Renner v. City of Marysville

• Decision Date: 30 June 2008
• Docket Number: No. 60509-7-I.,60509-7-I.
• Citation: 187 P.3d 283,145 Wn. App. 443
• Court: Washington Court of Appeals
• Parties: Marc Stephen RENNER, Appellant, v. CITY OF MARYSVILLE, Respondent.

187 P.3d 283

145 Wn. App. 443

Marc Stephen RENNER, Appellant, v. CITY OF MARYSVILLE, Respondent.

No. 60509-7-I.

Court of Appeals of Washington, Division 1.

June 30, 2008.

Robert S. Bryan, Shafer Moen & Bryan PS, Seattle, WA, for Appellant.

Shannon Mary Ragonesi, Keating Bucklin & McCormack, Seattle, WA, for Respondent.

BECKER, J.

¶ 1 At issue in this appeal is the interpretation and application of the claim filing statute, RCW 4.96.020, to appellant Marc Renner's claim against the City of Marysville for wrongful termination of employment. The current statute requires a statement of the claimant's actual residence at the time of presenting the claim and for a period of six months before the claim arose. We hold that a bona fide attempt to meet this requirement substantially complies with the statute so long as the information provided enables the government entity, by reasonable diligence, to determine where the claimant resided at the relevant times. The statute also requires a statement of the amount of damages claimed. Renner listed the elements of his damage claim while stating that the amount was "undetermined." Under the circumstances of this case we cannot say this was insufficient as a matter of law. The order granting the city's motion for summary judgment is reversed.

¶ 2 Marc Renner worked for the City of Marysville as the computer network administrator. The city discharged him on December 2, 2003. Renner claims that he was wrongfully discharged because he expressed interest in having his job converted to a union position. The city's view is that Renner only approached the union in an eleventh hour attempt to insulate himself from termination for a well-documented history of misconduct and insubordination.

¶ 3 A statute provides that an action shall not be commenced against any local governmental entity for damages arising out of tortious conduct unless a claim is first presented to the governing body of the entity and 60 days have elapsed. RCW 4.96.020. The general purpose of the claim-filing statute is "to allow government entities time to investigate, evaluate, and settle claims" before they are sued. Medina v. Public Util. Dist. No. 1, 147 Wash.2d 303, 310, 53 P.3d 993 (2002). The claim must name the persons involved, describe the injury or damage, and provide the time, location, and circumstances in which the injury or damage occurred. Pertinent to this case, the claim "shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose." RCW 4.96.020(3).

¶ 4 Using a form provided by the City of Marysville, Renner filed a claim for damages on May 26, 2005. He filled in the spaces asking for the claimant's name, residence, and home and work telephone numbers. In the space supplied for his place of residence, Renner filled in "6811 54^th Pl. N.E. Marysville, WA 98270." Where the form left a blank for the damages claimed "in the sum of $____," Renner wrote, "undetermined pending further investigation and discovery."¹ The form directed the claimant to describe the occurrence. Renner attached a response that stated, "Wrongful termination of more than five years of employment as City of Marysville and Marysville Fire District Network Administrator." The form also directed the claimant to "Attach copies of all documentation relating to expenses, injuries, losses, and/or estimates for repair." Renner attached a response that stated, "Wages and benefits as well known to the city since termination plus front pay, emotional damages, costs, fees and such other damage as determined."²

¶ 5 Renner sued the city for wrongful termination on October 21, 2005. Among other things, his complaint alleged that he had filed a proper claim in a timely manner. At the same time he served the city with a set of discovery requests. On December 6, the city served Renner with a set of objections to his discovery requests. On December 12, the city answered the complaint. The answer admitted that Renner had filed a claim but denied that the claim was either proper or timely. The answer also asserted Renner's failure to comply with the requirements of RCW 4.96 as an affirmative defense.

