Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 45831-1-I
Title of Case: Alexandria Parry, Appellant
v.
Windermere Real Estate East, Respondent
File Date: 10/16/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 98-2-17607-5
Judgment or order under review
Date filed: 11/22/1999
Judge signing: Hon. Richard Eadie
JUDGES
------
Authored by Faye C. Kennedy
Concurring: William W. Baker
Mary K. Becker
COUNSEL OF RECORD
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Counsel for Appellant(s)
Roderick T. McCarvel
Attorney At Law
157 Yesler Way
Suite 514
Seattle, WA 98104
Counsel for Respondent(s)
Melanie A. Leary
Demco Law Firm PS
5224 Wilson Avenue South
Seattle, WA 98118
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALEXANDRIA PARRY, )
) NO. 45831-1-I
Appellant, )
) DIVISION ONE
v. )
)
WINDERMERE REAL ESTATE/ EAST, ) PUBLISHED OPINION
INC., a Washington corporation, )
)
Respondent. ) FILED
KENNEDY, J. - As King County Local Rule (KCLR) 4.2(a)(2) is currently
administered by the King County Superior Court in non-family law civil
cases, a defendant who has timely raised the defense of insufficient
service of process does not waive the defense by subsequently signing a
confirmation of joinder representing to the court that all parties have
been served or have waived service. The confirmation of joinder is not a
pleading; rather it is a case-management tool designed to notify the court
whether non-family law civil cases that are governed by case schedules are
on track. A given case may be on track, so that no status conference is
necessary, notwithstanding the fact that an affirmative defense regarding
insufficient service of process has been timely raised and remains
unresolved by the court. We deem it unfortunate that the confirmation of
joinder form contained in KCLR 4.2(a)(2) effectively requires a defendant
who has timely raised the defense of insufficient service to represent to
the court that all parties have been served or have waived service when
that is not in fact true. Nevertheless, by signing the form, such a
defendant does not intentionally abandon or relinquish a known right.
Neither is such a defendant estopped from subsequently seeking summary
judgment dismissing the plaintiff's complaint on grounds of insufficient
service. Accordingly, we affirm the trial court's grant of summary
judgment to Windermere Real Estate/East, Inc., (Windermere/East) dismissing
Alexandria Parry's complaint for breach of fiduciary obligations and
violation of the Consumer Protection Act, it being undisputed that Parry
failed to serve Windermere/East.
FACTS
Alexandra Parry filed this lawsuit against Windermere/East, claiming that
the company breached its fiduciary obligations to her in the course of
representing her in the purchase of a home, and in doing so violated the
Consumer Protection Act. It is undisputed that Parry failed to serve the
summons and complaint on Windermere/East. Instead, she served Windermere
Real Estate/Renton, Inc., (Windermere/Renton) a separate and distinct
corporation. Nevertheless, the president of Windermere/Renton sent the
documents to Demco Law Firm, P.S., which represented Windermere/East.
Some sixty days later, the Demco Law Firm filed Windermere/East's answer to
the complaint, asserting the affirmative defenses of insufficient service
of process and lapse of the statute of limitations. On March 30, 1999,
Parry's attorney filed a Confirmation of Joinder of Parties, Claims and
Defenses (confirmation of joinder) in accord with KCLR 4.2(a)(2). The
confirmation of joinder stated unequivocally: 'All parties have been
served or have waived service.' An attorney at the Demco Law Firm approved
the confirmation of joinder for entry before it was filed with the court.
The parties proceeded with discovery with respect to the claim that the
statute of limitations had lapsed, and other issues in the case.
Thereafter, Windermere/East moved for summary judgment, contending, inter
alia, that Parry had failed to properly serve the summons and complaint.
