Covington Land Llc, V. City Of Covington ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
COVINGTON LAND, LLC, a Washington ) No. 81232-7-I
corporation, )
) DIVISION ONE
Appellant, )
) UNPUBLISHED OPINION
v. )
)
CITY OF COVINGTON, a municipal )
corporation and political subdivision of the )
State of Washington, )
)
Respondent. )
)
HAZELRIGG, J. — Covington Land, LLC seeks reversal of a superior court
order dismissing with prejudice its Land Use Petition Act (LUPA)1 appeal for lack
of jurisdiction based on invalid service of process on the City of Covington.
Covington Land argues that the service was valid because LUPA does not require
personal service on a city and because the service, though indirect, constituted
secondary or substitute service sufficient to commence a LUPA action. In the
alternative, it argues that the City should be estopped from challenging service
because its employees misled the process server, who reasonably believed that
she served the appropriate party. Because the plain language of LUPA requires
personal service and a petitioner must strictly comply with LUPA’s procedural
requirements before invoking the superior court’s appellate jurisdiction, the service
1 Ch. 26.70C RCW.
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 81232-7-I/2
was invalid. Estoppel is not warranted because Covington Land has not shown
that the City’s employees had full knowledge of the facts or any duty to speak, or
that Covington Land lacked knowledge of the facts or any convenient and available
means of establishing such knowledge. We affirm.
FACTS
Covington Land owned, and proposed to redevelop, approximately 7.65
acres located at 27552 Covington Way S.E., which is zoned for general
commercial use. The City of Covington imposed conditions on its approval of the
commercial site development permit that would preclude a significant portion of
Covington Land’s proposed development. Covington Land appealed the
conditions to the City of Covington Hearing Examiner. In a written decision dated
November 18, 2019, the Hearing Examiner denied Covington Land’s appeal and
sustained the City’s conditions.
Covington Land appealed the decision to the King County Superior Court
under the Land Use Petition Act (LUPA). Covington Land filed its LUPA action on
December 9, 2019. That day, at 9:54 a.m., Covington Land’s counsel emailed the
LUPA petition and summons to a national professional process server with express
instructions to serve the City Clerk for the City of Covington the same day and to
confirm service. At 3:04 p.m., Covington Land’s counsel was informed that service
of the pleadings on the Covington City Clerk had been completed by process
server Sandra Ginter.
On January 30, 2020, the City filed a motion to dismiss. In the motion, the
City stated that Ginter had hand-delivered the LUPA summons and complaint to
-2-
No. 81232-7-I/3
the City’s Permit Center Manager, Kelly Thompson, not the City Clerk. The City
argued that, because Ginter did not serve the City Clerk as required by LUPA,
service was improper and the court was without jurisdiction.
The motion was supported by the declarations of Thompson and Robert
Lindskov, the City Engineer who greeted Ginter at the front counter of City Hall on
December 9, 2019. Lindskov stated that Ginter said she had something to drop
off for the City and needed “someone I can give something to like a City Clerk or
something.” He checked for the City Clerk in her office, but when he could not
locate her, he asked Thompson if she would be willing to help the visitor. He did
not inform Ginter that Thompson was not the City Clerk.
Thompson asserted that Ginter handed her a stack of papers. She stated
that Ginter did not inform her that she was serving a lawsuit; ask for the Mayor,
City Manager, City Clerk, or any of their designees; or ask for Thompson’s name
or title. Thompson did not identify herself to Ginter or ask to whom the papers
should be delivered.
Covington Land responded that the motion was not timely filed and that the
City should be estopped from challenging service as insufficient. It requested that
the court at least defer ruling to allow discovery regarding the circumstances
surrounding service. Covington Land attached the email notification that it had
received at 3:04 p.m. on December 9, 2019, which stated that Ginter had served
the documents on “Kelly Anoma” at the front desk of City Hall. The email also
included Ginter’s description of service: “Arrived at office at city hall, a man came
out and asked if I had been helped[.] I said no, I explained I needed a city clerk,
-3-
No. 81232-7-I/4
he said let me get Kelly. Kelly anoma [sic] came forward and I handed her the
documents.” In a declaration, Ginter stated that, based on Lindskov’s response to
her request, she believed that Kelly was the City Clerk and that Lindskov was going
to bring the City Clerk out to meet her. Ginter asserted that she said to the woman
who came to the desk, “[Y]ou must be Kelly,” and the woman responded that she
was. Ginter also stated that she asked Kelly for her last name, and Kelly told her
that it was Anoma.
