Cotton v. City of Elma

• Decision Date: 21 April 2000
• Docket Number: No. 24490-0-II., No. 23700-8-II
• Citation: 998 P.2d 339,100 Wash.App. 685
• Court: Washington Court of Appeals
• Parties: Jean A. COTTON, Appellant, v. CITY OF ELMA, a municipal corporation; David Osgood and Rhonda Osgood, husband and wife; Dan Piper and "Jane Doe" Piper, husband and wife; Norma Johanson, a single woman; Harry Henneck, Jr., a single man; Norman Oschner and "Jane Doe" Oschner, husband and wife; "John Doe" Thurman and Debbie Thurman, husband and wife; and David Hatch, Respondents.

998 P.2d 339

100 Wash.App. 685

Jean A. COTTON, Appellant, v. CITY OF ELMA, a municipal corporation; David Osgood and Rhonda Osgood, husband and wife; Dan Piper and "Jane Doe" Piper, husband and wife; Norma Johanson, a single woman; Harry Henneck, Jr., a single man; Norman Oschner and "Jane Doe" Oschner, husband and wife; "John Doe" Thurman and Debbie Thurman, husband and wife; and David Hatch, Respondents.

Nos. 23700-8-II, 24490-0-II.

Court of Appeals of Washington, Division 2.

April 21, 2000.

Therese Marie Wheaton, Cotton Law Offices, Elma, Melanie K. Hantze, Olympia, for Appellant.

Donald George Daniel, Law, Lyman, Daniel et al., Daniel O. Glenn, Glenn & Hoffman Ps, Olympia, for Respondents.

Susan J. Owens, Forks, for Amicus Curiae Municipal Court Judges Assoc.

SEINFELD, J.

In this quo warranto action, Jean A. Cotton, a former municipal court judge, claims that the City of Elma illegally appointed a replacement judge to her position. We hold that Cotton, by failing to object to the process that led to her replacement, has abandoned her claim to the office and, thus, is estopped from reclaiming the position through quo warranto.

FACTS

On January 20, 1995, City of Elma Mayor William J. Bilsland appointed Cotton as municipal court judge pro-tem to serve until the expiration of his term. The mayoral term expired December 31, 1995, but Bilsland resigned early, leaving office in March 1995.

David C. Osgood then assumed the position of mayor and, on June 12, 1995, appointed Cotton judge pro-tem to serve until the expiration of his term in December. Cotton signed the pro-tem municipal court judge oath of office for a term to expire on December 31, 1995.

In July 1995, City of Elma Municipal Court Judge Arthur A. Blauvelt III, whose term of office was not due to expire until December 31, 1997, requested a leave of absence through the end of November 1995. He requested that Cotton take over his position during his leave. Mayor Osgood granted both requests by letter dated July 21, 1995. On that same date, Mayor Osgood wrote to Cotton offering her Judge Blauvelt's position until the end of Blauvelt's leave. Cotton accepted and signed a municipal court judge's oath on October 18, 1995.

In November 1995, Osgood was elected to a full term as mayor. Later that month, Judge Blauvelt tendered his resignation. At a City Council meeting in late November 1995, the Council voted to appoint Cotton to Judge Blauvelt's position "until the position is filled/has been filled with a permanent position." Cotton was present at the meeting.

On November 30, 1995, Cotton signed a municipal court judge's oath. The oath did not indicate the term of service.

In 1996, Cotton reprimanded a court employee. The employee appealed to the Mayor, who overturned the reprimand in September 1996.

In late January 1997, the City advertised the position of municipal court judge for an unstated term. The City interviewed five of the applicants, including Cotton.

At a February 24, 1997, council meeting, the Mayor recommended the appointment of David Hatch. This elicited a bitter response from Cotton, who nonetheless concluded that she would "leave gracefully."

A majority of the council approved Hatch's appointment without discussion as to the length of the appointment. In late February 1997, Hatch signed the oath of office for an unstated term.

Two months later, on April 28, 1997, Cotton filed this quo warranto action, alleging that her removal and replacement was illegal. She sought Hatch's ouster, her own reappointment for the balance of the term, and unspecified damages. In its answer, the City asserted that (1) Cotton lacked standing, (2) her claim was barred by the doctrine of estoppel, and (3) her claim was barred by laches.

On October 20, 1997, while her quo warranto action was pending, Cotton applied for the municipal court judgeship for 1998-2001. The City Council re-appointed Hatch for the next four-year term.

Both parties moved for summary judgment. A hearing was initially set for June 5, 1998, but was continued until June 19 at both parties' request. The parties later agreed to reschedule the hearing to July 24, but, unfortunately, the trial court did not receive notice of this agreement.

When neither side showed up for the June 19 hearing, the trial court continued the matter until June 26. The parties were unaware of the new date and, thus, neither side appeared. Nonetheless, the trial court granted summary judgment in favor of the City; on July 24, it entered a written order to that effect. Cotton appealed the summary judgment to this court.