In response to the motion, Parry contended, as she does for this appeal,
that (1) Windermere/East waived its previously pleaded affirmative defense
of insufficiency of service of process when its attorney signed the
confirmation of joinder; (2) Windermere/East should be estopped from
asserting the defense because Parry reasonably relied on the statement of
waiver contained in the confirmation of joinder by proceeding with
discovery, mandatory settlement procedures and trial preparation, at
considerable expense, and may have been lulled into allowing the statute of
limitations to lapse; and (3) Windermere/East should be sanctioned under CR
11 for filing the motion for summary judgment, which, Parry contends, could
not be well-grounded in fact or warranted by law in light of the joint
statement in the confirmation of joinder that '{a}ll parties have been
served or have waived service.'
The trial court declined to impose sanctions under CR 11 and granted
Windermere/East's motion for summary judgment, dismissing Parry's claims.
Parry brought this timely appeal.
DISCUSSION
Summary judgment is available only if the pleadings, depositions, answers
to interrogatories, admissions on file, and any affidavits show that there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. CR 56(c). In reviewing a summary
judgment order, this court conducts the same inquiry as the trial court.
Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d
1383 (1994). We review questions of law de novo. Id.
Parry contends that Windermere/East waived the defense of insufficient
service of process raised in its answer by subsequently signing a
confirmation of joinder stating that '{a}ll parties have been served or
have waived service.' Waiver is 'the intentional abandonment or
relinquishment of a known right. It must be shown by unequivocal acts or
conduct showing an intent to waive, and the conduct must also be
inconsistent with any intention other than to waive.' Mid-Town Ltd.
Partnership v. Preston, 69 Wn. App. 227, 233, 848 P.2d 1268 (1993). Waiver
of an insufficient service of process defense can occur 'if the defendant's
assertion of the defense is inconsistent with the defendant's previous
behavior,' or if 'defendant's counsel has been dilatory in asserting the
defense.' Lybbert v. Grant County, 141 Wn.2d 29, 39, 1 P.3d 1124 (2000)
(citing Romjue v. Fairchild, 60 Wn. App. 278, 281, 803 P.2d 57 (1991),
Raymond v. Fleming, 24 Wn. App. 112, 115, 600 P.2d 614 (1979)). Once a
party properly preserves the defense, it is not waived merely by proceeding
with discovery, 'even if the discovery is not directly related to the
defense.' Clark v. Falling, 92 Wn. App. 805, 813-14, 965 P.2d 644 (1998)
(citing French v. Gabriel, 116 Wn.2d 584, 594, 806 P.2d 1234 (1991)).
KCLR 4.2(a)(1) provides that no additional parties may be joined and no
additional claims or defenses may be raised after the date designated in
the case schedule for confirmation of joinder of additional parties, claims
and defenses, unless the court orders otherwise for good cause and subject
to such conditions as justice requires. KCLR 4.2(a)(2) provides that if
all parties do not sign the confirmation of joinder form set forth in the
rule by no later than the designated deadline contained in the case
schedule order, a status conference shall be held. The confirmation of
joinder form contains two alternative sections, each with its own box to be
checked.
By checking the first box, all parties signing the form represent to the
court that (1) the case is not subject to mandatory arbitration; (2) no
additional parties will be joined; (3) all parties have been served or have
waived service; (4) all mandatory pleadings have been filed, (5) no
additional claims or defenses will be raised; (6) the parties anticipate no
problems in meeting the deadlines for disclosing possible witnesses and
other subsequent deadlines in the case schedule; and (7) all parties have
cooperated in completing the report. If the first box is checked and all
parties or their counsel have signed the form, the case status conference
contained in the case schedule order will be stricken. KCLR 4.2(a)(2).
By checking the second box, the parties signing the form represent to the
court that they cannot join in making the foregoing representations for one
or more reasons from a checklist provided in the form and all applicable
boxes in that checklist must be marked including whether: (1) the case is
subject to mandatory arbitration, but not yet ready for the statement of
arbitrability to be filed; (2) an additional party will be joined; (3) a
party remains to be served; (4) a mandatory pleading remains to be filed;
(5) an additional claim or defense will be raised; (6) one or more parties
anticipate a problem in meeting certain deadlines in the case schedule; (7)
a party has refused to cooperate in preparing the report; and (8) other
explanation in which event lines are provided in which to set forth that
explanation. If this second part of the form has been utilized, there must
be a status conference as noted in the case scheduling order, at which all
parties or their attorneys must appear. KCLR 4.2(a)(2).