In a reply declaration, Thompson asserted that she did not identify herself
as “Kelly Anoma” to Ginter, nor was she aware of any person by that name working
at the City. She guessed that Ginter might have believed that her last name was
Anoma based on her signature on the service slip. Thompson also noted that the
City publishes a staff directory on its publicly available website that lists Sharon
Scott as the City Clerk for the City of Covington.
On February 7, 2020, the court entered an order granting the City’s motion
to dismiss for lack of jurisdiction “with the exception that the Court is reserving
ruling on the issue of substitute secondary service.” The court authorized limited
discovery on the issue and stated that it would entertain a motion after discovery
was completed.
Covington Land served the City with interrogatories and proposed written
deposition questions to be presented to Thompson. Thompson stated that, after
receiving the documents from Ginter, she saw that the heading on the first page
referenced “Covington Land, LLC,” so she gave the documents to Bryan Bykonen,
a Senior City Planner working on the Covington Land project. The City stated in
-4-
No. 81232-7-I/5
response to Covington Land’s interrogatories that Bykonen sent the City Clerk an
email at 4:56 p.m. on December 9, 2019 that included as an attachment the
summons and petition. The Clerk replied to Bykonen on December 10, 2019
acknowledging receipt of his email.
After completing the limited discovery authorized by the court, Covington
Land filed a motion requesting that the court declare that service of process was
timely or, in the alternative, find that the additional evidence produced from the
limited discovery justified an evidentiary hearing on whether the City should be
estopped from claiming insufficient service. On July 6, 2020, the superior court
denied the motion, denied the request for an evidentiary hearing, and dismissed
the petition in its entirety with prejudice.
Covington Land appealed from the February 7, 2020 decision. It filed an
amended notice of appeal after the superior court denied its motion on July 6,
2020.
ANALYSIS
Covington Land contends that the superior court erred in dismissing its
LUPA appeal for failure to properly file and serve its petition within the statutory
deadline. We review a trial court’s dismissal of an action on legal grounds de novo.
Witt v. Port of Olympia, 126 Wn. App. 752, 757, 109 P.3d 489 (2005).
Except in certain limited circumstances, LUPA provides the exclusive
means for judicial review of final land use decisions by local jurisdictions. RCW
36.70C.030(1). LUPA was enacted “to reform the process for judicial review of
land use decisions made by local jurisdictions[ ] by establishing uniform, expedited
-5-
No. 81232-7-I/6
appeal procedures and uniform criteria for reviewing such decisions[ ] in order to
provide consistent, predictable, and timely judicial review.” RCW 36.70C.010. The
superior court acts in its limited appellate capacity when reviewing an
administrative decision. Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 197, 796 P.2d
412 (1990). “‘[A]ll statutory requirements must be met before jurisdiction is
properly invoked’” in an administrative appeal. Id. (quoting Spokane County v.
Utils. & Transp. Comm’n, 47 Wn. App. 827, 830, 737 P.2d 1022 (1987)).
A party appealing a final local land use decision must file and serve the
LUPA petition within 21 days of issuance of the land use decision. RCW
36.7C.040(3). For purposes of this requirement, the date on which a land use
decision is issued is “[t]hree days after a written decision is mailed by the local
jurisdiction or, if not mailed, the date on which the local jurisdiction provides notice
that a written decision is publicly available.” RCW 36.7C.040(4). LUPA specifies
that “[s]ervice on the local jurisdiction must be by delivery of a copy of the petition
to the persons identified by or pursuant to RCW 4.28.080 to receive service of
process.” RCW 36.7C.040(5). Under the referenced statute, a summons in an
action against any town or incorporated city “shall be served by delivering a copy
. . . to the mayor, city manager, or, during normal office hours, to the mayor’s or
city manager’s designated agent or the city clerk thereof.” RCW 4.28.080(2). The
statute states that “[s]ervice made in the modes provided in this section is personal
service.” RCW 4.28.080.
