Cole v. Harveyland Llc

• Decision Date: 22 August 2011
• Docket Number: No. 65404–7–I.,65404–7–I.
• Citation: 258 P.3d 70,163 Wash.App. 199
• Parties: Deborah COLE, Respondent,v.HARVEYLAND, LLC, d/b/a The Harvey Apartments Group, a Washington corporation; Marwood, LLC, a Washington corporation, and Donald Harvey, a single man, and Michelle Jerome and John Doe Jerome and their marital community, Appellants.
• Court: Washington Court of Appeals

163 Wash.App. 199

258 P.3d 70

Deborah COLE, Respondent,

v.HARVEYLAND, LLC, d/b/a The Harvey Apartments Group, a Washington corporation; Marwood, LLC, a Washington corporation, and Donald Harvey, a single man, and Michelle Jerome and John Doe Jerome and their marital community, Appellants.

No. 65404–7–I.

Court of Appeals of Washington, Division 1.

Aug. 22, 2011.

Katherine George, Harrison Benis & Spence LLP, Seattle, WA, for Appellants.Jeffrey Lowell Needle, Seattle, WA, for Respondent.D. Michael Reilly, Lane Powell PC, Seattle, WA, for Amicus Curiae National Federation/Independent Business Small Business Legal Ctr.BECKER, J.

[163 Wash.App. 202] ¶ 1 The Washington Law Against Discrimination provides an exemption from private suit for employers of fewer than eight persons. Where the employer fails to raise the eight employee issue in the trial court, RAP 2.5(a) does not provide a basis for appellate review. The eight employee threshold is not “jurisdictional,” and the present case is not one where the plaintiff wholly failed to establish facts upon which relief could be granted. The issue is waived.

¶ 2 Donald Harvey owns Harveyland LLC, a limited liability company that in turn owns five apartment buildings. Deborah Cole was employed as the resident manager of one of them, the Marwood Apartments. Cole also worked directly for Harvey as his assistant in the management of all five of his properties and in other special projects. Cole worked for Harvey for about 16 years. She performed her duties satisfactorily and without complaint.

¶ 3 Harvey turned over the operation of the Marwood to his daughter, Michelle Jerome, in late April 2008. About the same time, Cole injured her knee on the job. She obtained a doctor's note stating that she should be excused from work for the next two weeks except for light duties with no lifting. On May 16, without making inquiry into what specific tasks Cole would still be able to do, Jerome fired Cole. Jerome had no previous experience or training in property management, and she was unfamiliar with the laws pertaining to disabled employees.

[163 Wash.App. 203] ¶ 4 Cole brought suit under RCW 49.60, the Washington Law Against Discrimination. The defendants included Harvey, Jerome, Harveyland LLC, and the limited liability company that owns the Marwood. We will refer to the defendants collectively as “Harveyland.” A jury found Harveyland liable for disparate treatment of Cole based on her disability and for failing to reasonably accommodate her disability. The verdict awarded Cole $385,000. After adding attorney fees and prejudgment interest, the court entered a judgment of $532,551.42. This appeal followed.

¶ 5 It is an unfair practice for any “employer” to discharge or bar any person from employment because of the presence of a physical disability. RCW 49.60.180(2). The primary issue on appeal concerns the eight employee threshold for private suit set by the definition of “employer.” The term includes “any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons.” RCW 49.60.040(11). Under this definition, employers of fewer than eight employees are exempt from the remedies provided in a private action under the Washington Law Against Discrimination. Griffin v. Eller, 130 Wash.2d 58, 61, 922 P.2d 788 (1996). In a case where the number of employees was in dispute, we held that the “payroll method” is “an effective means of demonstrating whether a person has an employment relationship on the day an alleged unfair employment practice is alleged to have occurred.” Anaya v. Graham, 89 Wash.App. 588, 593, 950 P.2d 16 (1998). The payroll method examines whether an individual's name is on the employer's payroll for the period covering the pertinent dates. Anaya, 89 Wash.App. at 593, 950 P.2d 16.

¶ 6 The question of who had the burden of proving whether Cole's employer had enough employees to be considered an “employer” under RCW 49.60.040(11) did not arise in the trial court at any time before or after the verdict. Cole's complaint contained no allegation that her employer had at least eight employees. Harveyland's answer did not say anything about the number of employees. Neither party offered payroll records into evidence to prove the number of employees. Neither party proposed an instruction informing the jury that it was necessary to determine whether Cole's employer had at least eight employees. The elements instructions given by the court were modeled upon Washington pattern instructions, none of which refer to the eight employee threshold. See WPI 330.32 and 330.33. Harveyland has not assigned error on appeal to the instructions that were given.