Thus, by utilizing the first alternative box on the form, the parties
advise the court that the case is on track as required by the case
schedule, so that no status conference is needed. By utilizing the second
alternative box on the form, the parties advise the court that the case is
not on track as required by the case schedule, and disclose the nature of
the problem or problems that have caused the delay in processing the case.
A mandatory hearing is then held before a judge, commissioner or special
master designated by the presiding judge. KCLR 4.2(a)(4). Failure to be
on track in accord with the deadlines contained in the case schedule may
result in the imposition of sanctions, including dismissal or terms. KCLR
4(g).
Parry's complaint was filed on July 24, 1998, and Windermere/East filed an
answer which raised the defense of insufficient service of process on
September 10, 1998, less than two months later. The confirmation of
joinder form, with the first box checked and the second box left blank, was
timely filed with the court on March 30, 1999. The case was on track as of
that date, and there was no need for a status conference.
In Clark, this court held that a defendant who has raised the defense
of insufficient service of process in a timely fashion does not waive the
defense by failing to object to the plaintiff's KCLR 4.2 confirmation of
joinder which states that '{a}ll parties have been served or have waived
service.' While acknowledging our holding in Clark, Parry contends that by
signing as a party to the confirmation of joinder, rather than merely
acquiescing to the plaintiff's representations, Windermere affirmatively
waived its previously-asserted insufficient service of process defense.
The Clark court reasoned that acquiescing to the statements in the
confirmation of joinder at most indicates that a defendant was served, but
says nothing about the sufficiency of the service. Clark 92 Wn. App. at
813. That reasoning may be somewhat problematic when applied to the facts
of this case, in that by signing the confirmation of joinder with the first
box checked a party represents that it either has been served or has waived
service. One might well ask, as Parry has in this appeal, why a defendant
who represents to the court that all parties either have been served or
have waived service is not thereby representing to the court that any
insufficiency there may have been with respect to such service has also
been waived. Indeed, Parry argues that by signing the confirmation of
joinder with the first box checked, the parties effectively stipulated in
writing that service had been made or waived, as contemplated by CR 2A
(under which no agreement or consent between parties or attorneys in
respect to the proceedings in a cause will be regarded by the court unless
assented to in open court on the record, or entered in the minutes, or
evidenced in writing signed by the attorneys denying such agreement or
consent).
Nevertheless, it would defy logic to hold that a party's properly
preserved defense is waived merely by signing a form required by local rule
for case scheduling and management. Under CR 12(b), the defense of
insufficiency of service of process is preserved by assertion in a
responsive pleading or by motion. Waiver of the defense is addressed by CR
12(h)(1). Once properly preserved under CR 12, the defense need not be
decided before trial. Id. at 814 (citing French, 116 Wn.2d at 589). Under
CR 83, superior courts can adopt local rules that are not inconsistent with
the Rules of Civil Procedure. A local rule that restricts a valuable right
granted by a statewide civil rule conflicts with such rule and cannot be
given effect. King County v. Williamson, 66 Wn. App. 10, 13, 830 P.2d 392
(1992). The preservation of a defense that has been properly raised by
timely assertion under CR 12 is a valuable right. Thus, it is questionable
whether a party's compliance with KCLR 4.2(a)(2) could properly be
construed to restrict the right created by preservation of a defense under
CR 12. This potential issue is not before us, however, for as KCLR
4.2(a)(2) is currently administered by the King County Superior Court, a
defendant in a civil non-family law case who has timely raised the defense
of insufficiency of service in the answer to the complaint does not waive
the defense by checking the first box on the confirmation of joinder form,
thereby representing to the court that all parties have been served or have
waived service. See Michelle Coad, Primer on the Status
Conference/Noncompliance Calendar, King County Bar Association Bar
Bulletin, May 2000 at 8, 21 ('The {individual calendar} judges have agreed
that the first box may be checked even if a defendant has raised a defense
of improper service in the answer. The defense is not waived by agreeing
to a {confirmation of joinder} with the first box checked.'); Judge Brian
Gain, Message to Attorneys, King County Bar Association Bar Bulletin, May
2000 at 8 (confirming that Special Master Michelle Coad's article describes
King County Superior Court's current status conference/non-compliance
calendar program, and inviting comments and suggestions on the civil case
flow procedures, now that all civil cases are assigned to individual judges
rather than to a master calendar).