I. Validity of Service
A. Personal Service Requirement
-6-
No. 81232-7-I/7
Covington Land first contends that service of process was sufficient to
commence the LUPA action because RCW 36.70C.040(5) does not require
personal service.2
Our fundamental duty in interpreting a statute is “to ascertain and implement
the legislature’s intent.” Prosser Hill Coal. v. County of Spokane, 176 Wn. App.
280, 288, 309 P.3d 1202 (2013). When interpreting a statute, courts first look to
the plain language of the statute to discern its meaning. Kilian v. Atkinson, 147
Wn.2d 16, 20–21, 50 P.3d 638 (2002). “We discern plain meaning from the
ordinary meaning of the language at issue, the context of the statute in which that
provision is found, related provisions, and the statutory scheme as a whole.”
Prosser Hill Coal., 176 Wn. App. at 290 (internal quotation marks omitted). We
must give meaning to every word and interpret the statute as it is written. Id. at
288. If the statutory language is clear on its face, there is no need to employ the
canons of statutory construction, review legislative history, or analyze relevant
case law to ascertain the meaning of the statute. Kilian, 147 Wn.2d at 20–21. A
statute is ambiguous only if it can reasonably be interpreted more than one way,
not merely because “different interpretations are conceivable.” Id.2 Covington Land states in its opening brief that “the filing and service deadline for the
LUPA Petition was December 16, 2019” and states that it treated December 9, 2019 as the deadline
“in an abundance of caution.” In its argument, it acknowledges that, “to be timely served, the filed
LUPA Summons and Petition had to be delivered to the City Clerk by 5:00 p.m. on December 9,
2020.” Although the City lists as an issue on appeal the date on which the statute of limitation began
to run and devotes a section of its brief to that issue, Covington Land does not provide sufficient
argument to raise this issue. See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996)
(“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.”). Accordingly, we decline to consider this issue and treat December 9, 2020 as the
filing deadline for Covington Land’s LUPA petition.
-7-
No. 81232-7-I/8
Covington Land acknowledges that Washington courts have consistently
held that the procedural requirements of LUPA must be strictly met before the
superior court’s jurisdiction under the Act may be properly invoked. See, e.g.,
Durland v. San Juan County, 182 Wn.2d 55, 67, 340 P.3d 191 (2014) (“[W]e
require strict compliance with LUPA’s bar against untimely or improperly served
petitions.”); RST P’ship v. Chelan County, 9 Wn. App. 2d 169, 175, 442 P.3d 623(2019) (“The petitioner must strictly meet the procedural LUPA requirements
before properly invoking a trial court’s appellate jurisdiction under the act.”);
Citizens to Pres. Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App. 461,
467, 24 P.3d 1079 (2001) (“The procedural requirements of the Land Use Petition
Act (LUPA) have to be strictly met before a trial court’s appellate jurisdiction under
the Act is properly invoked.”).
However, Covington Land contends that the plain language of RCW
36.70C.040(5) supports its position that hand-to-hand service is not required. The
statute provides that service on a local jurisdiction must be accomplished “by
delivery of a copy of the petition to the persons identified by or pursuant to RCW
4.28.080 to receive service of process.” RCW 36.70C.040(5). Covington Land
argues that the phrasing of the statute indicates that service may be accomplished
by one of two methods: “(1) ‘Delivery’ of a copy of the petition to the persons
identified by RCW 4.28.080; or (2) ‘Pursuant to RCW 4.28.080,’ which requires
‘personal service.’” Therefore, Covington Land reasons the term “delivery” in RCW
36.70C.040(5) cannot mean “personal service” because, if so interpreted, the term
would be superfluous and redundant: “if the word [‘delivery’ in RCW
-8-
No. 81232-7-I/9
36.70C.040(5)] is to be given meaning, it must mean something different than
‘pursuant to’ RCW 4.28.080.” Because of this, Covington Land contends that
“[t]here is, at the very least, an ambiguity in LUPA regarding the modes of delivery
authorized.”
