Lundgren v. Upper Skagit Indian Tribe, 91622-5

CourtUnited States State Supreme Court of Washington
Citation389 P.3d 569,187 Wash.2d 857
Decision Date16 February 2017
Docket NumberNo. 91622-5,91622-5
Parties Sharline LUNDGREN and Ray Lundgren, wife and husband, Respondents, v. UPPER SKAGIT INDIAN TRIBE, Appellant.

187 Wash.2d 857
389 P.3d 569

Sharline LUNDGREN and Ray Lundgren, wife and husband, Respondents,

No. 91622-5

Supreme Court of Washington.

Argued June 9, 2016
Filed Feb. 16, 2017
Amended June 8, 2017
Reconsideration Denied June 12, 2017

David S. Hawkins, Upper Skagit Indian Tribe, 25944 Community Plaza Way, Sedro Woolley, WA, 98284-9721, Harold Chesnin, Law Office of Harold Chesnin, 1810 43rd Ave. E., Apt. 203, Seattle, WA, 98112-3282, Peter Robert Dworkin, Belcher Swanson Law Firm, P.L.L.C., 900 Dupont St., Bellingham, WA, 98225-3105, for Appellant.

Scott Martin Ellerby, Mullavey, Prout, Grenley & Foe, LLP, P.O. Box 70567, 2401 N.W. 65th St., Seattle, WA, 98127-0567, for Respondents.


187 Wash.2d 861

¶1 This case involves the relationship between in rem jurisdiction, Superior Court Civil Rule (CR) 19, and sovereign immunity. The issue is whether the Upper Skagit Indian Tribe's (Tribe) assertion of sovereign immunity requires dismissal of an in rem adverse possession action to quiet title to a disputed strip of land on the boundary of property purchased by the Tribe. The superior court concluded that because it had in rem jurisdiction, it could determine ownership of the land without the Tribe's participation. An inquiry under CR 19, as required by our cases, involves a merit-based determination that some interest will be adversely affected in the litigation. Where no interest is found to exist, especially in an in rem proceeding, nonjoinder presents no jurisdictional barriers. We find that the Tribe does not have an interest in the disputed property; therefore, the Tribe's sovereign immunity is no barrier here to this in rem proceeding. The trial court properly denied the Tribe's motion to

389 P.3d 571

dismiss and granted summary judgment to the property owner. We affirm.


¶2 Sharline and Ray Lundgren and the Tribe own adjacent properties in Skagit County, Washington. A barbed wire fence runs along the southern portion of the Tribe's land. The fence spans the width of the Tribe's lot, with a gate approximately halfway along the fence line. The land between the fence and the southern boundary of the Tribe's

187 Wash.2d 862

lot is the land at issue in this case. For ease of reference, we refer to this land as the "disputed property."

¶3 The Lundgrens bought the 10 acres of land immediately south of the disputed property in 1981. The property had been in their extended family since 1947, when Sharline Lundgren's grandmother first bought the property. The Lundgrens established that the fence on the disputed property has been in the same location since at least 1947, and that for as long as their property has been in the family, they have treated the fence as the boundary line. Since 1947, the Lundgren family exclusively has harvested timber, cleared brush, kept the fence clear of fallen trees, and treated the disputed property on the southern side of the fence as their own.

¶4 The Tribe's land had been previously owned by Annabell Brown for many decades. In 1984, she quitclaimed a 1/4 undivided interest in the property to her son David Brown. Upon her death, the rest of the property passed to her other children, Paul Brown, Vivian Jennings, and Barbara Carrell. In 2013 the Tribe bought the property from Paul Brown, Jennings, and Carrell, receiving a statutory warranty deed. The Tribe was evidently unaware of the fence when it purchased the property. The Tribe's surveyors alerted the Tribe to the presence of the fence in October 2013 while surveying the property "in an effort to take the land into Trust." Clerk's Papers (CP) at 115.