We adhere to the decision in Clark, and extend it to the facts in this case
where counsel affirmatively joined in the representations contained in the
confirmation of joinder rather than merely acquiescing in them.
Windermere/East did not waive its insufficient service of process defense,
which was preserved in its answer, by subsequently signing the confirmation
of joinder, which is intended to be a case management tool and which is not
a pleading and does not constitute a stipulation within the meaning of CR
2A.
Parry also asserts that Windermere/East is estopped from raising the
defense of insufficiency of service of process. Much like Parry's waiver
claim, Parry's assertion is that Windermere/East's assent without
reservation to the confirmation of joinder was inconsistent with its
subsequent assertion of insufficient service of process at summary
judgment, and that this inconsistent conduct caused harm to her.
Parry must show that she 'reasonably relied on an admission,
statement, or act' of Windermere/East's 'that is inconsistent with
{Windermere/East's} assertion of the insufficiency of service of process
defense and {that she} would be injured if {Windermere/East} is permitted
to rely on the defense.' Clark, 92 Wn. App. at 815 (citation omitted).
Parry's estoppel claim fails for the same reason her waiver claim
fails. As noted in Clark, assenting to a confirmation of joinder and then
proceeding to discovery is not inconsistent with the subsequent assertion
of the properly preserved defense of insufficiency of service of process.
'Because a party is not required to move for dismissal on the defense at
any particular time before trial, and the court may defer such a motion
until trial, it would be foolish for the defendant to forgo discovery on
the merits of the case.' Id. It would be equally foolish for the
defendant to forego discovery on the statute of limitations defense. Parry
thus cannot show an admission, statement, or act that is inconsistent with
Windermere/East's assertion of the insufficiency of service defense.
Parry states that her reliance on Windermere/East's approval of the
confirmation of joinder resulted in harm to her due to the time and money
expended during discovery and because of the possibility that her breach of
fiduciary duty claim would be precluded by the lapse of the statute of
limitations. As noted above, since signing a confirmation of joinder is
not inconsistent with timely assertion of the defense, the time and money
Parry expended in trial preparation does not amount to a harm for purposes
of estoppel. In addition, Parry's contention that her claim might have
been cut off by operation of the statute of limitations does not amount to
an articulable harm. Indeed, part of the purpose of taking the depositions
was to determine whether Parry's claim had survived the statute of
limitations. It follows that Parry cannot rely on discovery with respect
to that defense, to prove a harm supporting estoppel.
Parry next asserts that the trial court abused its discretion by declining
to impose CR 11 sanctions on Windermere/East for filing a motion for
summary judgment based in part on the defense of insufficient service of
process. This court reviews a trial court's denial of CR 11 sanctions
under the abuse of discretion standard. Brin v. Stutzman, 89 Wn. App. 809,
827, 951 P.2d 291, review denied, 136 Wn.2d 1004 (1998). Imposition of CR
11 sanctions may be warranted if a party files a motion 'for any improper
purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.' CR 11. However, Windermere/East's
motion for summary judgment based in part on insufficient service of
process was well grounded in fact and warranted by existing law. Because
Windermere/East did not waive its insufficiency of service of process
defense, it follows that the trial court did not abuse its discretion by
declining to impose CR 11 sanctions on Windermere/East for moving for
summary judgment.
Although we affirm the trial court's ruling, this is not to say that
we have no sympathy for Parry's predicament. Indeed, as noted by Special
Master Michelle Coad: 'Currently the {confirmation of joinder} form
indicates that the second box must be checked if there are service issues
raised in the answer to the complaint. However the {individual calendar}
judges are not enforcing the form{.}' Primer on the Status
Conference/Noncompliance Calendar, supra, at 21 (emphasis in the original).
