Clark County v. David Darby ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
August 15, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CLARK COUNTY, a political subdivision of No. 49023-4-II
the State of Washington,
Respondent,
v.
DAVID A. DARBY, UNPUBLISHED OPINION
Appellant,
EDNA STEINHAUER AGUN & HELEN
ANDERSON CRAIG AGUN; CRAIG
ANDERSON; WAYNE LORENZO APLING;
YVETT M. BADDGOR & JESSIE (C/B)
BADDGOR; JEFFREY M. BANNAN;
DONALD RAY BLANCHARD & KIM
BLANCHARD; DOUGLAS E. CARDON;
THOMAS CARLISLE & GAIL CARLISLE;
GARNET W. CHRISTIAN III & MICHAEL
D. CHRISTIAN & MARK A. CHRISTIAN;
CORNERSTONE CONSULTANTS; EQUITY
BUILDERS PROP. LLC; ORVALEE A.
FARRIS; FEDERAL NATIONAL
MORTGAGE ASSOCIATION; RICHARD
FLEMING & CHERYL FLEMING; DALE
GAWLEY; ADELE GLASS; DEUTSCHE
BANK NATIONAL TRUST COMPANY;
GRANITE HIGHLANDS LLC; VIKKI
HAINES & RICHARD PETERSON;
DEBORAH HANSEN; COREY D. HARRIS
& JULINE K. HARRIS; JAMES W.
HAUENSTEIN & RENEE HAUENSTEIN;
No. 49023-4-II
MICHELLE D. HETTRICK; GLEN D.
HOLLAR; ARLEEN D. GRAVES JACKSON;
MARGARET JORGENSON ESTATE; AMIR
KHAZENI & DEBORAH KHAZENI; TODD
KOOISTRA & BRIDGET KOOISTRA;
HELEN LILIANA LANGSTON; LIFETIME
LEASING & LIFETIME RESOURCES;
KIMBERLY D. MANECKE & JOSEPH
MANECKE; ORVILLE MARSH &
ROSALIE MARSH; SHARI L.
MCCLENNEN; JUNE MCCOURT; ROBERT
D. MEDEROS & TRACI I MEDEROS;
KATHERINE MEYER ESTATE; RYAN
MOSS & KERI MOSS; ERIK ODONNELL &
KELLY ODONELL; PACIFIC MOUNTAIN
DEVELOPMENT INC.; KIMBERLY
PENNINGTON 50%; PETE PEREZ &
BERNADETTE PEREZ; BRADLEY R.
PERSHING & CHRISTINA L. PERSHING;
MICHAEL RUPE & ANGELA RUPE;
DAVID L. RUTH & PAMELA RUTH; JULIE
RYAN; BENJAMIN SAGON & ANITA
SAGON; SLD PROPERTIES LLC; SOPER
HILL PROPERTIES INC; JOSEPH G.
SPEARS; JOHN L. SULLIVAN & JULIANA
SULLIVAN; SANDRA SWANSON;
STEVEN TUCK & BONNIE TUCK; GREGG
STEWART WALKER; CHARLES
WALLACE; THOMAS WALLING &
CARRIE WALLING; ANTHONY
WILLBANKS & SARAH WILLBANKS,
Defendants.
JOHANSON, J. — David A. Darby appeals the superior court’s order denying his CR
60(b)(5) motion. Darby sought to set aside the superior court’s order granting Clark County’s (the
County) summary judgment motion and the superior court’s judgment of foreclosure in a tax
foreclosure proceeding. The County requests sanctions under RAP 18.9(a). We hold that the
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No. 49023-4-II
superior court properly denied Darby’s CR 60(b)(5) motion. We also grant the County’s motion
for sanctions. We affirm.
FACTS
I. TAX FORECLOSURE ACTION AND SUMMARY JUDGMENT
In September 2012, the Clark County Treasurer filed a certificate of delinquency initiating
a tax foreclosure proceeding against Darby. The County alleged that Darby had not paid real
property taxes on his property for three or more years. In October, the treasurer filed a notice and
summons of intention to file application for judgment foreclosing tax liens against Darby.
