross and her real estate agent, Fairleigh refused to close the transaction. On June 7, 2005, Ross offered mutual recession, extinguishing all obligations, if Fairleigh agreed to return the earnest money and pay $1,500 in costs and fees expended by Ross. Fairleigh did not respond. In a subsequent letter, Ross' attorney threatened to seek damages for breach of the contract. On June 24, Ross' attorney instructed escrow to refund the earnest money to Ross. Ross received a full refund of her earnest money on July, 1, 2005, in the amount of $2,752.68.
On August 11, 2005, Ross filed an action in small claims court seeking damages pursuant to the agreement. Ross sought $4,000.00 in damages, including $245.00 in home inspection fee, $425.00 in appraisal fee, $370.00 in lost wages, and loss of the benefit of the bargain valued at 3 percent of closing costs. On November 8, 2005, small claims court entered a judgment in favor of Ross in the amount of $4,029.65. The court did not itemize the judgment.
Fairleigh appealed the judgment to superior court on December 8, 2005. ABC Legal Services Inc. messengers attempted to personally serve Ross that same day, but found no one home. On December 19, 2005, Fairleigh's attorney mailed a notice of appeal and declaration of attempted service to Ross. A declaration of attempted service was filed with district court on December 23. Fairleigh posted the required bond on February 15, 2006. Ross filed a motion to dismiss for failure to prosecute on September 11, 2006. It was denied.
The superior court reviewed the case de novo solely on the record, and reversed the small claims court judgment on November 27, 2006. The trial court found Ross had unilaterally rescinded the contract nearly two months before filing in small claims court by taking steps to secure her earnest money. It concluded, "[u]nder the doctrine of election of remedies, if there exists two or more remedies at the time of election and the remedies are repugnant and inconsistent with each other, the party choosing one to final judgment is bound under the doctrine as a bar to the other [future] remedies. Ms. Ross' multiple claims and the court awarded damages are barred by the doctrine of election of remedies." Ross appealed.
Discussion
An appeal from a small claims judgment or decision is reviewed by the superior court de novo upon the record of the case, as entered by the district court. RCW 12.36.055. Under the standard set forth in RCW 12.36.055, we also review the record from small claims court proceedings de novo. Ross appeals questions of law, which this court also reviews de novo. Seattle v. Shepherd, 93 Wn.2d 861, 867, 613 P.2d 1158 (1980).
Ross argues the superior court erred when it did not dismiss the appeal for improper service of process. To file an appeal of a small claims court judgment or decision, a party must "pay the statutory superior court filing fee, post the required bond or undertaking, and serve a copy of the notice of appeal on all parties of record within thirty days after the judgment is rendered or decision made." RCW 12.36.020. The parties do not dispute that Fairleigh's notice of appeal was timely filed with the superior court. Ross received notice on December 19, 39 days after judgment was entered in small claims court.
When a superior court hears an appeal from small claims court, it acts in its capacity as an appellate court and it jurisdiction is only conferred by law. Conom v. Snohomish County, 155 Wn.2d 154, 157, 118 P.3d 344 (2005). Thus, "before a superior court may exercise its appellate jurisdiction, statutory procedural requirements must be satisfied." Id. If a superior court lacks jurisdiction, it must dismiss the case. Crosby v. County of Spokane, 137 Wn.2d 296, 301, 971 P.2d 32 (1999). Civil Rules for Courts of Limited Jurisdiction establish: "[f]iling the notice of appeal is the only jurisdictional requirement for an appeal." CRLJ 73 (b)(1). Timely service of notice of appeal on the other party is not required for jurisdiction, it is merely procedural. Fairleigh argues she complied with these procedural requirements by attempting to personally serve Ross on December 8 and subsequently serving her on December 19. We agree. Any defect was cured by the subsequent service, when Ross received actual notice on December 19. The trial court did not err when it did not dismiss for late service.
Ross also argues the superior court should have dismissed the appeal because Fairleigh failed to post bond within the time required by the statute. She did not raise this issue before the superior court. Although RCW 12.36.020 requires a bond be posted within 30 days, RCW 12.36.080 establishes that "No appeal under this chapter shall be dismissed on account of any defect in the bond on appeal." Instead, it establishes a procedure to cure any defect.