The language of RCW 36.70C.040(5) and structure of RCW 4.28.080 make
clear that Covington Land’s reading of these statutes is incorrect. Some
subsections of RCW 4.28.080 specify persons to be served in certain types of
actions. In reference to these subsections, the statute generally reads something
like, “The summons shall be served by delivering a copy, if the action is against [a
specified type of defendant], to [a specified person or type of person].” However,
other subsections cross-reference different statutes that provide the applicable
manner of service. In these instances, the statute reads something like, “The
summons shall be served by delivering a copy, if the action is against [a specified
type of defendant], as provided in [another statute].”
The specific subsection of RCW 4.28.080 concerning service on a town or
city follows this same convention, including both specified persons to be served
and a specified manner of service. RCW 4.28.080(2). In this subsection, the
statute requires that the summons be served by delivery (1) to the Mayor or City
Manager or (2) during normal office hours to the Mayor’s or City Manager’s
designated agent or the City Clerk. Id.Covington Land reads RCW 36.70C.040(5) to distinguish between “delivery
of a copy of the petition” and service “pursuant to RCW 4.28.080.” This is not
consistent with RCW 4.28.080. Rather, RCW 36.70C.040(5) provides that service
-9-
No. 81232-7-I/10
must be accomplished by delivery of a copy of the petition either (1) to the persons
identified by RCW 4.28.080 to receive service of process or (2) in the manner
provided by RCW 4.28.080. Although perhaps not a model of clarity, RCW
36.70C.040(5) does not contain superfluous language and is not ambiguous. The
plain language of RCW 36.70C.040(5) requires personal service as described in
RCW 4.28.080.
B. Indirect Service
Covington Land also contends that service of process was sufficient to
commence the LUPA action because, although the delivery was indirect, it
constituted “substitute or secondary service” on the City Clerk. Substitute service
and “direct, hand-to-hand—but ‘secondhand’—service” are distinct concepts. See
Scanlan v. Townsend, 181 Wn.2d 838, 848, 336 P.3d 1155 (2014). RCW
4.28.080(16) authorizes “substitute service—‘leaving a copy of the summons at
the house of [the defendant’s] usual abode with some person of suitable age and
discretion then resident therein’”—on a defendant not covered by any other
subsection of the statute. See Scanlan, 181 Wn.2d at 847 (quoting former RCW
4.28.080(15) (2012), recodified as RCW 4.28.080(16)). Covington Land’s
argument does not appear to concern substitute service, so we will not address
this issue.
In support of its argument, Covington Land cites cases in which Washington
courts have found personal service adequate when accomplished by multiple
people. See Scanlan, 181 Wn.2d at 854–56; Brown-Edwards v. Powell, 144 Wn.
App. 109, 111–12, 182 P.3d 441 (2008); Reiner v. Pittsburg Des Moines Corp., 35
- 10 -
No. 81232-7-I/11
Wn. App. 331, 333–34, 666 P.2d 396 (1983). “[D]irect, hand-to-hand—but
‘secondhand’—service” may be sufficient so long as the service is made by an
allowable person. Scanlan, 181 Wn.2d at 848. “[A]ny person over 18 years of age
who is competent to be a witness in the action, other than a party” may serve
process. CR 4(c). This rule does not require that the server act at the behest of a
party or even with knowledge that their actions constitute service:
Nothing in [CR 4(c)] requires that a process server have a contractual
obligation to serve process. Nor is there any requirement of proof of
intent to serve process. And we find nothing that would prohibit a
person who comes into possession of a summons and complaint by
defective service from being a competent process server.
Brown-Edwards, 144 Wn. App. at 112.
Covington Land argues that, even if personal service was required, the City
Clerk was properly served by the collective efforts of Ginter, Thompson, and
Bykonen. It contends that the fact that service was accomplished in part by City
employees does not render the service ineffective because they are not named
parties to the case. Accordingly, Covington Land contends that it strictly complied
with the timely service requirements under LUPA because actual service was
accomplished on December 9, 2019.