In June 2014, the County moved for summary judgment authorizing the tax foreclosure
sale of Darby’s property. It argued that there was no question of fact as to whether Darby had paid
the delinquent property tax for more than three years. The County supported its motion for
summary judgment with a declaration from Clark County Treasurer Doug Lasher.
In his declaration, Lasher stated that the outstanding taxes, interest, foreclosure costs, and
penalty accrued on Darby’s property from the second half of 2008 to 2014 totaled $22,988.71. He
further asserted that on May 17, 2012, Darby had been notified that his property would be subject
to foreclosure if the taxes, penalty, and interest were not paid by February 2013 and that Darby did
not pay.
Lasher further stated that the treasurer’s office issued a notice and summons to Darby
advising him that the treasurer’s office intended to seek a judgment foreclosing the tax liens and
attached a copy of the October 2012 notice and summons to his declaration. Lasher also asserted
that Darby had been served in person at the treasurer’s office on November 30, 2012 and attached
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No. 49023-4-II
a copy of the proof of service. Lasher stated that as of June 23, 2014, Darby had still not paid the
delinquent taxes.
Three days before the hearing on the County’s summary judgment motion, Darby filed his
own summary judgment motion and a response to the County’s summary judgment motion. In his
summary judgment motion, Darby asserted that the laws the County was trying to enforce were
unconstitutional and that the county treasurer and county auditor had failed to rebut his demand
that the County “prove in Constitutional Law that the county has the right to tax and control [his]
Land Patented land.” Clerk’s Papers (CP) at 473. He asserted that under his “Land Patent,” no
government could tax his property unless it had an interest in the property. And he demanded that
the County prove that the tax was lawful under the “supreme law of the land” found in the 1787
federal constitution and bill of rights and the 1878 Washington Constitution. CP at 473. Darby
asserted that because the County had not “rebutted” various “affidavits”1 he had filed with the
County and the court, those affidavits established the “truth” and he was entitled to summary
judgment. CP at 473.
On July 31, Darby filed an amended response to the County’s summary judgment motion.2
In this response, he again argued that the County did not have the authority to collect delinquent
real property taxes under the 1878 Washington Constitution and the “Land Patent Law pursuant
to Article 1, Section 10 of the 1787 Constitution for the United States of America.” CP at 554-55.
1
Darby did not identify these affidavits with any specificity in his summary judgment motion. He
appears to refer to numerous documents he had earlier submitted to the court and the County.
2
In his original response, Darby asserted that he had not received any discovery and that the
County could not prove its case without first proving that the statutes it was relying on were valid
under the federal constitution, the Bill of Rights, and the 1878 Washington Constitution.
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No. 49023-4-II
He further asserted that there were genuine issues of material fact because (1) the County had not
presented any “competent fact witness” or other “authentic” evidence,3 (2) he had provided
“testimony before the Court and in the court record,” and (3) Clark County had not presented
evidence showing that the 1878 Washington Constitution had been amended to allow for taxation
of private property or that the 1878 Washington Constitution was “fraudulent.” CP at 555-57. In
addition, he suggested that there were “standing” issues under article III of the United States
Constitution. CP at 557. Darby also attached a motion to compel discovery, asking that the
superior court compel the County to “provide all the documents that prove in constitutional law
that the county has the constitutional authority to foreclose on property that has a lawful Land
Patent listing the Defendant David A. Darby as the titled owner.”4 CP at 478.
That same day, the County moved to strike Darby’s response and summary judgment
motion as untimely under CR 56(c). The County also asserted that even if the court were to
consider Darby’s filings, Darby appeared to concede that there were no genuine issues of material
fact preventing summary judgment because he did not dispute that (1) he owned the property in
question, (2) he had been assessed $22,988.71 in property taxes, and (3) he had not made any
payments.
The summary judgment hearing was held on August 1, 2014. The superior court granted
the County’s summary judgment motion and authorized the foreclosure sale after finding that there
were no disputes as to any material facts. In its order, the superior court stated that it “ha[d] heard
3
He asserted that the County had only provided statements from counsel, which were not evidence.
