Griffith v. City of Bellevue , 130 Wash. 2d 189 ( 1996 )

Johnson, J.

— The question presented in this case is whether a petition for a statutory writ of certiorari should be dismissed for lack of jurisdiction when the petition and affidavit are timely filed and served but the affidavit is not signed by the beneficially interested party as required by RCW 7.16.050. The Superior Court dismissed the petition on the basis the missing signature on the verification deprived the court of jurisdiction. The Court of Appeals affirmed. We hold the Superior Court acquired jurisdiction when the petition and defective verification were timely filed, and the petition should not have been dismissed because Griffith offered to sign the verification promptly after the omission was called to his attention in accordance with CR 11. We reverse.

This case arises from the City of Bellevue’s approval of Greacen Construction, Inc.’s (Greacen) application to rezone and plat a 7.36-acre parcel of land. Dale Griffith and others who own property located near Greacen’s parcel timely filed a petition for a writ of certiorari in King County Superior Court, challenging the Bellevue City Council’s action.¹ The petition is 10 pages. The last page of the petition contains a verification as required by RCW 7.16.050.² Although Griffith timely filed and served the petition, he left the signature line on the verification filed with the Superior Court and served on Greacen blank. The signed verification was inadvertently served on the City of Bellevue rather than filed with the court.³ Notwithstanding the missing signature on the verification filed with the Superior Court and served on Greacen, the parties agreed to the issuance of the writ ordering the City of Bellevue to produce a full and complete record relating to Greacen’s land use application.

Almost one month after the issuance of the writ and more than 90 days after the writ petition was filed, Greacen discovered the verification filed with the court was not signed and moved to dismiss the writ for lack of subject matter jurisdiction. In response, Griffith moved to amend the petition and enlarge the time in which Griffith had to file a signed verification. The Superior Court granted Greacen’s motion to dismiss the writ. Griffith appealed. The Court of Appeals affirmed, explaining:

Once the statute of limitations and. 90-day cure period ran, the superior court lost jurisdiction over the matter.

Our holding here establishes a bright line rule which, in our view, is both desirable and necessary to further Washington’s longstanding policy of finality in land use decisions.

Griffith v. City of Bellevue, 77 Wn. App. 757, 761, 893 P.2d 689 (1995).

Although RCW 7.16.050 provides "[t]he [writ] application must be made on affidavit by the party beneficially interested,” we hold a signed verification is not a jurisdictional requirement. RCW 7.16.340 directs us to apply the civil rules in writ proceedings. Since the Legislature enacted RCW 7.16.050 in 1895, we have adopted civil rules that place substance over form and aim to resolve cases on the merits.

"[T]he basic purpose of the new rules of civil procedure is to eliminate or at least to minimize technical miscarriages of justice inherent in archaic procedural concepts once characterized ... as 'the sporting theory of justice.’ ” Thus, whenever possible, the rules of civil procedure should be applied in such a way that substance will prevail over form.

(Citations omitted.) First Fed. Sav. & Loan Ass’n v. Ekanger, 93 Wn.2d 777, 781, 613 P.2d 129 (1980) (quoting Curtis Lumber Co. v. Sortor, 83 Wn.2d 764, 767, 522 P.2d 822 (1974)). Greacen’s and the City’s argument that a signed verification is a jurisdictional requirement is totally inconsistent with the purpose of the civil rules as well as the appellate rules.⁴

Greacen’s and the City’s position is also at odds with In re Messmer, 52 Wn.2d 510, 326 P.2d 1004 (1958), where we held that a defective affidavit does not deprive the court of jurisdiction as long as the application and accompanying affidavit are timely. In Messmer, the affidavit was signed by the petitioner’s attorney rather than the beneficially interested party. We held the petition should not be dismissed for lack of jurisdiction on the basis the appellate rules admonish the court to determine all cases upon the merits and to disregard technicalities. In re Messmer, 52 Wn.2d at 512. Under Messmer, the omission of a verification signed by the beneficially interested party does not deprive the court of jurisdiction as long as the petition and affidavit are timely. Because Griffith’s petition and verification were timely, the Superior Court had jurisdiction regardless of the missing signature.