The fate of this argument hinges on our conclusion regarding whether
personal service is required in this instance. As noted above, we do not agree with
Covington Land’s argument that the term “delivery” in RCW 36.70C.040(5) must
mean something other than “personal service.” Because we conclude that LUPA
requires personal service, Covington Land did not satisfy the service requirements
even if secondary service is permissible because the petition was not personally
- 11 -
No. 81232-7-I/12
delivered to the City Clerk. Covington Land acknowledges that the Clerk received
the petition “ultimately by email delivery” and “not by personal in-hand service
delivery.” The cases relied on by Covington Land in support of their secondary
service argument are inapposite because they all concerned hand-to-hand
delivery. See Scanlan, 181 Wn.2d at 856; Brown-Edwards, 144 Wn. App. at 112;
Reiner, 35 Wn. App. at 332.
The City also argues that secondary service is not allowable in this context
because “personal service on anyone else but those individuals specifically named
in RCW 4.48.080(2) is patently insufficient under LUPA.” It analogizes this case
to Overhulse Neighborhood Association v. Thurston County, 94 Wn. App. 593,
598–99, 972 P.2d 470 (1999). In Overhulse, the petitioner in an action against a
county delivered a copy of the LUPA petition to the office of the Board of
Commissioners rather than to the County Auditor, as required by RCW
36.70C.040(2) and RCW 4.28.080(1). Id. at 596–97. Division Two of this court
held that substantial compliance, rather than strict compliance, with the service
requirements was insufficient “[b]ecause LUPA provides unequivocal directives:”
“The Legislature has named a specific person who is to be served
when the defendant is a government body. The applicable statutory
clause is clear in its mandate. Service on anyone other than the
Auditor is insufficient.” . . . [A]llowing service on an official other than
the county auditor would render the provisions of RCW
36.70C.040(5) and RCW 4.28.080 meaningless.
Id. at 598–99 (internal citations omitted) (quoting Nitardy v. Snohomish County,
105 Wn.2d 133, 712 P.2d 296 (1986)).
Overhulse is instructive. The Legislature has also named a specific person
to be served in an action against a town or city. See RCW 4.48.080(2). In the
- 12 -
No. 81232-7-I/13
cases cited by Covington Land, the courts analyzed only whether service was
sufficient under RCW 4.28.080, not under LUPA. Further, none of those cases
considered the subsection of RCW 4.28.080 relevant here. See Scanlan, 181
Wn.2d at 854–56 (analyzing former RCW 4.28.080(15)); Brown-Edwards, 144 Wn.
App. at 112 (analyzing former RCW 4.28.080(15)); Reiner, 35 Wn. App. at 333–34
(analyzing RCW 4.28.080(10)). The service statute must be read in conjunction
with LUPA, which requires strict compliance.
The City also points out that “[t]o allow parties to serve random city
employees with litigation and then wait to see if it serendipitously makes its way to
one of the individuals named in RCW 4.28.080 eventually would render
meaningless the protections and [certainty] afforded by RCW 36.70C.040(5) and
RCW 4.28.080.” As noted above, the stated purpose of LUPA is to create “uniform,
expedited appeal procedures” to facilitate “consistent, predictable, and timely
judicial review.” RCW 36.70C.010. This purpose is not advanced by allowing
secondary service rather than strict compliance with the requirements laid out in
the relevant statutes. The indirect delivery here was insufficient under LUPA.
II. Equitable Estoppel
Covington Land argues in the alternative that the City should be estopped
from objecting to service because Ginter and Covington Land had a right to rely
on the City employees’ actions implying that Thompson was the proper party to
receive service. Covington Land argues that “the unique circumstances presented
- 13 -
No. 81232-7-I/14
in this case justify invoking the doctrine of equitable estoppel so as to allow [the]
appeal to be decided on the merits.”