4
In the motion to compel, Darby mentions the documents described in note 2, supra.
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No. 49023-4-II
oral argument and reviewed the pleadings, files and records herein, including Clark County’s
Motion for Summary Judgment and supporting materials and Defendant’s responsive briefing.”5
CP at 1126.
Rather than appeal the foreclosure action, Darby filed a new action and a CR 60 motion
under a new cause number. See Darby v. Clark County, noted at 192 Wash. App. 1069, 2016 WL
917807, at *1. The superior court dismissed the new action and the CR 60 motion. Darby, 2016
WL 917807, at *2. In an unpublished opinion filed in March 2016, we affirmed the superior court,
noting that Darby could not challenge the superior court’s decision in the foreclosure action by
means of another, separate action. Darby, 2016 WL 917807, at *3.
II. CR 60 MOTION
On May 2, 2016, apparently in response to our appellate decision, Darby filed a motion in
the tax foreclosure action in which he asserted he was bringing a CR 60(b)(5) “[c]ollateral attack
to vacate a void Order and Judgement [sic] of Foreclosure.” CP at 590 (emphasis omitted). In
this motion, he appears to assert that the judgment was “void” because (1) the County did not
present any evidence supporting its summary judgment motion, (2) the County’s failure to rebut
his affidavits demonstrated that the court had no jurisdiction, that his property was not subject to
lien under the “Land Patent” laws, and that he was a sovereign citizen, (3) the County had no
standing because it had no interest in Darby’s property, (4) the tax lien was unlawful and the court
had no jurisdiction under the 1878 Washington constitution, and (5) the tax lien was unlawful
5
It appears that the superior court did not consider Darby’s summary judgment motion at this
hearing, but we are unable to verify this because we do not have the record from the summary
judgment hearing before us. Darby does not argue that the superior court erred when it refused to
consider his summary judgment motion.
6
No. 49023-4-II
because the State had no contract with Darby. Two days later, Darby filed a motion entitled
“Plaintiff’s Collateral Attack to Vacate a Void Order” in the original foreclosure action.6 On May
17, the County responded, arguing that the superior court should deny Darby’s motion because it
failed to set forth any legal or factual basis to support any relief “and represents an improper
attempt to circumvent Washington’s appellate process.” CP at 1138.
The next day, Darby filed a “Memorandum in Support” of his motion, which appears to be
a reply to the County’s response to the CR 60 motion. Darby argued that the judgment was void,
apparently based on lack of subject matter jurisdiction under the 1878 Washington Constitution
and because of his status as a sovereign citizen. Darby also appeared to argue that (1) the superior
court was required to apply less stringent standards to him because he was pro se,7 and (2) summary
judgment for the County was improper because the superior court considered counsel’s arguments
as evidence and the County did not dispute his (Darby’s) “testimony.”8
At the May 20 hearing on the CR 60 motion, Darby stated that he would rely on his briefing.
The County asserted that Darby’s motion did not articulate any factual or legal basis for relief and
that Darby did not seem to be seeking any relief. The County also asserted that it believed that
6
Our record contains only a “citation” Darby filed on May 4, 2016 and a supporting brief filed
May 18. It is unclear whether Darby filed additional supporting materials on May 4. The County’s
May 17 response suggests that there was additional briefing with the May 4 filing, but the County’s
response may be referring to Darby’s May 2 filing.
7
Darby’s citations to Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), and
Platsky v. Central Intelligence Agency, 953 F.2d 26 (2nd Cir. 1991), suggest this issue.
8
This appears to be a reference to the affidavits and other documents that Darby had filed with the
court.
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No. 49023-4-II
Darby was just trying to circumvent the rules and appeal despite the fact that he previously waived
his appeal by not filing one. Darby stated that he had no response to that argument.
The superior court denied Darby’s motion. The superior court stated,
Self-represented litigants may file their pleadings in accordance with the
civil rules. You failed to do this in the underlying case almost two years ago.
In fact, I recall when you left the courtroom at the time of my decision, you
stated on the record that you should not have listened to the person that you had
consulted. The person hadn’t filed some pleadings that appeared with you in court.
