Clark County v. Darby
| Decision Date | 15 August 2017 |
| Docket Number | 49023-4-II |
| Court | Washington Court of Appeals |
| Parties | CLARK COUNTY, a political subdivision of the State of Washington, Respondent, v. DAVID A. DARBY, Appellant, EDNA STEINHAUER AGUN & HELEN ANDERSON CRAIG AGUN; CRAIG ANDERSON; WAYNE LORENZO APLING; YVETT M. BADDGOR & JESSIE (C/B) BADDGOR; JEFFREY M. BANNAN; DONALD RAY BLANCHARD & KFM BLANCHARD; DOUGLAS E. CARDON; THOMAS CARLISLE & GAIL CARLISLE; GARNET W. CHRISTIAN III & MICHAEL D. CHRISTIAN & MARK A. CHRISTIAN; CORNERSTONE CONSULTANTS; EQUITY BUILDERS PROP. LLC; ORVALEE A. FARRIS; FEDERAL NATIONAL MORTGAGE ASSOCIATION; RICHARD FLEMING & CHERYL FLEMING; DALE GAWLEY; ADELE GLASS; DEUTSCHE BANK NATIONAL TRUST COMPANY; GRANITE HIGHLANDS LLC; VIKKI HAINES & RICHARD PETERSON; DEBORAH HANSEN; COREY D. HARRIS & JULINE K. HARRIS; JAMES W. HAUENSTEIN & RENEE HAUENSTEIN; MICHELLE D. HETTRICK; GLEN D. HOLLAR; ARLEEN D. GRAVES JACKSON; MARGARET JORGENSON ESTATE; AMIR KHAZENI & DEBORAH KHAZENI; TODD KOOISTRA & BRIDGET KOOISTRA; HELEN LILIANA LANGSTON; LIFETIME LEASING & LIFETIME RESOURCES; KFMBERLY D. MANECKE & JOSEPH MANECKE; ORVILLE MARSH & ROSALIE MARSH; SHARIL. MCCLENNEN; JUNE MCCOURT; ROBERT D. MEDEROS & TRACIIMEDEROS; KATHERINE MEYER ESTATE; RYAN MOSS & KERI MOSS; ERIK ODONNELL & KELLY ODONELL; PACIFIC MOUNTAIN DEVELOPMENT INC.; KFMBERLY PENNFNGTON 50%; PETE PEREZ & BERNADETTE PEREZ; BRADLEY R. PERSHFNG & CHRISTINA L. PERSHFNG; MICHAEL RUPE & ANGELA RUPE; DAVID L. RUTH & PAMELA RUTH; JULIE RYAN; BENJAMIN SAGON & ANITA SAGON; SLD PROPERTIES LLC; SOPER HILL PROPERTIES INC; JOSEPH G. SPEARS; JOHN L. SULLIVAN & JULIANA SULLIVAN; SANDRA SWANSON; STEVEN TUCK & BONNIE TUCK; GREGG STEWART WALKER; CHARLES WALLACE; THOMAS WALLING & CARRIE WALLING; ANTHONY WUXBANKS & SARAH WUXBANKS, Defendants. |
UNPUBLISHED OPINION
David A. Darby appeals the superior court's order denying his CR 60(b)(5) motion. Darby sought to set aside the superior court's order granting Clark County's (the County) summary judgment motion and the superior court's judgment of foreclosure in a tax foreclosure proceeding. The County requests sanctions under RAP 18.9(a). We hold that the superior court properly denied Darby's CR 60(b)(5) motion. We also grant the County's motion for sanctions. We affirm.
In September 2012, the Clark County Treasurer filed a certificate of delinquency initiating a tax foreclosure proceeding against Darby. The County alleged that Darby had not paid real property taxes on his property for three or more years. In October, the treasurer filed a notice and summons of intention to file application for judgment foreclosing tax liens against Darby.
In June 2014, the County moved for summary judgment authorizing the tax foreclosure sale of Darby's property. It argued that there was no question of fact as to whether Darby had paid the delinquent property tax for more than three years. The County supported its motion for summary judgment with a declaration from Clark County Treasurer Doug Lasher.
In his declaration, Lasher stated that the outstanding taxes interest, foreclosure costs, and penalty accrued on Darby's property from the second half of 2008 to 2014 totaled $22, 988.71. He further asserted that on May 17 2012, Darby had been notified that his property would be subject to foreclosure if the taxes, penalty, and interest were not paid by February 2013 and that Darby did not pay.
Lasher further stated that the treasurer's office issued a notice and summons to Darby advising him that the treasurer's office intended to seek a judgment foreclosing the tax liens and attached a copy of the October 2012 notice and summons to his declaration. Lasher also asserted that Darby had been served in person at the treasurer's office on November 30, 2012 and attached a copy of the proof of service. Lasher stated that as of June 23, 2014, Darby had still not paid the delinquent taxes.