¶ 7 The only occasion during the trial where the so-called “numerosity” issue was touched upon was during Cole's cross-examination of Donald Harvey after she rested her case:

Q. [Counsel for Cole:] Mr. Harvey, during the period of time when Ms. Cole worked for you, it's true that you had approximately 10 employees? Isn't that right, Mr. Harvey?

A. [Harvey:] I'm sorry?

Q. [Counsel:] You had approximately 10 employees; isn't that right?

A. [Harvey:] It varied, but about that.

Counsel for Harveyland did not attempt to clarify or limit Harvey's answer to this question.

¶ 8 Harveyland now contends that it was Cole's burden to prove that her employer had at least eight employees. Harveyland maintains that Harvey's testimony, quoted above, was insufficient because on the dates when the alleged discrimination occurred, Cole was working only for the Marwood, not directly for Harvey.

¶ 9 An appellate court “may refuse to review any claim of error which was not raised in the trial court.” RAP 2.5(a); Roberson v. Perez, 156 Wash.2d 33, 39, 123 P.3d 844 (2005). As the use of the word “may” in the rule indicates, ultimately an appellate court's decision to review an error not raised in the trial court is discretionary. Roberson, 156 Wash.2d at 39, 123 P.3d 844. The rule contains three express exceptions: “a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right.” RAP 2.5(a). Harveyland argues it may properly raise the eight employee issue under the first and second exceptions.

THE NUMEROSITY REQUIREMENT IS NOT JURISDICTIONAL

¶ 10 Harveyland contends the statutory exemption for employers of fewer than eight employees is a limitation on the subject matter jurisdiction of Washington courts.

¶ 11 Whether a court has subject matter jurisdiction is a question of law reviewed de novo. Dougherty v. Dep't of Labor & Indus., 150 Wash.2d 310, 314, 76 P.3d 1183 (2003). A judgment entered by a court that lacks subject matter jurisdiction is void. Marley v. Dep't of Labor & Indus., 125 Wash.2d 533, 541, 886 P.2d 189 (1994). There is no time limit for attacking a void judgment. Allstate Ins. Co. v. Khani, 75 Wash.App. 317, 324, 877 P.2d 724 (1994). Harveyland contends the trial court lacked subject matter jurisdiction because Cole failed to prove her employer had at least eight employees, and consequently the judgment in favor of Cole is void.

¶ 12 Because the consequences of a court acting without subject matter jurisdiction are draconian and absolute, appellate courts must use caution when asked to characterize an issue as “jurisdictional” or a judgment as “void.” Judicial opinions sometimes misleadingly state that the court is dismissing for lack of jurisdiction when some threshold fact has not been established. Arbaugh v. Y & H Corp., 546 U.S. 500, 511, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Litigants who have failed to preserve a claim of error in the trial court will then seize upon such casual references to “jurisdiction” in appellate opinions as a basis to argue that an issue may be raised for the first time on appeal. That is what has happened here. Harveyland's argument that the eight employee limitation is “jurisdictional” rests on snippets of case law not intended to be precedential as to the scope of the superior court's subject matter jurisdiction.

¶ 13 Harveyland places principal reliance on Neilson ex rel. Crump v. Blanchette, 149 Wash.App. 111, 201 P.3d 1089 (2009). In that case, the trial court entered a protection order in favor of a 14 year old girl, Nielson, against her 17 year old ex-boyfriend, Blanchette. On appeal, the boy successfully argued that the trial court lacked authority to issue the protection order because, given their respective ages, the girl did not have a relationship covered by the statute. Although the issue had not been raised in the trial court, this court elected to address the issue and reverse the order, citing RAP 2.5(a)(1).

Generally, we may refuse to review a claim of error not raised in the trial court. RAP 2.5(a). However, where, as here, the asserted error concerns the trial court's authority to act, we may elect to review the issue. See RAP 2.5(a)(1) (appellate court may review issue of lack of trial court jurisdiction for first time on appeal).

Neilson, 149 Wash.App. at 115, 201 P.3d 1089.

¶ 14 According to Harveyland, Neilson provides authority for construing a definitional statute as imposing a jurisdictional requirement. We disagree. The very broad subject matter jurisdiction of the superior court is defined by the state constitution, not by statutes. Wash. Const. art. 4, § 6; Young v. Clark, 149 Wash.2d 130, 134, 65 P.3d 1192 (2003); Williams v. Leone & Keeble, Inc., 171 Wash.2d 726, 254 P.3d 818, 821 (2011). Indeed, our Supreme Court has rejected the contention that RCW 49.60 is a “jurisdictional statute.” Burnside v. Simpson Paper Co., 123 Wash.2d 93, 98–99, 864 P.2d 937 (1994). Exceptions to the jurisdictional grant in article 4, section 6 are to be narrowly construed. Burnside, 123 Wash.2d at 99, 864 P.2d 937.

[163 Wash.App. 207] ¶ 15 The Neilson...