You have been given a chance to be heard, and I’m denying your motion to
vacate.
The County had legal standing to foreclose for failing to pay the property
taxes.
Report of Proceedings at 4-5.
Darby appeals the denial of his CR 60 motion.
ANALYSIS
Raising a variety of issues, Darby appeals the superior court’s denial of his CR 60(b)(5)
motion. Darby does not establish that the superior court erred when it denied his motion.
I. STANDARD OF REVIEW
Generally, we review a trial court’s decision on a motion to vacate under CR 60(b) for
abuse of discretion. Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wash. App. 803, 821, 225 P.3d
280 (2009) (citing Haller v. Wallis, 89 Wash. 2d 539, 543, 573 P.2d 1302 (1978)). “‘An abuse of
discretion is present only if there is a clear showing that the exercise of discretion was manifestly
unreasonable, based on untenable grounds, or based on untenable reasons.’” Mitchell, 153 Wn.
App. at 821 (quoting Moreman v. Butcher, 126 Wash. 2d 36, 40, 891 P.2d 725 (1995)). A superior
court’s “‘decision is based on untenable grounds or made for untenable reasons if it rests on facts
unsupported in the record or was reached by applying the wrong legal standard.’” Mitchell, 153
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No. 49023-4-II
Wn. App. at 821-22 (internal quotation marks omitted) (quoting State v. Rohrich, 149 Wash. 2d 647,
654, 71 P.3d 638 (2003)). However, a trial court’s denial of a CR 60(b)(5) motion based upon a
claim that the judgment is void for lack of jurisdiction is reviewed de novo. Ahten v Barnes, 158
Wash. App. 343, 350, 242 P.3d 35 (2010).
II. JURISDICTIONAL ISSUES
Darby brought his motion under CR 60(b)(5). CR 60(b)(5) provides that “the court may
relieve a party or the party’s legal representative from a final judgment, order, or proceeding for
the following reason: . . . The judgment is void.” “A void judgment is a ‘judgment, decree or order
entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks
the inherent power to make or enter the particular order involved.’” State ex rel. Turner v. Briggs,
94 Wash. App. 299, 302-03, 971 P.2d 581 (1999) (internal quotation marks omitted) (quoting Dike
v. Dike, 75 Wash. 2d 1, 7, 448 P.2d 490 (1968)).
Reading Darby’s pleading broadly, the jurisdictional issues Darby raised in his CR 60(b)(5)
motion were based on his claims that (1) the superior court lacked jurisdiction under the 1878
Washington Constitution, (2) the County had no standing under article III of the United States
Constitution because it had no contractual relationship to him (Darby) or an interest in the property
at issue, and (3) the superior court failed to recognize that he is a private citizen and therefore not
subject to “STATE OF WASHINGTON,” because it is a “corporation” that has no authority over
a “Private Natural Born Sovereign Citizen[ ] of Washington State” other than by contract. Br. of
Appellant at 11.
9
No. 49023-4-II
Darby’s claim that the only true constitution in effect is Washington’s so called “First
Constitution”9 from 1878, and he is, under this constitution, a sovereign citizen not subject to the
jurisdiction of the superior court has no merit. Washington’s Constitution was ratified by the
people on October 1, 1889, and came into effect on November 11, 1889, when Washington was
granted statehood in accordance with the Enabling Act, 25 U.S. STATUTES AT LARGE, ch. 180, p.
676 (1889). The 1878 constitution to which Darby refers was ratified in 1878, when the
Washington Territory made its first bid for statehood, but this constitution never came into effect
because the territory did not achieve statehood that year.10 Because the 1878 constitution was
never effective, Darby’s jurisdictional argument based on the 1878 constitution fails.11
9
See Meany & Condon, Washington’s First Constitution, 9 Wash. Hist. Q. 131 (1918), reprinted
in E. Meany & J. Condon, Washington’s First Constitution, 1878, and Proceedings of the
Convention 19 (1924), http://lib.law.washington.edu/waconst/sources/Wash1stConst.pdf (last
visited July 28, 2017).
10
Id.
