Mitchell v. Kitsap County, 12750-4-II

• Decision Date: 13 September 1990
• Docket Number: No. 12750-4-II,12750-4-II
• Parties: James A. MITCHELL and Jeanne E. Mitchell, husband and wife, Appellants, v. KITSAP COUNTY, a municipal corporation; and Jack Eyler and Jerry Arnold, d/b/a Peninsula Landholders, a partnership, Respondents.
• Court: Washington Court of Appeals

Page 177

59 Wn.App. 177

797 P.2d 516

James A. MITCHELL and Jeanne E. Mitchell, husband and wife, Appellants, v. KITSAP COUNTY, a municipal corporation; and Jack Eyler and Jerry Arnold, d/b/a Peninsula Landholders, a

partnership, Respondents.

No. 12750-4-II.

Court of Appeals of Washington,

Division 2.

Sept. 13, 1990.

Mark A. Rowley and Lori Salzarulo, Garvey Schubert & Barer, Seattle, for appellants.

C. Danny Clem, Pros. Atty., and Douglas B. Fortner, Deputy Pros. Atty., Port Orchard, for Kitsap County.

Paul R. Cressman, Jr. and Kerry S. Bucklin, Short Cressman & Burgess, Seattle, for Jack Eyler, Jerry Arnold and Peninsula Landholders.

ALEXANDER, Chief Judge.

James and Jeanne Mitchell appeal the Kitsap County Superior Court's denial of their motion for relief from a judgment. They contend that the judge pro tempore who granted the judgment against them and in favor of Kitsap County and Peninsula Landholders was without jurisdiction to enter the judgment because neither the Mitchells nor their attorney consented to her appointment as a judge pro tempore. We reverse.

In 1987, Kitsap County approved development plans submitted by Peninsula Landholders. Shortly thereafter, James and Jeanne Mitchell filed a complaint in the Kitsap County Superior Court in which they named Kitsap County and Peninsula Landholders (collectively referred to as "respondents") as defendants. In their complaint, the Mitchells asked the court to set aside all approvals of Peninsula's development.

The respondents moved for summary judgment. At that time, the Mitchells were represented by an attorney; however, their attorney did not respond to the summary judgment motion nor did he inform the Mitchells that it had been filed. A hearing on the motion was set by the respondents and the Mitchells' attorney failed to appear at the hearing. The motion was heard by attorney Karlyn Haberly who, ostensibly, was serving as a superior court judge pro tempore, pursuant to an appointment by a Kitsap County Superior Court judge. Although all of the respondents had given consent in writing to Haberly's appointment, neither the Mitchells nor their attorney had manifested their consent to her appointment either orally or in writing. Haberly granted the respondents' summary judgment motion and, in addition, ordered the Mitchells to pay attorney's fees of $250 to the respondents. The Mitchells' attorney did not immediately file an appeal nor did he move for reconsideration. Indeed, the Mitchells did not become aware that a judgment had been entered against them until more than 5 months after the summary judgment order was entered. ¹ The Mitchells then obtained another attorney who filed motions for relief from the judgment and for reconsideration. These motions were denied and this appeal followed.

The Mitchells argue on appeal that the judgment against them is void because they did not consent to Haberly's appointment as a judge pro tempore and that she was, therefore, without jurisdiction to grant the summary judgment. They contend that their CR 60(b)(5) motion for relief from the judgment should have been granted. The respondents, on the other hand, argue that (1) the Mitchells and/or their attorney consented to Haberly's appointment as a judge pro tempore, (2) the Mitchells are estopped from arguing lack of consent, (3) the summary judgment should be affirmed on the alternate ground that the Mitchells failed to prosecute their claim, and (4) consent of all parties is not required in summary judgment proceedings.

The Superior Court Civil Rules provide that a motion for relief from judgment may be granted where the judgment is void. CR 60(b)(5). Vacation of a judgment under CR 60(b) is within the discretion of the trial court and a trial court's judgment in this regard will only be overturned where it plainly appears that its discretion has been abused. State v. Santos, 104 Wash.2d 142, 145, 702 P.2d 1179 (1988). However, when the trial court is faced with a void judgment, it has no discretion and the judgment must be vacated whenever the lack of jurisdiction comes to light. Allied Fidelity Ins. Co. v. Ruth, 57 Wash.App. 783, 790, 790 P.2d 206 (1990). We must, therefore, determine whether the judgment entered by the pro tempore judge is void.

