Paul Uminski v. Clark County

Filed
Washington State
Court of Appeals
Division Two
July 21, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
PAUL UMINSKI, No. 53007-4-II
Respondent,
v.
CLARK COUNTY, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Clark County (County), a self-insured employer, appeals from the superior
court’s order denying the County’s motion to dismiss Paul Uminski’s appeal to the superior court
of the denial of his worker’s compensation claim against the County. Because the record does not
establish that the Director of the Department of Labor and Industries (Director) was served with
or had actual notice of Uminski’s appeal, we reverse the superior court’s denial of the County’s
motion to dismiss and remand this matter to the superior court to dismiss the appeal.1
FACTS
I. BACKGROUND
Paul Uminski was working as a deputy sheriff in Clark County when he was diagnosed
with carpal tunnel syndrome. Uminski filed a workers’ compensation claim with the Department
1
Because we reverse based on no proof of actual notice, we do not address the County’s arguments
regarding fortuitous knowledge, attorney of record, or the inapplicability of substantial compliance
for statutory timelines.
No. 53007-4-II
of Labor and Industries (Department). The Department denied the claim, and the Board of
Industrial Insurance Appeals (Board) affirmed the Department’s decision.
Uminski filed a notice of appeal with the superior court. Uminski’s certificate of service
stated that he served the notice of appeal on the Board’s counsel and on the County’s counsel. The
certificate of service did not show service on the Director, the Department, or the Department’s
counsel. The parties do not dispute that Uminski did not serve the Director, the Department, or the
Department’s counsel.
II. COUNTY’S MOTION TO DISMISS
The County moved to dismiss the appeal, arguing that superior court lacked jurisdiction
because Uminski had not served the Director as required under RCW 51.52.110. In support of the
motion to dismiss, the County attached an affidavit from Roxanne Yaconetti, the “correspondence
liaison for the Director.” Clerk’s Papers (CP) at 19. Yaconetti described the normal process for
processing appeals from Board decisions. She stated that there was no record of the Director having
received a notice of appeal to the superior court in this matter.
Uminski opposed the motion to dismiss. Although he admitted that he had not served the
notice of appeal in a manner reasonably calculated to give the Director notice, Uminski argued
that the Director had actual notice of the appeal. Uminski asserted that there was proof of actual
notice because Assistant Attorney General (AAG) James Johnson “filed the Department’s Notice
of Non-Participation with Clark County superior Court” and that actual notice to the AAG was
sufficient. CP at 22.
In support of his argument, Uminski attached a declaration from Johnson. Johnson stated
that he was “an [AAG] assigned to the Labor and Industries Division of the Attorney General’s
Office [(AGO)].” CP at 23. On June 14, 2018, “the Labor and Industries Division of the [AGO]
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No. 53007-4-II
received” a copy of the notice of appeal filed by Uminski. CP at 23. Johnson did not explain how
the AGO obtained a copy of the notice of appeal.2
Johnson further stated,
The Department does not appear and participate in all superior court appeals
involving self-insured employers. Therefore, that same day, June 14, 2018, AGO
staff forwarded to me and other attorneys copies of [notice of appeal] so we could
decide whether the Department of Labor and Industries would actively participate
in the case. By June 15, 2018, we had decided not to participate.
CP at 23-24. Johnson commented, “The decision not to participate meant that I was the attorney
of record assigned to the appeal, and would file a notice of non-participation, as I later did.” CP at
24.
The County responded that Uminski had not established substantial compliance with the
service requirement under RCW 51.52.110 because substantial compliance requires an actual
attempt to comply with the service requirement, not just the incidental actual notice that occurred
here. The County also asserted that notice to an AAG was not the same as the Director receiving
notice.
The superior court denied the County’s motion to dismiss:
Well, the issue is whether I have jurisdiction because of the substantial
compliance because that term is used in various cases, including Black vs. Labor &
Industries[,131 Wn.2d 547, 555, 933 P.2d 1025 (1997)]. It’s not whether there’s
any prejudice. Apparently, it’s not a standing issue. It’s basically a subject matter
jurisdiction issue because the person raising it did receive notice within the time
limits and everybody else received it. So, it’s just a question of whether under these
circumstances where the claimant, or the person filing the appeal, didn’t serve the
documents, but the documents got over to the attorneys that were in the position to
make the decision, whether that constitutes substantial compliance for jurisdictional
purposes under Black. I find that it does; I deny the Motion to Dismiss.
2
At the hearing on the motion to dismiss, the County asserted that the Board had forwarded a copy
of the notice of appeal to the AGO.
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No. 53007-4-II
RP at 5; CP at 36.
The County sought discretionary review. We granted review.
ANALYSIS
The County argues that the superior court erred in denying the motion to dismiss because
Uminski failed to demonstrate that he served the Director as required by RCW 51.52.110. Because
the record does not contain any evidence that the Director had actual notice of the appeal, we hold
that Uminski has not established substantial compliance with the service requirement, and
therefore, the trial court erred in denying the County’s motion to dismiss.
I. LEGAL PRINCIPLES
When reviewing a Board decision, the superior court acts in its limited appellate capacity.
Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 197, 796 P.2d 412 (1990). Thus, the appealing party
must comply with RCW 51.52.110 for the superior court to have jurisdiction over an appeal from
a Board decision. Fay, 115 Wn.2d at 198. “Whether a court has subject matter jurisdiction is a
question of law reviewed de novo.” Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310, 314,
76 P.3d 1183 (2003) (citing Crosby v. Spokane County, 137 Wn.2d 296, 301, 971 P.2d 32 (1999).
Under RCW 51.52.110, the party appealing the Board’s decision must file his or her notice
of appeal with the clerk of the court and serve the Director, the Board, and the self-insured party
within 30 days of a final order or notice of the final order. Generally, if the appealing party fails to
timely serve the Director, dismissal of the appeal is required. See Krawiec v. Red Dot Corp., 189
Wn. App. 234, 239, 354 P.3d 854 (2015).
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No. 53007-4-II
But “the modern preference of courts [is] to interpret their procedural rules to allow
creditable appeals to be addressed on the merits absent serious prejudice to other parties.”3 Graham
Thrift Grp., Inc. v. Pierce Cty., 75 Wn. App. 263, 268, 877 P.2d 228 (1994). Thus, “[s]ubstantial
compliance with the terms of RCW 51.52.110 is . . . sufficient to invoke the superior court’s
appellate jurisdiction.” Hernandez v. Dep’t of Labor & Indus., 107 Wn. App. 190, 195, 26 P.3d
977 (2001) (citing In re Saltis, 94 Wn.2d 889, 895-96, 621 P.2d 716 (1980)).
“‘Substantial compliance is generally defined as actual compliance with the substance
essential to every reasonable objective of a statute.’” Krawiec, 189 Wn. App. at 241 (quoting
Hernandez, 107 Wn. App. at 196 (internal quotation marks omitted). The objective of RCW
51.52.110’s service requirement “is a practical one meant to insure that interested parties receive
actual notice of appeals of Board decisions.” Saltis, 94 Wn.2d at 895.
Substantial compliance with RCW 51.52.110 occurs when “(1) the [D]irector received
actual notice of appeal to the superior court; or (2) the notice of appeal was served in a manner
reasonably calculated to give notice to the [D]irector.” Saltis, 94 Wn.2d at 896. Our Supreme Court
has also held that service on the AAG assigned to represent the Department in the matter being
3
Citing Graham Thrift Group, Uminski appears to contend that the superior court had jurisdiction
despite the defect in service because the lack of service was not prejudicial to the Department. But
Graham Thrift Group merely recognizes that “the modern preference of courts to interpret their
procedural rules to allow creditable appeals to be addressed on the merits absent serious prejudice
to other parties.” 75 Wn. App. at 268. RCW 51.52.110 is not, however, a court’s procedural rule,
nor does Graham Thrift Group stand for the proposition that failure to comply or substantially
comply with a jurisdictional service requirement is irrelevant as long as a party is not prejudiced
by lack of service. The substantial compliance doctrine itself is an acknowledgment of the modern
preference of allowing appeals to proceed despite service issues—the preference does not,
however, require that the courts entirely ignore statutory service requirements. Black, 131 Wn.2d
at 552-53.
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No. 53007-4-II
appealed “is reasonably calculated to give notice to the interested party.” Black, 131 Wn.2d at 555(following Vasquez v. Dept. of Labor & Indus., 44 Wn. App. 379, 722 P.2d 854 (1986)).
II. NO PROOF OF THE DIRECTOR’S ACTUAL NOTICE
Here, although, under Black, service on the AAG might have been sufficient to establish
that Uminski served the notice of appeal in a manner reasonably calculated to give notice to the
Director, there was no service on the AGO or Johnson, and Uminski does not argue that he served
the notice of appeal in a manner reasonably calculated to give notice to the Director. Instead,
Uminski argues that he has established that the Department, the real party in interest, had actual
notice of the appeal because Department determined that it would not participate in the appeal.
To establish actual notice, there had to be some evidence that the Director, actually received
notice of the appeal. At best, the record shows that Johnson, who later became the Department’s
attorney of record in this matter, had actual notice of the appeal and that he and other attorneys
played a role in deciding whether the Department would participate in the appeal.
As noted above, Johnson’s declaration stated,
The Department does not appear and participate in all superior court appeals
involving self-insured employers. Therefore, that same day, June 14, 2018, AGO
staff forwarded to me and other attorneys copies of [notice of appeal] so we could
decide whether the Department of Labor and Industries would actively participate
in the case. By June 15, 2018, we had decided not to participate.
CP at 23-24 (emphasis added). This statement establishes that Johnson and “other attorneys” were
involved in deciding whether the Department would participate. But Johnson does not mention
that the Department or Director actually participated in this decision. And there is nothing in the
record establishing that the Department or Director are routinely consulted when the decisions
about whether to participate in a case are made by the AGO.
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No. 53007-4-II
It is mere conjecture that any direct communication with the Director about the notice of
appeal occurred. Without something in the record affirmatively establishing that the Director
participated in the decision, Uminski fails to show that the Director had actual knowledge of the
appeal.
We note that Uminski cites no authority establishing that an AAG’s knowledge can be
imputed to the Director, and we assume there is no such authority. Hood Canal Sand & Gravel,
LLC v. Goldmark, 195 Wn. App. 284, 296-97, 381 P.3d 95 (2016) (quoting DeHeer v. Seattle
Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). And although Black is similar to
this case in many ways, it is not helpful because it addressed whether the notice of appeal was
served in a manner reasonably calculated to give notice to the Director and it does not address
whether an AAG’s actual notice would alone be sufficient to show that the Director had actual
notice.
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No. 53007-4-II
Because Uminski fails to show that the Director had actual notice of the appeal, we reverse
the superior court’s denial of the County’s motion to dismiss and remand for dismissal of the
appeal.
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.
CRUSER, J.
We concur:
MAXA, J.
LEE, C.J.
8