¶ 6 On February 3, 2006, the city sent Renner a document responding to his discovery requests. Renner's attorney admits that he did not read this document at the time because it was captioned "Objections" and he assumed that, like the first set of objections, it contained no meaningful information. This document did maintain the city's position that Renner's requests were "vague," "burdensome," and "overly broad." But it also included substantive responses, including the facts on which the city was basing its affirmative defense under RCW 4.96: "Plaintiff failed to comply with RCW 4.96 as he did not state an amount of damages or his residences for six months prior to accrual of his claim."³

¶ 7 On July 19, 2007, the city successfully moved for summary judgment dismissal of Renner's wrongful termination claim on the basis that Renner's claim did not comply with RCW 4.96. Renner appeals.

¶ 8 On appeal of summary judgment, the standard of review is de novo, and the appellate court performs the same inquiry as the trial court. When ruling on a summary judgment motion, the court is to view all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. 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. Lybbert v. Grant County, 141 Wash.2d 29, 34, 1 P.3d 1124 (2000).

¶ 9 The city argues Renner's claim failed to comply with the statute in two ways. First, he did not specifically state where he had resided for the six months prior to the time his claim arose. Second, he did not state an "amount" of damages claimed.

¶ 10 Renner initially contends the city may not assert failure to comply with RCW 4.96.020 as a defense because the city's own conduct affirmatively misled him to believe his claim was adequate. He points out that the claim form supplied by the city asked only for his current residential address; it did not mention that he was to provide any previous address. He contends the city violated CR 9(c) when answering his complaint by asserting the affirmative defense of failure to comply with RCW 4.96 without alerting him to the specifics of how he failed to comply. And he argues that the city concealed its intention to rely on RCW 4.96.020(3) by "burying" the facts underlying that defense in the second set of objections to his discovery request.

¶ 11 Renner invokes the doctrines of estoppel and waiver, relying primarily on Dyson v. King County, 61 Wash.App. 243, 809 P.2d 769 (1991). In Dyson, the county answered the claimant's complaint without raising a claim-filing defense. This was a violation of CR 9(c)'s requirement to plead a denial of performance "specifically and with particularity." Dyson, 61 Wash.App. at 245, 809 P.2d 769. The county then proceeded to defend the case for almost two years while awaiting the running of the statute of limitations. Under these circumstances we held that the county had engaged in affirmatively misleading action and was thereby "estopped" from raising the claim-filing defense after the statute of limitations ran. Dyson, 61 Wash.App. at 246, 809 P.2d 769.

¶ 12 It is now clear under Lybbert that the doctrine to be applied when a governmental entity engages in such conduct is waiver, not estoppel. In Lybbert, the plaintiffs mistakenly served a summons and complaint upon the administrative assistant to the county commissioners when, by statute, they should have served the county auditor. The county appeared and for the next nine months acted as if it were preparing to litigate the merits of the case, without making any mention of a problem with sufficiency of service of process. The Lybberts served interrogatories asking the county if it intended to rely on the affirmative defense of insufficient service of process. The county did not answer the interrogatories. After the statute of limitations had run, the county answered the Lybberts' complaint and asserted, for the first time, the affirmative defense of insufficient service of process. The county then obtained summary judgment dismissal.

¶ 13 The Supreme Court reversed, but not on grounds of estoppel. 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. Where both parties can determine the law and have knowledge of the underlying facts, estoppel cannot lie. Lybbert, 141 Wash.2d at 35, 1 P.3d 1124. Given the clear statutory mandate to serve the county auditor, the court reasoned that it was not at all reasonable, much less justifiable, for the Lybberts to rely on the county's failure to assert the affirmative defense. Lybbert, 141 Wash.2d at 36, 1 P.3d 1124.

¶ 14 The common law doctrine of waiver, on the other hand, can preclude a defendant from asserting a defense such as insufficient service of process if it is inconsistent with the defendant's previous behavior, or if the defendant's counsel has been dilatory in asserting the defense. Lybbert, 141 Wash.2d at 38, 1 P.3d 1124. In Lybbert, the county waived the defense by failing to raise it in its answer or responsive pleading, by engaging in discovery over the course of several months, and by asserting the defense for the first time after the statute of limitations expired. Lybbert, 141 Wash.2d at 42, 1 P.3d 1124. The court found it particularly significant that the Lybberts served the county with interrogatories designed to ascertain whether the...