11
Darby also asserts that the superior court and the County “are committing treason against the
1878 Constitution.” Br. of Appellant at 12. This argument also fails because the 1878 constitution
never came into effect.
Darby also claims that the superior court judge violated his oath of office and the 1878
constitution by not requiring the County to prove jurisdiction under the 1878 constitution and by
failing to comply with or ignoring various articles in the 1878 constitution. Darby refers to
“Parosa v. Tacoma,” “Johnson v. City of Spokane,” and Gerberdinger v. Munroe” without a
citation. Br. of Appellant at 10. Darby’s reference to Parosa could be a reference to Parosa v.
City of Tacoma, 57 Wash. 2d 409, 357 P.2d 873 (1960), or Port of Tacoma v. Parosa, 52 Wash. 2d 181,
324 P.2d 438 (1958). Johnson v. City of Spokane could refer to one of three citations: 72 Wash.
298, 130 P. 341 (1913); 29 Wash. 730, 70 P. 122 (1902), or 19 Wash. App. 722, 577 P.2d 164 (1978).
None of these cases supports the proposition that the 1878 constitution is “the supreme law of
Washington State” or that properly enacted codes and statutes are not law. Br. of Appellant at 10.
We were not able to find any case named Gerberdinger v. Munroe. Again, because the 1878
constitution never came into effect, these arguments have no merit.
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No. 49023-4-II
Darby also asserts that the superior court lacked jurisdiction because the County lacked
standing under article III of the United States Constitution,12 which requires an injury. Darby
appears to contend that the County has suffered no injury because it does not have a contractual or
property interest in the property. Darby cites no authority establishing that the County must have
an interest in the property to foreclose on property when a property owner fails to pay his or her
property taxes. Thus, Darby does not show a lack of jurisdiction on this basis.
Darby’s argument that the superior court failed to recognize that he is a private citizen and
therefore not subject to “STATE OF WASHINGTON” because it is a “corporation” that has no
authority over a “Private Natural Born Sovereign Citizen[ ] of Washington State” other than by
contract argument also fails. Br. of Appellant at 11. To support this argument, Darby refers us to
“the 1943 Clearfield Doctrine.” Br. of Appellant at 11. This appears to be a reference to Clearfield
Trust Co. v. United States, 318 U.S. 363, 318 U.S. 744, 63 S. Ct. 573, 87 L. Ed. 838 (1943).
Clearfield addressed the rights and obligations of the United States with respect to commercial
paper when the government is acting in a business capacity—it is irrelevant to Darby’s
jurisdictional claim and does not establish that the State of Washington is a corporation. 318 U.S.
at 366. Accordingly, Darby fails to cite to any authority supporting his argument and this argument
fails.
12
Article III standing requires that the complaining party demonstrate (1) an “injury
in fact”—a harm that is both “concrete” and “actual and imminent, not conjectural
or hypothetical”; (2) causation; and (3) redressability.
In re Estate of Duxbury, 175 Wash. App. 151, 167 n.14, 304 P.3d 480 (2013) (internal quotation
marks omitted) (quoting Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S.
765, 771-72, 120 S. Ct. 1858, 146 L. Ed. 2d 836 (2000)).
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No. 49023-4-II
III. NONJURISDICTIONAL CLAIMS
In addition to his jurisdictional claims, Darby also presents several nonjurisdictional
claims. Even presuming these arguments relate to and were properly raised in Darby’s CR 60(b)(5)
motion, these argument have no merit.
A. RELIANCE ON PROSECUTOR’S ARGUMENT AND LACK OF EVIDENCE
Darby argues that the superior court judge failed to consider cases such as Trinsey v.
Pagliaro, 229 F. Supp. 647 (E.D. Pa. 1964), and United States v. Lovasco, 431 U.S. 783, 97 S. Ct.
