Eubanks v. Brown

• Decision Date: 18 September 2012
• Docket Number: No. 42329–4–II.,42329–4–II.
• Citation: 285 P.3d 901
• Parties: Robin EUBANKS and Erin Gray, Respondents, v. David BROWN, individually and on behalf of his marital community, Appellant, Klickitat County, Klickitat County Prosecuting Attorney's Office, Defendants.
• Court: Washington Court of Appeals

285 P.3d 901

Robin EUBANKS and Erin Gray, Respondents,

v. David BROWN, individually and on behalf of his marital community, Appellant,Klickitat County, Klickitat County Prosecuting Attorney's Office, Defendants.

No. 42329–4–II.

Court of Appeals of Washington, Division 2.

Sept. 18, 2012.

Michael Early Mcfarland Jr., Attorney at Law, Spokane, WA, for Petitioner.

Francis Stanley Floyd, Floyd Pflueger & Ringer PS, Seattle, WA, for Defendant.

Karen Suzette Lindholdt, Karen S. Lindholdt, PLLC, Marletta Giles–Ward, Colton Ward PLLC, Spokane, WA, Philip Albert Talmadge, Emmelyn Hart, Talmadge/Fitzpatrick, Tukwila, WA, for Respondent.

QUINN–BRINTNALL, J.

¶ 1 David Brown appeals the Clark County Superior Court's denial of his motion for a change of venue, arguing that he had the right under Washington's venue statutes to have the action against him commenced in Klickitat County. Finding no error, we affirm.

FACTS

¶ 2 Brown is a former deputy prosecuting attorney for Klickitat County. During his employment with the county, he had supervisory authority over administrative assistants Robin Eubanks and Erin Gray. In 2010, Eubanks and Gray sued Brown, Klickitat County, and the Klickitat County Prosecuting Attorney's Office, alleging that Brown sexually harassed them while they worked in the prosecutor's office. Noting that they were suing Brown individually, they alleged that he regularly sat in their shared office with his pants unzipped and his legs spread open on his desk; that he positioned himself in the office doorway so that they would need to rub against him when they left; that he licked his lips constantly while talking to them; that he stared at them while they worked and followed them around the office; that he gave unwanted gifts to Eubanks; and that he stared at Gray's breasts during conversations.

¶ 3 Eubanks and Gray filed their lawsuit in Benton County, apparently believing that they could sue all parties in any adjoining county. When Brown's attorney informed them that venue in Benton County was not proper, they moved to change venue to. Clark County, and the Benton County Superior Court granted their motion.

¶ 4 Brown then moved to dismiss the complaint or to transfer venue of the claims against him to Klickitat County. Brown argued that although venue as to the county was proper in Clark County, he had the right as a public officer to be sued in Klickitat County. The Clark County Superior Court denied his motion, finding that venue was proper in Clark County. When Division Three of this court filed a decision appearing to support Brown's position, he filed a CR 60(b)(11) motion to vacate the order denying his motion to dismiss or to transfer venue, but the trial court denied that motion as well. We granted Brown's motion for discretionary review.

ANALYSIS

Venue for Action Against County and Deputy Prosecuting Attorney

¶ 5 At the outset, we disagree with the respondents' assertion that the standard of review is abuse of discretion. Although a decision to change venue that properly exists is reviewed for abuse of discretion, the question whether venue should be changed because the complaint has not yet been brought in the proper county is a legal question that we review de novo. Moore v. Flateau, 154 Wash.App. 210, 214, 225 P.3d 361,review denied,168 Wash.2d 1042, 233 P.3d 889 (2010).

¶ 6 Venue in Washington is governed by statute. See Shoop v. Kittitas County, 108 Wash.App. 388, 396, 30 P.3d 529 (2001) (in contrast to subject matter jurisdiction of the superior court, venue is appropriate subject for legislation), aff'd,149 Wash.2d 29, 65 P.3d 1194 (2003). Venue rules limit a plaintiff's choice of forum to ensure that the lawsuit's locality has some logical relationship to the litigants or to the dispute's subject matter. Shoop, 108 Wash.App. at 396, 30 P.3d 529. But where those rules provide several places where venue may be proper, “the choice lies with the plaintiff in the first instance.” Baker v. Hilton, 64 Wash.2d 964, 965, 395 P.2d 486 (1964); see also Russell v. Marenakos Logging Co., 61 Wash.2d 761, 765, 380 P.2d 744 (1963) (plaintiffs should not be allowed to select forums indiscriminately).

¶ 7 It is generally accepted that specific venue statutes control over general venue statutes. Sim v. Wash. State Parks & Recreation Comm'n, 90 Wash.2d 378, 382–83, 583 P.2d 1193 (1978); Hickey v. City of Bellingham, 90 Wash.App. 711, 716, 953 P.2d 822,review denied,136 Wash.2d 1013, 966 P.2d 1278 (1998). Three venue statutes are at issue in this case. The First is the default provision found in RCW 4.12.025(1), which states that “[a]n action may be brought in any county in which the defendant resides, or, if there be more than one defendant, where some one of the defendants resides at the time of the commencement of the action.” See Moore, 154 Wash.App. at 214–15, 225 P.3d 361 (recognizing RCW 4.12.025(1) as default venue provision for civil actions in Washington); Hickey, 90 Wash.App. at 716, 953 P.2d 822 (describing RCW 4.12.025 as the general venue statute). Under RCW 4.12.025(1), the legislature has decreed that the defendant has a right to have an action against him commenced in the county of his residence, except under specific circumstances governed by other statutes. Russell, 61 Wash.2d at 765, 380 P.2d 744.