[I]f, within ten days of notice to appellant of such defect, the appellant executes and files in the court currently possessed of the cause such bond as should have been executed at the time of taking the appeal, and pay all costs that may have accrued by reason of such defect.
RCW 12.36.080. Fairleigh filed a notice of appeal on December 8, 2005, but posted the required bond on February 15, 2006. The record provides no reason for the delay. Regardless, RCW 12.36.080 specifically prevents dismissal for defective bond without an opportunity to cure. Any defect was cured by Fairleigh when she posted the required bond in February.
We conclude the appeal was timely filed and that no basis has been established for dismissal. We next consider the merits of the underlying claims.
Ross claims the award of the small claims court is not barred by the doctrine of election of remedies as Fairleigh argues, because she did not receive "double redress for a single wrong." According to Ross, the return of her escrow money was not an election of remedies and did not alleviate Fairleigh's liability for damages, including expectation damages for breach of contract. Fairleigh argues, and the superior court concluded, Ross elected to rescind her contract prior to filing a claim in small claims court and therefore could not claim damages.
The doctrine of election of remedies is premised on the belief that a plaintiff should not recover twice for a single wrong. Lange v. Town of Woodway, 79 Wn.2d 45, 49, 483 P.2d 116 (1971).
[T]hree elements must be present before a party will be held bound by an election of remedies. Two or more remedies must exist at the time of the election; the remedies must be repugnant and inconsistent with each other; and the party to be bound must have chosen one of them.
Lange, 79 Wn.2d at 49. "Two modes of redress are inconsistent if the assertion of one involves the negation or repudiation of the other, as where one of them admits a state of facts and the other denies the same facts." Batcheller v. Welden, 9 Wn.2d 392, 404, 115 P.2d 696 (1941). The doctrine, however, does not preclude a party from pleading different or additional grounds for resort to the same, identical remedy. Barber v. Rochester, 52 Wn.2d 691, 694-95, 328 P.2d 711 (1958).
In small claims court, Ross pleaded only damages for breach of contract totaling $4,000, the maximum small claims court amount. In documents provided to the court she listed the following as recoverable costs: earnest money, expenses relating to the credit report/underwriting fee, home inspection, appraisal fee, cost of an attorney, rent money, small claims filing fee, lost wages, and 3 percent of closing costs for the benefits of the bargain. All of these expenses and costs are recoverable under a claim for breach of contract. She did not seek to recover her escrow funds as additional damages. There was no basis for a double recovery and no basis to trigger the election of remedies doctrine.
The total for these amounts is listed as $9,461, with $2,752 returned from the escrow company. The balance is $6,708.90. Although her complaint pleads $4,000, it is less than the amount she lists as the "balance owing."
The trial court found that the acceptance of the escrow money constituted a unilateral rescission of the agreement. "Rescission can only occur when there is a mutual consent to rescind the contract, [or] a demand to rescind by one side with acquiescence by the other, or a material breach by one party with a claim of rescission by the other." Woodruff v. McClellan, 95 Wn.2d 394, 397, 622 P.2d 1268 (1980). Unilateral rescission did not occur here. Although Ross offered to rescind the contract if Fairleigh agreed to pay costs, the offer was conditional. Fairleigh did not accept or acquiesce. Ross did not assert she was unilaterally rescinding because of the breach; she asked for compensation as part and parcel of her offer. Ross' demand to the escrow agent for return of the escrow money was a separate and distinct act from her offer to Fairleigh of mutual rescission. Therefore, her request for escrow money cannot form a basis for election of remedies.
Recovery of the escrow money was a remedy available under either an equitable or legal claim for damages. Accepting this money from the escrow agent reduced Ross' claim for damages under either theory, but it did not constitute a unilateral rescission, or an election of remedies, or otherwise cut off her right to be made whole. Ross pleaded only one theory of recovery: a claim for breach of contract, not including a claim for the escrow money. Ross argues entitlement to attorney fees based on the purchase and sale agreement, which specified "If [b]uyer or [s]eller institutes suit against the other concerning this Agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses." Ross prevails on appeal and should receive attorney fees because of the provision in the contract. Scoccolo Constr. v. City of Renton, 158 Wn.2d 506, 521, 145 P.3d 371 (2006).
We reinstate the small claims court award and order Fairleigh to pay Ross' reasonable attorney fees.
WE CONCUR: