Lybbert v. Grant County, State of Wash.

Decision Date08 June 2000
Docket NumberNo. 67805-7.,67805-7.
Citation141 Wash.2d 29,1 P.3d 1124
CourtWashington Supreme Court
PartiesKay LYBBERT and Norma Lybbert, husband and wife, and the marital community composed thereof, Respondents, v. GRANT COUNTY, STATE OF WASHINGTON, Petitioner.

Leavy, Schultz & Fearing, George Fearing, John Schultz, Kennewick, John Knodell, Grant County Prosecutor, Stephen Hallstrom, Deputy, Ephrata, for Petitioner.

George Ahrend, Spokane, for Respondents.

Russell Hauge, Kitsap County Prosecutor, Shelley E. Kneip, Cassandra Noble, Deputy's, Port Orchard, for Amicus Curiae on Behalf of Washington Association of Prosecuting Attorneys.

Graham Black, Michael R. Kenyon, Issaquah, for Amicus Curiae on Behalf of Washington State Association of Municipal Attorneys. Michael King, Jodi A. McDougall, Seattle, for Amicus Curiae on Behalf of Washington Defense Trial Lawyers.

Christine O. Gregoire, Attorney General, Narda D. Pierce, Solicitor General, Maureen A. Hart, Asst., Olympia, for Amicus Curiae on Behalf of Attorney General's Office.

Bryan P. Harnetiaux, Debra Leigh Stephens, Spokane, for Amicus Curiae on Behalf of Washington State Trial Lawyers Association.

ALEXANDER, J.

Kay and Norma Lybbert brought suit against Grant County (hereinafter County) for personal injuries they allegedly sustained in an automobile accident on a Grant County road. The County thereafter moved for a summary judgment dismissing the Lybberts' suit, contending that service of process by the plaintiffs was defective. The trial court agreed with the County and dismissed the suit, concluding that the plaintiffs failed to properly serve their summons and complaint on the County within the applicable statute of limitations. The Court of Appeals reversed the trial court, holding that the County was not entitled to rely on the affirmative defense of insufficient service of process because (1) it had waived the defense and/or (2) was equitably estopped from asserting it. We granted the County's petition for review and now affirm the Court of Appeals on the basis that the County waived the defense of insufficient service of process.

The Lybberts claim that they were both injured in early 1993 when their automobile struck a hole in a Grant County road. On August 30, 1995, the Lybberts filed a summons and complaint in the Adams County Superior Court in which they sought damages from the County for the injuries they contend they sustained as a consequence of the County's alleged failure to maintain its roadway in a safe condition.1 Pursuant to RCW 4.28.080(1), the Lybberts were required to serve their summons and complaint on the County auditor.2 They mistakenly served process on the administrative assistant to the County commissioners. Nonetheless, a few days after the "service," counsel for the County filed a notice of appearance in which it was indicated that the County was not "waiving objections to improper service or jurisdiction." Clerk's Papers (CP) at 13.

For the next nine months the County acted as if it were preparing to litigate the merits of the case that the Lybberts were attempting to mount against it. For example, shortly after filing its notice of appearance the County served the Lybberts with interrogatories, requests for production, and a request for a statement setting forth general and special damages. In this discovery effort, the County made no inquiry regarding the sufficiency of the service of process. The County also associated counsel from an outside law firm and duly filed a "notice of association of counsel." CP at 15. Thereafter, one of the attorneys for the County had conversations over the telephone with the Lybberts' attorney about insurance coverage and potential mediation. During these contacts, the attorney for the County did not make any mention of an issue surrounding sufficiency of the service of process. The Lybberts' attorney claims that one of the attorneys for the County told him that the County was working on its answer to the complaint and that it would be provided "as soon as possible." CP at 30.

On February 29, 1996, the Lybberts' attorney served one of the attorneys for the County with interrogatories and a request for production of documents. One interrogatory asked the County whether it would be relying on the affirmative defense of insufficient service of process.3 In April of 1996, a County sheriff's detective, ostensibly acting on behalf of the County, contacted the Lybberts' attorney in order to ascertain what type of information the Lybberts were requesting in their interrogatories. According to an affidavit from the Lybberts' attorney, the detective said that the County would fully cooperate in providing all of the requested discovery information.

On May 6, 1996, the Lybberts responded to the County's interrogatories, as well as to its requests for production and statement of damages. On June 21, 1996, the County filed its answer to the Lybberts' complaint and asserted, for the first time, the affirmative defense of insufficient service of process. The County then filed a motion for summary judgment, based on the alleged insufficient service of process, and requested that the case against it be dismissed on the ground that the applicable statute of limitations had run on the Lybberts' claim.4 The trial court granted the County's motion and dismissed the Lybberts' complaint with prejudice. The Lybberts appealed to Division Three of the Court of Appeals. The Court of Appeals reversed the trial court, holding that the County waived the defense of insufficient service of process and was equitably estopped from asserting it. We granted the County's petition for review.

DISCUSSION
I. Scope of Review

On appeal of summary judgment, the standard of review is de novo, and the appellate court performs the same inquiry as the trial court. Nivens v. 7-11 Hoagy's Corner, 133 Wash.2d 192, 197-98, 943 P.2d 286 (1997). When ruling on a summary judgment motion, the court is to view all facts and reasonable inferences therefrom most favorably toward the nonmoving party. Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wash.2d 891, 897, 874 P.2d 142 (1994). A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ruff v. County of King, 125 Wash.2d 697, 703, 887 P.2d 886 (1995); see also CR 56(c).

The County argues that the Court of Appeals' decision, with respect to waiver and equitable estoppel, conflicts with precedent from this court as well as case law from Divisions One and Two of the Court of Appeals. The Lybberts counter that if this court concludes that the County waived the defense of insufficient service of process or is equitably estopped from asserting it, such a conclusion would be consonant with the cases from this court as well as cases from Divisions One and Two of the Court of Appeals. We discuss both equitable estoppel and waiver in turn.

II. Equitable Estoppel

The Lybberts argue here, as they did at the Court of Appeals, that the County is equitably estopped from asserting the defense of insufficient service of process. Equitable estoppel is based on the notion that "a party should be held to a representation made or position assumed where inequitable consequences would otherwise result to another party who has justifiably and in good faith relied thereon." Kramarevcky v. Department of Soc. & Health Servs., 122 Wash.2d 738, 743, 863 P.2d 535 (1993) (quoting Wilson v. Westinghouse Elec. Corp., 85 Wash.2d 78, 81, 530 P.2d 298 (1975)). The elements of equitable estoppel are: "(1) an admission, statement or act inconsistent with a claim afterwards asserted, (2) action by another in [reasonable] reliance upon that act, statement or admission, and (3) injury to the relying party from allowing the first party to contradict or repudiate the prior act, statement or admission." Board of Regents v. City of Seattle, 108 Wash.2d 545, 551, 741 P.2d 11 (1987). Where both parties can determine the law and have knowledge of the underlying facts, estoppel cannot lie. Chemical Bank v. Washington Pub. Power Supply Sys., 102 Wash.2d 874, 905, 691 P.2d 524 (1984). Equitable estoppel must be shown "by clear, cogent, and convincing evidence." Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wash.2d 816, 831, 881 P.2d 986 (1994).

We are satisfied that the Lybberts have established two of the elements of equitable estoppel. In that regard, it is readily apparent that the County acted in a way that was inconsistent with its eventual assertion of the defense of insufficient service of process. For nine months following its attorneys' appearance in response to the Lybberts' duly filed summons and complaint, the County gave multiple indications that it was preparing to litigate this case. Only after the statute of limitations appeared to have run on the Lybberts' claim did it raise the affirmative defense of insufficient service of process. Furthermore, allowing the County to assert the defense of insufficient service of process after the statute of limitations has run would be injurious to the Lybberts because they would be without a forum in which to pursue their claim against the County.

We are satisfied, though, that the Lybberts have not established that they justifiably relied on the actions of the County's counsel. We reach that conclusion because the statute governing service of process on counties is explicit in specifying that the county auditor is the person who is to be served with process. RCW 4.28.080(1). Given the clear statutory mandate to serve the county auditor, it was not at all reasonable, much less justifiable, for the Lybberts to rely on the County's failure to expressly claim, prior to the expiration of the statute of limitations, that the service upon it was ineffective. See Overhulse Neighborhood Ass'n v. Thurston...

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