RCW 2.08.180 provides, in pertinent part, as follows:

A case in superior court ... may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court, and (4) sworn to try the case; ... ²

Karlyn Haberly is a member of the Washington Bar Association and she was appointed by a superior court judge to serve as a judge pro tempore. Haberly also signed an oath to try this case. Furthermore, the respondents consented to Haberly's appointment. The Mitchells did not, however, consent to her appointment and neither did their attorney. Consent is an essential requirement for the valid appointment of a judge pro tempore. Burton v. Ascol, 105 Wash.2d 344, 351, 715 P.2d 110 (1986). Consent must be given in writing or orally in open court. National Bank of Wash. v. McCrillis, 15 Wash.2d 345, 356, 130 P.2d 901 (1942); State v. Sain, 34 Wash.App. 553, 663 P.2d 493 (1983). If a party has not consented to the appointment of a judge pro tempore, the appointed pro tempore judge lacks jurisdiction. Burton v. Ascol, supra. Without jurisdiction, the entire proceedings before the judge pro tempore are void. McCrillis, 15 Wash.2d at 359, 130 P.2d 901.

The respondents' argument that the Mitchells consented to Haberly's appointment by not appearing at the hearing on the summary judgment motion is without merit. While our Supreme Court has held that a party may waive the statutory requirement that consent be given in writing, State ex rel. Cougill v. Sachs, 3 Wash. 691, 29 P. 446 (1892), no case has gone as far as respondents' would have us go. Respondents cite Burton v. Ascol, supra, and argue that the Mitchells "excused themselves" from participation in the lawsuit and that, by doing so, they consented to Haberly serving as a pro tempore judge. In Burton, the Supreme Court was faced with a case where an attorney for a plaintiff appeared at the beginning of the trial and asked to be excused from the proceedings because "he saw no reason to participate in the trial himself because [the other plaintiff] was actively defending the counterclaim." Burton, 105 Wash.2d at 346, 715 P.2d 110. There was no objection from any of the attorneys in that case and the trial court granted the request to be excused. Thereafter, all other attorneys appearing in the case, including the attorney for the other plaintiff, stipulated to the appointment of a judge pro tempore. The Supreme Court held that when the attorney excused himself from the case and, in essence, turned the case over to counsel for a co-plaintiff, that attorney delegated his clients authority to consent to the appointment of a judge pro tempore. Consequently, the court refused to accept the challenge to the judge pro tempore's jurisdiction after the authority to so object had been surrendered. Burton, 105 Wash.2d at 352, 715 P.2d 110.

The respondents argue that the Mitchells and their attorney similarly "excused themselves" from the hearing and in doing so, consented to have the case heard by a judge pro tempore. We do not find Burton analogous. Neither the Mitchells nor their attorney sought to excuse themselves from the proceedings. Indeed, none of them appeared at the hearing and, consequently, they had no opportunity to affirmatively excuse themselves from the case, as was the situation in Burton. In our judgment, a party who fails to appear at a hearing cannot be said to have consented to the appointment of a judge pro tempore by virtue of his or her failure to appear.

This case is more akin to National Bank of Wash. v. McCrillis, supra. There, the guardian of an insane man brought an action on behalf of the ward against the ward's wife to annul their marriage. The guardian filed a motion for default judgment because the defendant failed to appear after being served. The motion was granted by a pro tempore judge. Both parties acknowledged that the defendant did not consent, either orally or in writing, to the appointment of the pro tempore judge. The Supreme Court set aside the default judgment, concluding that the pro tempore judge was without jurisdiction to enter the default judgment because the defendant had not given consent to the appointment.

The respondents argue that McCrillis is not applicable because the Mitchells, unlike the defendant in McCrillis, appeared in the case. Indeed, they point out that the Mitchells commenced the suit, and were at all times represented by counsel. Respondents' argument blurs the issue. The critical fact is consent to the appointment. Whether the nonmoving party instituted the action, appeared, and was represented by counsel is immaterial if the appointment of a pro tempore judge has not received the consent of all parties.

The respondents also argue that the...