Cotton later filed a CR 60(b) motion to vacate the summary judgment, asserting, among other things, that she was unaware of the June 26 hearing date. In response, the City's attorney declared that when the City received a copy of the trial court's June 26 order, it offered to cooperate with Cotton's attorney in scheduling a rehearing. But Cotton's attorney rejected the offer.

At the CR 60(b) hearing, the trial court reasoned it would be appropriate and efficient to reconsider the summary judgment on the merits. Cotton, citing RAP 7.2(e), urged the court to do so. The City objected, urging the trial court to consider the CR 60(b) issues only and leave the summary judgment for resolution on appeal.

The trial court, in effect, engaged in a hybrid procedure. It asked Cotton to "submit affidavits containing all additional information she is requesting that the Court consider on summary judgment within 14 days." Cotton responded by resubmitting her previous exhibits attached to a new affidavit. She also submitted a declaration from her former counsel, James Dixon, who stated that both parties understood the summary judgment hearing was to be held on July 24.

The trial court denied the CR 60(b) motion, reasoning that the doctrine of estoppel in pais barred Cotton's quo warranto claim. Cotton filed a second appeal, challenging the order denying her CR 60(b) motion. We consolidated the two appeals.¹

I. MOTION TO VACATE

In reviewing the trial court's denial of the CR 60(b) motion to vacate, we apply an abuse of discretion standard. Carpenter v. Elway, 97 Wash.App. 977, 985, 988 P.2d 1009 (1999); In re Marriage of Dugan-Gaunt, 82 Wash.App. 16, 18, 915 P.2d 541 (1996); Pybas v. Paolino, 73 Wash.App. 393, 399, 869 P.2d 427 (1994). "A trial court abuses its discretion if it exercises it on untenable grounds or for manifestly unreasonable reasons." Carpenter, 97 Wash.App. at 985, 988 P.2d 1009 (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)).

Cotton first complains that the trial court erred in "sua sponte" continuing the summary judgment hearing from June 5 to June 19, 1998. But the record shows counsel for both parties agreed to this continuance. Thus, this claim is without merit.

Second, Cotton contends that the trial court erred in considering the City's untimely filed summary judgment motion. The gravaman of her argument is that the late filing precluded her from filing a response brief. But Cotton did not object to the late filing or move for a continuance to allow more time to file a reply brief. Consequently, this argument is also unpersuasive.

Third, Cotton argues that the trial court should have vacated the judgment under CR 60(b)(11) because she did not give her attorney express authorization to sign the summary judgment order. But there is no indication that the attorney's signature as to the form of the summary judgment order resulted in a waiver of any appealable issues or bound Cotton to any stipulated settlement. See In re Matter of Miller, 95 Wash.2d 453, 454-55, 625 P.2d 701 (1981)

(attorney signed stipulated money judgment despite lack of authorization); Morgan v. Burks, 17 Wash.App. 193, 199, 563 P.2d 1260 (1977) (vacating order of dismissal under CR 60 justified where attorney bound clients to settlement and dismissal without authority to do so). Consequently, this argument is unpersuasive as well.

Fourth, Cotton complains that she did not receive a copy of the July 24 summary judgment order in time to file a motion for reconsideration under CR 59(b).² But even assuming this is accurate, she did not move for reconsideration when she finally did receive the copy. Further, the trial court neutralized any prejudice when it allowed Cotton to file additional affidavits and again when it reviewed the merits of the underlying summary judgment motion. In effect, the trial court treated the CR 60(b) motion as if it were also a CR 59 motion for reconsideration.

Fifth, Cotton complains that the trial court relied on issues raised in the summary judgment motions to decide the CR 60(b) motion. But Cotton urged the trial court to do so and took advantage of the trial court's invitation to file additional affidavits. If there was any error, it was clearly invited. See State v. Wakefield, 130 Wash.2d 464, 475, 925 P.2d 183 (1996)

(holding that party cannot set up error below and then complain of it on appeal).

Finally, Cotton complains that the trial court did not hear oral argument on the respective summary judgment motions. See Greenlaw v. Renn, 64 Wash.App. 499, 503, 824 P.2d 1263 (1992)

(party resisting summary judgment motion is entitled to hearing). But Cotton's counsel declined to seek a new hearing, rejecting the City's offer to cooperate in the matter. Again, the trial court's failure to reschedule a hearing was invited error. Wakefield, 130 Wash.2d at 475,

925 P.2d 183.

As the trial court twice considered and ruled on the merits of the summary judgment motions, we conclude that it did not abuse its discretion in denying the CR 60(b) motion.

II. SUMMARY JUDGMENT ON QUO WARRANTO

Cotton brought this quo warranto action under RCW 7.56. A person claiming an interest in an office, RCW 7.56.020, may bring an information in quo warranto against another person usurping, intruding upon, or unlawfully exercising or holding an office within a...