The doctrine of equitable estoppel is based on the principle 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.” Wilson v. Westinghouse Elec. Corp., 85 Wn.2d 78, 81,
530 P.2d (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.”
Lybbert v. Grant County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000) (alteration in
original) (quoting Bd. of Regents of Univ. of Wash. v. City of Seattle, 108 Wn.2d
545, 551, 741 P.2d 11 (1987)). These elements must be established by clear,
cogent, and convincing evidence. Id. “The party asserting estoppel must show
both lack of knowledge of the facts and the absence of any convenient and
available means of acquiring such knowledge.” Overhulse, 94 Wn. App. at 600.
Washington courts have consistently recognized, under appropriate
circumstances, the application of estoppel by silence. Sorenson v. Pyeatt, 158
Wn.2d 523, 540, 146 P.3d 1172 (2006). The basic premise of this doctrine is that,
“‘[i]f one maintains silence when in conscience [they] ought to speak, equity will
debar [them] from speaking when in conscience [they] ought to have remained
silent.’” Huff v. N. Pac. Ry. Co., 38 Wn.2d 103, 114–15, 228 P.2d 121 (1951)
(quoting Harms v. O’Connell Lumber Co., 181 Wash. 696, 700, 44 P.2d 785- 14 -
No. 81232-7-I/15
(1935)). Estoppel by silence will not arise unless an individual has full knowledge
of the facts and a duty to speak:
“Full knowledge of the facts is essential to create an estoppel by
silence or acquiescence. . . . Mere silence, without positive acts, to
effect an estoppel, must have operated as a fraud, must have been
intended to mislead, and itself must have actually misled. The party
keeping silent must have known or had reasonable grounds for
believing that the other party would rely and act upon [their] silence.
The burden of showing these things rests upon the party invoking the
estoppel.”
Consol. Freight Lines v. Groenen, 10 Wn.2d 672, 677–78, 117 P.2d 966 (1941)
(emphasis omitted) (quoting Blanck v. Pioneer Mining Co., 93 Wash. 26, 34, 159
P. 1077 (1916)).
Covington Land argues that “the failure of Lindskov and/or Thompson to
clarify that Thompson was not, in fact, the City Clerk, constitutes exactly the
circumstances where estoppel by silence is appropriate.” It argues that the
circumstances of this case are particularly compelling because Ginter “was led to
believe that she herself personally served the City Clerk” and that she “had good
reason to form that belief.” The City responds that Ginter
could have easily asked Ms. Thompson her name and title, or even
have inquired as to the name of the City Clerk. She did not.
Covington Land had a number of convenient and simple means of
acquiring the relevant knowledge, both at the time of service and in
advance, and simply chose not to utilize them.
The City also points out that Ginter did not convey to Lindskov or Thompson that
she was there to serve litigation or that she needed to serve it on the City Clerk of
Covington. Despite the fact that Lindskov initially looked for the City Clerk, the City
vehemently disagrees with Covington Land’s contention that Lindskov understood
Ginter to be asking for the Clerk specifically.
- 15 -
No. 81232-7-I/16
The City has the better argument. Covington Land concedes that neither
Thompson nor Lindskov made any affirmative statement to Ginter that Thompson
was the City Clerk or was authorized to accept service on the Clerk’s behalf.
Covington Land has not established that Thompson or Lindskov had full
knowledge of the facts that Ginter needed to serve the City Clerk or that they had
a duty to inform her that Thompson was not the City Clerk. Ginter could have
easily ascertained whether Thompson was an appropriate party to receive service
and failed to do so. As the City notes, Covington Land also failed to acquire the
relevant knowledge and ensure that the proper party was served. Despite its
reliance on a professional process server, “the plaintiff remains responsible for any
failure to comply with the requirements for valid service of process.” Scanlan, 181
Wn.2d at 856. Equitable estoppel is not appropriate.3
Affirmed.
WE CONCUR:
3 Although Covington Land argued in its briefing that the superior court erred in denying its
request for an evidentiary hearing on the issue of equitable estoppel, counsel conceded at oral
argument that further discovery was not likely to clarify the issues and retracted its request for an
evidentiary hearing.
- 16 -