¶5 In September 2014, the Tribe notified the Lundgrens in a letter that the fence did not represent the boundary and that they were asserting ownership rights to the entire property deeded to them in 2013. The Lundgrens initiated this lawsuit in March 2015. They asked the court to quiet title in the disputed property to them and sought injunctive relief. The Lundgrens moved for summary judgment, arguing they acquired title to the disputed property by adverse possession or by mutual recognition and acquiescence long before the Tribe bought the land. The Tribe moved to dismiss under CR 12(b)(1) for a lack of subject matter jurisdiction

187 Wash.2d 863

based on the Tribe's sovereign immunity and under CR 12(b)(7),1 which requires joinder of a necessary and indispensable party under CR 19.2

389 P.3d 572

¶6 In the trial court, Judge Dave Needy denied the Tribe's motion to dismiss. The Tribe moved for direct discretionary review of this ruling. Judge Susan Cook later granted the Lundgrens' motion for summary judgment, holding the Lundgrens' "claims of title ownership by adverse possession and mutual recognition and acquiescence is established. Legal title to the disputed property is owned by Plaintiffs." CP at 159. Judge Cook noted that the fence was not hidden. Both parties recognized the fence as the boundary line and that it had clearly been on the property for much longer than the necessary 10 years. She noted that the Lundgrens' labor on the property was established by

187 Wash.2d 864

numerous witness declarations. Importantly, she stated that "this is as clear as a case as I've had on the bench." Verbatim Report of Proceedings (VRP) (May 7, 2015) at 20. The Tribe amended its motion for discretionary review to seek review of both Judge Needy's and Judge Cook's orders. We accepted direct review. See Order, Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 (Wash. Feb. 10, 2016).


¶7 The superior court concluded that because it had in rem jurisdiction, it could determine ownership of the land without the Tribe's participation. See VRP (Apr. 24, 2015) at 24. While it recognized it could not join the Tribe against its will, the court found the Tribe's attempt to use CR 19 to be "contrary to common sense, fairness, and due process for all involved." VRP (Apr. 24, 2015) at 32.

¶8 The Tribe argues that dismissal is required for two reasons. First, it argues the superior court lacks jurisdiction because the Tribe has sovereign immunity from suit, which neither the Tribe nor Congress has waived for quiet title actions. See Appellant's Opening Br. at 10. The Tribe differentiates between an in rem claim and in rem jurisdiction, asserting that "jurisdiction in this case can only lie if the Court has both subject matter jurisdiction and personal jurisdiction over the claims and parties. Thus, the mere fact of an in rem claim does not affect or somehow avoid threshold jurisdictional questions such as sovereign immunity." Appellant's Reply Br. at 5. Second, it argues that even if the lower court had in rem jurisdiction to hear the case, CR 19 requires dismissal because the Tribe is a necessary and indispensable party that cannot be joined due to sovereign immunity. See Appellant's Opening Br. at 24-30; Appellant's Reply Br. at 1.

¶9 The Lundgrens acknowledge that the Tribe has sovereign immunity. Resp'ts' Br. at 6 ("The Lundgrens admit that the Tribe is entitled to sovereign immunity."). They argue

187 Wash.2d 865

that because the court has in rem jurisdiction over the quiet title action, personal jurisdiction over the Tribe is unnecessary and its immunity is irrelevant. They also assert that because they obtained title by adverse possession before the Tribe purchased the property, "[t]he Tribe's sovereign immunity does not deprive the court of jurisdiction over land the Tribe never owned." Resp'ts' Br. at 23. With regard to CR 19, the Lundgrens argue, "[b]ecause the Court has in rem jurisdiction, sovereign immunity is not a bar to jurisdiction, the Tribe is not an indispensable party, and Civil Rule 19 does not prevent the case from proceeding." Resp'ts' Br. at 29.

I. In Rem Jurisdiction

¶10 Superior courts in Washington have jurisdiction to exercise in rem jurisdiction to settle disputes over real property.3 Quiet title actions are proceedings in rem. Phillips v. Tompson, 73 Wash. 78, 82, 131 P. 461 (1913) ; see also 14 KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE § 5:1, at 155 (2d ed. 2009). In such proceedings, the court has jurisdiction over the property itself. See TEGLAND , supra. Personal jurisdiction over the landowner is not required. In re Acquisition of Land & Other Prop. by City of Seattle, 56 Wash.2d 541, 544-45, 353 P.2d 955 (1960) ; see also

389 P.3d 573

In re Condemnation Petition City of Lynnwood, 118 Wash.App. 674, 679 & n.2, 77 P.3d 378 (2003) (noting that quiet title actions are proceedings in which the court can exercise in rem jurisdiction, and that "[c]ourts may have jurisdiction to enter judgment with respect to property ... located within the boundaries of the state, even if personal jurisdiction has not been obtained over the persons affected by the judgment").

¶11 A court exercising in rem jurisdiction is not necessarily deprived of its...

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