Wilson v. City of Seattle, 60079-1

• Decision Date: 09 December 1993
• Docket Number: No. 60079-1,60079-1
• Citation: 863 P.2d 1336,122 Wn.2d 814
• Court: Washington Supreme Court
• Parties: Robert WILSON, John E. Tardiff, and Wilson Realty Exchange, Inc., a Washington corporation, Appellants, v. The CITY OF SEATTLE and Maple Leaf Community Council, Respondents. En Banc

Page 814

122 Wn.2d 814

863 P.2d 1336

Robert WILSON, John E. Tardiff, and Wilson Realty Exchange Inc., a Washington corporation, Appellants, v. The CITY OF SEATTLE and Maple Leaf Community Council, Respondents.

No. 60079-1.

Supreme Court of Washington,

En Banc.

Dec. 9, 1993.

Richard B. Sanders, Bellevue, for appellants.

Mark H. Sidran, City Atty. and Helaine Honig, Asst. City Atty., Seattle, for respondents.

JOHNSON, Justice.

At issue is whether appellants must file a claim for damages with the City of Seattle (Seattle or City) pursuant to Seattle Municipal Code (SMC) 5.24.005 as a condition precedent to bringing an action against the City under RCW 64.40.020. King County Superior Court dismissed appellants' lawsuit for failure to first file such a claim. We reverse.

I

On August 25, 1989, appellants Robert Wilson, John Tardiff, and Wilson Realty Exchange, Inc. (hereafter Wilson) applied to the Seattle Department of Construction and Land Use (DCLU) for a master use permit to short plat their property into two parcels of land. On January 22, 1990, DCLU conditionally granted the master use permit application. Maple Leaf Community Council appealed the City's approval of the permit to Seattle's hearing examiner. After the expiration of the applicable appeal period but before the hearing, DCLU determined the master use permit for the short plat had been issued in error and withdrew its approval on March 29, 1990. As a result, the examiner canceled the hearing scheduled for May 2, 1990 over Wilson's objection.

On May 2, 1990, Wilson filed a complaint against Seattle, seeking equitable relief and monetary damages for the City's failure to promptly process the short plat application. Six claims were asserted, including a claim under RCW 64.40.020, a statutorily created cause of action for damages to property rights caused by governmental actions in processing permit applications. In its answer, Seattle asserted an affirmative defense that Wilson had failed to first file a claim with the City pursuant to SMC 5.24.005.

Seattle moved for partial summary judgment, and Wilson moved for voluntary nonsuit to dismiss all of its claims except the cause of action under RCW 64.40.020. King County Superior Court dismissed all of the claims, including the one under RCW 64.40.020, for failure to comply with SMC 5.24.005. Wilson appealed. This court accepted certification from the Court of Appeals and granted direct review.

II

RCW 64.40 creates a statutory cause of action and remedy for owners of property interests damaged by agency actions in processing land use permit applications. The statute states:

Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or relief from a failure to act within time limits established by law....

RCW 64.40.020(1). "Agency" is defined as the State of Washington and any of its political subdivisions, including cities such as Seattle, exercising regulatory authority or control over the use of real property in the state. RCW 64.40.010(1). "Damages" mean reasonable expenses and losses incurred between the time a cause of action arises and relief is granted, but does not include speculative damages, diminution in value or damage to real property. RCW 64.40.010(4).

Seattle contends that before Wilson can file a cause of action under RCW 64.40.020 for damages caused by Seattle's delay in processing its permit application, Wilson must file a claim with the City for damages pursuant to SMC 5.24.005. The ordinance states in part:

A. No action shall be commenced against the City in which monetary damages are being claimed until a written Claim for Damages has been presented to and filed with the City Clerk.

....

C. A lawsuit based upon the allegations of a Claim for Damages may not be instituted against the City within sixty (60) days of the filing of such claim, unless the applicable statute of limitations will expire within that period of time. The requirements of this section shall not affect in any manner the commencement and running of any applicable statute of limitations.

SMC 5.24.005.

The issue in this case turns on the doctrine of sovereign immunity, which flows from the medieval English concept that one could not sue the King in his own courts. See 57 Am.Jur.2d Municipal, County, School, and State Tort Liability §§ 1-2 (1988). The general principle that the sovereign cannot be sued without its own consent applies with full force to states. 72 Am.Jur.2d States, Territories, and Dependencies § 99 (1974). The immunity of a municipality, however, derives solely from the state as sovereign, 57 Am.Jur.2d, supra at § 6, and the municipality thus has only as much immunity as its sovereign. Kelso v. Tacoma, 63 Wash.2d 913, 916-17, 390 P.2d 2 (1964) (citing Hutton v. Martin, 41 Wash.2d 780, 784, 252 P.2d 581 (1953)).

Municipal claims ordinances, such as SMC 5.24.005, are in part an exercise of sovereign immunity in that they place limitations or qualifications on the ability of individuals to sue the government. See Daggs v. Seattle, 110 Wash.2d 49, 52, 750 P.2d 626 (1988). Under such ordinances, a city will require notice and presentation of a claim before allowing a suit for damages to be brought. 56 Am.Jur.2d Municipal Corporations, Counties, and Other Political Subdivisions § 680 (1971). Compliance is mandatory, and failure to comply bars a claimant from maintaining an action in court. See Lewis v. Mercer Island, 63 Wash.App. 29, 32-33, 817 P.2d 408, review denied, 117 Wash.2d 1024, 820 P.2d 510 (1991); former RCW 35.31.030. Whether Seattle's claims-filing ordinance is a valid exercise of sovereign immunity thus depends on whether it is authorized by its sovereign, the State.

A

Seattle first argues its ordinance is authorized by RCW 4.96.010, which provides a city may require the filing of a claim as a condition precedent to bringing a lawsuit. Wilson argues, however, this statute only authorizes the filing of claims for damages sounding in tort and does not apply to claims under RCW 64.40.020. We agree with Wilson.

In 1963, the Washington State Legislature abolished the State's sovereign immunity for tort liability. RCW 4.92.090 (Laws of 1963, ch. 159, § 2); Kelso, 63 Wash.2d at 918, 390 P.2d 2. In 1967, the Legislature extended this abrogation of sovereign immunity to all its political subdivisions, including cities such as Seattle. RCW 4.96.010 (Laws of 1967, ch. 164, §§ 17, 18). RCW 4.96.010 does preserve a municipality's right to require the filing of a damages claim with the municipality before bringing a lawsuit, but only for claims sounding in tort. It states:

All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages....

RCW 4.96.010(1). ¹

The case most directly on point is El Coba Co. Dormitories, Inc. v. Franklin Cy. PUD, 82 Wash.2d 858, 514 P.2d 524 (1973). In El Coba, this court held filing a claim with a PUD under RCW 4.96.010 is a condition precedent only to commencing an action for damages arising from tortious conduct; filing a claim is not required for other types of actions such as a breach of contract. El Coba, 82 Wash.2d at 863, 514 P.2d 524. The court reasoned that prior to the enactment of RCW 4.96.010, damages were broadly construed to mean either damages for breach of contract or tort, see Puget Constr. Co. v. Pierce Cy., 64 Wash.2d 453, 457, 392 P.2d 227 (1964), so the filing of a claim with the PUD was required for both types of actions. When the Legislature enacted RCW 4.96.010 abolishing sovereign immunity, it did not use the previous broader language requiring the filing of a claim for "damages". Instead, the Legislature required claims only for "damages arising out of tortious conduct". The court construed this narrower language as evincing a legislative intent to limit the requirement of filing a claim with the PUD to only claims for tortious damages. The requirement of filing a claim for damages arising out of an alleged breach of contract was eliminated. El Coba, 82 Wash.2d at 863, 514 P.2d 524.

The same analysis applies here. RCW 4.96.010 authorizes only claims-filing ordinances for damages arising from tortious conduct; the statute does not authorize the City of Seattle to require the filing of claims for other types of damages such as breach of contract or special statutory remedies.

Seattle attempts to distinguish El Coba on the grounds the claims-filing procedure applicable in that case was former RCW 4.96.020(2). See El Coba, 82 Wash.2d at 862, 514 P.2d 524. That statute governs the presenting of claims to political subdivisions other than cities, towns, and counties, and by its plain language is limited to the filing of claims "for damages arising out of tortious conduct". (Italics ours.) Former RCW 4.96.020(2). However, the procedure for presenting claims to charter cities is governed instead by former RCW 35.31, which Seattle argues is not as limited in scope. Whereas former RCW 4.96.020(2) provides only for filing of claims for damages sounding in tort, former RCW 35.31.020 provides for the filing of "[a]ll claims for damages" against a charter city. Seattle argues its claims ordinance, SMC 5.24.005, is thus authorized by former RCW 35.31.020.

Seattle misconstrues the nature of this statute. Former RCW 35.31.020 is a procedural statute specifying the time period for filing claims. It is not the statute which...