The City and Greacen principally rely on Birch Bay Trailer Sales, Inc. v. Whatcom County, 65 Wn. App. 739, 829 P.2d 1109, review denied, 119 Wn.2d 1023 (1992), and Sterling v. County of Spokane, 31 Wn. App. 467, 642 P.2d 1255, review denied, 31 Wn.2d 1041 (1982) for the proposition a signed verification is jurisdictional. Their reliance on these cases is misplaced.

In Birch Bay, the petition was filed one day late. The Court of Appeals held the petition was untimely and thus the superior court did not have jurisdiction. Birch Bay, 65 Wn. App. at 744. Although this holding resolved the case, the Court of Appeals went on to hold the petition was also defective because it was neither verified nor accompanied by an affidavit. The court cited Sterling for the proposition a petitioner has 90 days from the date the application is filed to cure it and pointed out that the petitioners had failed to submit an affidavit or verification within that time period. Birch Bay, 65 Wn. App. at 745. This part of Birch Bay is dicta given the court’s resolution of the timeliness issue. Even so, Birch Bay is distinguishable because the petitioner failed to even file an affidavit. Moreover, by allowing a 90-day cure period, the court acknowledged the superior court would have acquired jurisdiction had the application been timely regardless of the missing verification or affidavit.⁵

In Sterling, the superior court dismissed the writ application on the basis the petitioner did not have standing to file the application because he had not participated in the administrative proceedings. Sterling, 31 Wn. App. at 471. The Court of Appeals affirmed on this basis and also held a party has 90 days from the time the application is filed to file an affidavit, explaining:

Where an applicant has filed within the applicable time period, he has an additional 90 days to serve necessary parties. We apply this rule to the filing of petitions for writs of certiorari and supporting affidavits. Wolffs affidavit was filed within the 90-day period and therefore should have been considered by the trial court.

Sterling, 31 Wn. App. at 472 (citations omitted).

The Court of Appeals in Sterling properly looked to the civil rules to determine the procedure governing writ proceedings. In this case, the proper rule for determining whether a timely application should be dismissed for lack of a signature is CR 11. The purpose of the verification requirement is to assure the truthfulness of the pleadings and to discourage claims without merit, which is also the purpose of CR 11. The Superior Court should have applied CR 11 and dismissed the application only if Griffith failed to sign the verification promptly after the omission was called to his attention.

We reverse the Superior Court and the Court of Appeals and order the writ to be reinstated.

Durham, C.J., and Dolliver, Smith, Guy, Madsen, and Talmadge, JJ., concur.

1 Under Bellevue’s land use code, Griffith had 20 days from the effective date of the City Council decision to appeal to superior court by way of writ of certiorari. The effective date of the City Council decision was October 18, 1993; Griffith filed the petition on November 8,1993.

2 A verification may be substituted for an affidavit. Gordon v. Seattle-First Nat’l Bank, 49 Wn.2d 728, 731, 306 P.2d 739 (1957); RCW 9A.72.085. The verification stated: "I am one of the plaintiffs above named; I have read the foregoing Petition for Writ of Certiorari to Review Governmental Action, know the contents thereof and believe the same to be true.

I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct to the best of my knowledge and belief.

DATED this_day of_, 1993 at Seattle, Washington.

Clerk’s Papers at 16.

3 The verification served on the City of Bellevue was signed by petitioner H. Graham Gaiser.

4 See also RCW 4.36.240 ("The court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not affect the substantial rights of the adverse party”); RAP 1.2(a) ("Cases . . . will not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands”); RAP 18.8 ("The appellate court may . . . enlarge or shorten the time within which an act must be done in a particular case in order to serve the ends of justice”); State v. Ashbaugh, 90 Wn.2d 432, 583 P.2d 1206 (1978) (filing fee for notice of appeal is not a jurisdictional requirement even though RAP 5.1(b) provides filing fee "must” be paid at the time the notice of appeal is filed).

5 See ROW 4.28.020 (court acquires jurisdiction when the complaint is filed or the summons is served).