Three days before the hearing on the County's summary judgment motion, Darby filed his own summary judgment motion and a response to the County's summary judgment motion. In his summary judgment motion, Darby asserted that the laws the County was trying to enforce were unconstitutional and that the county treasurer and county auditor had failed to rebut his demand that the County "prove in Constitutional Law that the county has the right to tax and control [his] Land Patented land." Clerk's Papers (CP) at 473. He asserted that under his "Land Patent, " no government could tax his property unless it had an interest in the property. And he demanded that the County prove that the tax was lawful under the "supreme law of the land" found in the 1787 federal constitution and bill of rights and the 1878 Washington Constitution. CP at 473. Darby asserted that because the County had not "rebutted" various "affidavits"[1] he had filed with the County and the court, those affidavits established the "truth" and he was entitled to summary judgment. CP at 473.
On July 31, Darby filed an amended response to the County's summary judgment motion.[2]In this response, he again argued that the County did not have the authority to collect delinquent real property taxes under the 1878 Washington Constitution and the "Land Patent Law pursuant to Article 1, Section 10 of the 1787 Constitution for the United States of America." CP at 554-55. He further asserted that there were genuine issues of material fact because (1) the County had not presented any "competent fact witness" or other "authentic" evidence, [3] (2) he had provided "testimony before the Court and in the court record, " and (3) Clark County had not presented evidence showing that the 1878 Washington Constitution had been amended to allow for taxation of private property or that the 1878 Washington Constitution was "fraudulent." CP at 555-57. In addition, he suggested that there were "standing" issues under article III of the United States Constitution. CP at 557. Darby also attached a motion to compel discovery, asking that the superior court compel the County to "provide all the documents that prove in constitutional law that the county has the constitutional authority to foreclose on property that has a lawful Land Patent listing the Defendant David A Darby as the titled owner."[4] CP at 478.
That same day, the County moved to strike Darby's response and summary judgment motion as untimely under CR 56(c). The County also asserted that even if the court were to consider Darby's filings, Darby appeared to concede that there were no genuine issues of material fact preventing summary judgment because he did not dispute that (1) he owned the property in question, (2) he had been assessed $22, 988.71 in property taxes, and (3) he had not made any payments.
The summary judgment hearing was held on August 1, 2014. The superior court granted the County's summary judgment motion and authorized the foreclosure sale after finding that there were no disputes as to any material facts. In its order, the superior court stated that it "ha[d] heard oral argument and reviewed the pleadings, files and records herein, including Clark County's Motion for Summary Judgment and supporting materials and Defendant's responsive briefing."[5]CP at 1126.
Rather than appeal the foreclosure action, Darby filed a new action and a CR 60 motion under a new cause number. See Darby v Clark County, noted at 192 Wn.App. 1069, 2016 WL 917807 at *1. The superior court dismissed the new action and the CR 60 motion. Darby, 2016 WL 917807, at *2. In an unpublished opinion filed in March 2016, we affirmed the superior court, noting that Darby could not challenge the superior court's decision in the foreclosure action by means of another, separate action. Darby, 2016 WL 917807, at *3.
On May 2, 2016, apparently in response to our appellate decision Darby filed a motion in the tax foreclosure action in which he asserted he was bringing a CR 60(b)(5) "[c]ollateral attack to vacate a void Order and Judgement [sic] of Foreclosure." CP at 590 (emphasis omitted). In this motion, he appears to assert that the judgment was "void" because (1) the County did not present any evidence supporting its summary judgment motion, (2) the County's failure to rebut his affidavits demonstrated that the court had no jurisdiction, that his property was not subject to lien under the "Land Patent" laws, and that he was a sovereign citizen, (3) the County had no standing because it had no interest in Darby's property, (4) the tax lien was unlawful and the court had no jurisdiction under the 1878 Washington constitution, and (5) the tax lien was unlawful because the State had no contract with Darby. Two days later, Darby filed a motion entitled "Plaintiffs Collateral Attack to Vacate a Void Order" in the original foreclosure action.[6] On May 17, the County responded, arguing that the superior court should deny Darby's motion because it failed to set forth any legal or factual basis to support any relief "and represents an improper attempt to circumvent Washington's appellate process." CP at 1138.
The next day, Darby filed a "Memorandum in Support" of his motion, which appears to be a reply to the County's response to the CR 60 motion. Darby argued that the judgment was void, apparently based on lack of subject matter jurisdiction under the 1878 Washington Constitution and because of his status as a sovereign citizen. Darby also appeared to argue that (1) the superior court was required to apply less stringent standards to him because he was pro se, [7] and (2) summary judgment for the County was improper because the superior court considered counsel's arguments as evidence and the County did not dispute his (Darby's) "testimony."[8]
At the May 20 hearing...
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