Indeed, Special Master Coad noted at the outset of the article, it was
written 'to clarify common misconceptions' and to inform readers about the
policies of the presiding department with respect to matters covered in the
article. Id. at 8. It seems safe to assume, therefore, that Parry and her
counsel are not the only persons to have been mislead by the form with
respect to whether a defendant in a civil non-family law case having
previously asserted a claim of insufficiency of service has waived the
alleged insufficiency by joining in the confirmation of joinder with the
first box checked. We deem it unfortunate that the local rule itself,
within the body of the form or elsewhere in the body of the rule does not
clarify the policies of the presiding department with respect to the
meaning of the form in non-family law civil cases. Ideally, the meaning of
a rule should be apparent on the face of the rule or in the body of a form
prescribed by the rule, or both. Our concern is compounded when we also
note from Coad's article that the form prescribed in subsection (b) of KCLR
4.2 relating to family law cases does mean what it says if improper
service is raised in family law cases, a party may not check the first box
on the confirmation of issues form representing that all parties have been
served or have waived service when in fact they have not. Instead, the
second box must be checked, indicating that a party remains to be served.
Coad, supra, at 21 ('If improper service is raised in domestic cases, that
issue must be resolved by motion or new service prior to checking off the
first box on the {confirmation of issues form}.')
Where a form prescribed by a rule does not mean what it says, at least not
as the rule is currently enforced, this is tantamount to an unwritten local
rule of the sort that can easily entrap out-of-county counsel, pro se
litigants and others who may not be familiar with such unwritten rules of a
particular jurisdiction. Thus, notwithstanding this court's ruling in
Clark which came down a year before the confirmation of joinder in this
case, it is difficult for us to conclude that Parry and her counsel did
not reasonably rely on the fact that Windermere/East's counsel signed the
confirmation form thereby seemingly waiving the previously asserted defense
of insufficiency of service of process. It is laudable that Presiding
Judge Gain caused Michelle Coad's article to be published in the King
County Bar Association's Bar Bulletin, albeit after the fact in terms of
the misperceptions of Parry and her counsel, and perhaps to no avail for
out-of-county counsel and pro se litigants who may not subscribe to the Bar
Bulletin. A better solution would be to amend the local rule so that it
says what it means, or to enforce the rule in such a manner that it means
what it says thereby squarely presenting the question of whether the rule
can be enforced as written consistent with CR 83.
Although we agree with Special Master Coad that the form here at issue is
misleading in light of the fact that it is not being enforced, this does
not change our ruling. Windermere/East was not properly served with
Parry's summons and complaint, and properly raised the defense of
insufficiency of service in its answer in accord with the provisions of CR
12. The case was on track vis a vis the case schedule order when
Windermere/East's counsel was called upon to sign the confirmation of
joinder form with the first box checked; therefore, no status conference
was required. Windermere/East's counsel signed the confirmation of joinder
form with the blessing, as it were, of the judges of the King County
Superior Court thereby representing that all parties had been served or had
waived service when that was not in fact true. KCLR 4.2 is a case-
management tool, not a substantive pleading and there remains a serious
question as yet unresolved whether the form contained in KCLR 4.2(a)(2)
could properly be treated as a waiver of a previously asserted and properly
preserved defense in any event, even if it were currently being so
construed in King County Superior Court, which it is not. By signing the
form with the first box checked, Windermere/East's counsel did not
intentionally abandon or relinquish a known right, and was not estopped
from asserting the defense in its motion for summary judgment because
signing the form was not inconsistent with the affirmative defense raised
in its answer nor with the fact that it proceeded with discovery with
respect to the merits of the case or the defense of lapse of the statute of
limitations, nor with its subsequent motion for summary judgment seeking a
ruling on the sufficiency of service of process. Thus, even if Parry
reasonably relied on the waiver statement contained in the confirmation of
joinder form, summary judgment in Windermere/East's favor was proper.
Accordingly, we affirm the trial court's dismissal of Parry's complaint by
way of summary judgment.
WE CONCUR:
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