¶ 8 The two more specific venue directives are found in RCW 36.01.050 and RCW 4.12.020. RCW 36.01.050(1) provides that all actions against a county “may be commenced in the superior court of such county, or in the superior court of either of the two nearest judicial districts.” RCW 4.12.020 provides that actions against a public officer for acts done by him in virtue of his office “shall be tried in the county where the cause, or some part thereof, arose.”

¶ 9 Brown argues that RCW 4.12.020(2) is the most specific venue statute applicable in this context and requires the action against him to be brought in Klickitat County, where the cause of action concerning acts done by him by virtue of his public office arose. As support, he cites Division Three's recent decision in Youker v. Douglas County, 162 Wash.App. 448, 258 P.3d 60,review denied,173 Wash.2d 1002, 268 P.3d 942 (2011).

¶ 10 Alleging malicious prosecution, false arrest, and related claims, the plaintiff in Youker sued Douglas County and two of its deputies in Chelan County Superior Court. 162 Wash.App. at 453, 456, 258 P.3d 60. The Chelan court granted a motion to transfer venue to Douglas County, reasoning that although RCW 36.01.050 provided for three acceptable venues in which to sue the county, RCW. 4.12.020(2) specified that Douglas County was the only proper venue with respect to the deputies. Youker, 162 Wash.App. at 457–58, 258 P.3d 60. Division Three affirmed, holding that the statutes applied as written and did not conflict. Youker, 162 Wash.App. at 459–60, 258 P.3d 60.

¶ 11 As support, the court cited Roy v. City of Everett, 48 Wash.App. 369, 738 P.2d 1090 (1987). In Roy, the plaintiff brought suit in King County against Snohomish County, five Everett police officers, and several other defendants, and the trial court denied the officers' motion to transfer venue to Snohomish County. 48 Wash.App. at 370, 738 P.2d 1090. Division One of this court reversed, holding that the officers had the right to have the action against them commenced in Snohomish County under both RCW 4.12.020(2) and .025(1). Roy, 48 Wash.App. at 371–72, 738 P.2d 1090.

¶ 12 We do not see these cases as controlling because, unlike the deputies in Youker and the officers in Roy, Brown is not being sued for actions done by virtue of his office. The deputies in Youker were sued for their actions in arresting and incarcerating the plaintiff. 162 Wash.App. at 453–56, 258 P.3d 60. The officers in Roy were sued for failing to protect the plaintiffs from their assailant. 48 Wash.App. at 370, 738 P.2d 1090. These actions and inactions clearly were related to the official duties of these public officers. Here, however, Brown is being sued individually for personal misconduct in a workplace and not for any failure concerning his official duties. See Robel v. Roundup Corp., 148 Wash.2d 35, 54, 59 P.3d 611 (2002) (where employee's acts are directed toward personal sexual gratification, employee's conduct falls outside scope of his employment); Thompson v. Everett Clinic, 71 Wash.App. 548, 554, 860 P.2d 1054 (1993) (doctor's sexual assaults emanated from personal motive for sexual gratification and were not attributable to clinic), review denied,123 Wash.2d 1027, 877 P.2d 694 (1994); see also State ex rel. Hand v. Superior Court of Grays Harbor County, 191 Wash. 98, 107, 71 P.2d 24 (1937) (where National Guard officers were sued as individuals, predecessor to RGW 4.12.020(2) did not control venue).

¶ 13 Brown argues in the alternative that even if RCW 4.12.020(2) does not apply, RCW 4.12.020(3) requires venue to be changed to Klickitat County because that is the only county where any of the defendants reside. Under RCW 4.12.020(3), a plaintiff seeking damages for personal injury “shall have the option of suing either in the county in which the cause of action or some part thereof arose, or in the county in which the defendant resides, or if there be more than one defendant, where some one of the defendants resides, at the time of the commencement of the action.” ¹ Before its amendment in 2001, this provision addressed only damages arising from motor vehicle accidents; the amendment broadened its scope to include all injury actions. See former RCW 4.12.020(3) (1941); Moore, 154 Wash.App. at 215–16, 225 P.3d 361.

¶ 14 Eubanks and Gray argue that RCW 36.01.050 and RCW 4.12.020(3) can and should be reconciled in a manner that allows their claims against both Brown and the county to be commenced in Clark County. As support, they cite Cossel v. Skagit County, 119 Wash.2d 434, 834 P.2d 609 (1992), overruled by Shoop v. Kittitas County, 149 Wash.2d 29, 65 P.3d...