2044, 52 L. Ed. 2d 752 (1977). It appears that Darby is referring to these cases, at least in part, for
the premise that the superior court could not ignore proper procedure and consider facts outside
the record, such as statements of counsel in their briefs or argument. See Trinsey, 229 F. Supp. at
649; Lovasco, 431 U.S. at 790. This appears to relate to Darby’s contentions that the County was
not entitled to summary judgment because it presented no evidence and that the superior court
considered the County’s argument as evidence. The record does not support this argument. The
County presented evidence in the form of Lasher’s declaration and its supporting documentation,
and the superior court’s summary judgment order states that it had considered the County’s
“supporting materials.” CP at 1126. Thus, Darby does not show that the superior court’s decision
was based only on the County’s argument.
Darby also appears concerned that the superior court relied on the County’s argument at
the CR 60(b)(5) hearing, in which the County asserted that Darby had failed to support his motion,
failed to ask for any relief, and appeared to be attempting to circumvent the fact that he failed to
file an appeal of the summary judgment order. Nothing in the record shows that the superior court
relied solely on the County’s arguments and failed to review Darby’s filings. In fact, the superior
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No. 49023-4-II
court expressly stated that it had “reviewed the pleadings.” CP at 1126. Accordingly, this
argument fails.
B. SELF-REPRESENTED LITIGANT STANDARDS
Darby also asserts that the superior court erred by holding him to the same standard as an
attorney. Although the federal court rules require that the federal courts hold a self-represented
litigant to a lower standard, see Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972), the federal rules do not apply to Washington courts. Under Washington law, self-
represented litigants “are bound by the same rules of procedure and substantive law as attorneys.”
Westberg v. All-Purpose Structures Inc., 86 Wash. App. 405, 411, 936 P.2d 1175 (1997).
Accordingly, regardless of whether Darby is referring to the superior court’s actions during the
summary judgment proceedings or during the CR 60(b)(5) motion proceedings, this argument
fails.
IV. MISCELLANEOUS MATTERS
In addition to the issues related to his CR 60(b)(5) motion, Darby asks that if we rule against
him, we file findings of fact and conclusions of law. This court decides appeals by opinion; we
are not required to issue findings of fact and conclusions of law. RCW 2.06.040 (“In the
determination of causes all decisions of the court shall be given in writing and the grounds of the
decisions shall be stated.”).
Darby also requests a variety of relief. Because we affirm the superior court, Darby is not
entitled to relief. Accordingly, we do not address his individual requests.
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No. 49023-4-II
To the extent Darby raises other claims, they fail, either because they relate to actions that
occurred during the summary judgment hearing, which is not before this court,13 or because they
are unsupported by reasoned argument or citation to authority. See Cowiche Canyon Conservancy
v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549 (1992). To the extent that Darby raises new claims
in his reply, we do not consider new issues raised for the first time on appeal in a responsive brief.
RAP 10.3(c).
Because Darby fails to show that the superior court abused its discretion when it denied his
CR 60(b)(5) motion, we affirm the superior court.
V. SANCTIONS
The County moves for sanctions, attorney fees, and costs under RAP 18.9(a) for having to
respond to a frivolous appeal. RAP 18.9(a) provides in part,
The appellate court on its own initiative or on motion of a party may order a party
. . . who . . . files a frivolous appeal . . . to pay terms or compensatory damages to
any other party who has been harmed by the delay or the failure to comply or to
pay sanctions to the court.
“[A]n appeal is frivolous if it raises no debatable issues on which reasonable minds might
differ and it is so totally devoid of merit that no reasonable possibility of reversal exists.” Protect
the Peninsula’s Future v. City of Port Angeles, 175 Wash. App. 201, 220, 304 P.3d 914 (2013). “All
doubts as to whether the appeal is frivolous should be resolved in favor of the appellant.”
Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hr’gs Bd., 170 Wash. 2d 577, 580, 245
P.3d 764 (2010).
13
For instance, Darby’s brief mentions the superior court excluding an individual from the
summary judgment hearing. This matter does not relate to the superior court’s jurisdiction and
was not before the superior court under CR 60(b)(5).
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No. 49023-4-II
Even the most generous reading of Darby’s appeal demonstrates that it raises no debatable
issues and is entirely devoid of merit. Accordingly, we grant the County’s motion for sanctions
and award attorney fees and costs on appeal upon its compliance with RAP 18.1.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, J.
We concur:
MAXA, A.C.J.
LEE, J.
15