ASPEGREN v. MALLORY, 49937-8-I (Wash.App. 8-19-2002)

No. 49937-8-I.The Court of Appeals of Washington, Division One.
Filed: August 19, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County, No. 012128086, Hon. Gregory Canova, January 4, 2002, Judgment or order under review.

Counsel for Appellant(s), William H. Waechter, 2025 1st Ave Pha, Seattle, WA 98121-2157.

Counsel for Respondent(s), Jeffery R. Lanthorn, 15500 S.E. 30th Pl Ste 201, Bellevue, WA 98007.

Sidney R. Snyder Jr., Merrick Hofstedt Lindsey PS, 710 9th Ave., Seattle, WA 98104.

PER CURIAM.

Following an automobile accident, appellant Courtney Aspegren filed this action for personal injuries in King County Superior Court. Because the accident occurred in Snohomish County and the defendants lived in Snohomish County, the trial court concluded that it lacked subject matter jurisdiction under RCW 4.12.020(3) and dismissed the action on summary judgment. Because the trial court’s interpretation of RCW 4.12.020(3) was mandated by Aydelotte v. Audette,[1] we affirm.

Facts
On May 13, 1998, appellant Courtney Aspegren was involved in an automobile accident with respondent Sharon Mallory. It is undisputed that the accident occurred in Snohomish County and that Mallory is a resident of Snohomish County. On May 2, 2001, Aspegren filed an action for personal injuries against Mallory in King County Superior Court. Mallory moved for summary judgment, arguing that the King County Superior Court lacked jurisdiction under RCW 4.12.020(3) because the accident occurred in Snohomish County and the defendant lived in Snohomish County.

The trial court agreed and dismissed the action with prejudice. The court also concluded that it lacked jurisdiction to grant Aspegren’s motion to transfer venue to Snohomish County.

Decision
On appeal, Aspegren contends that the trial court erred in dismissing her action on summary judgment. She maintains that although her action was mistakenly filed in King County, the trial court incorrectly construed former RCW 4.12.020(3) as a jurisdictional statute.

We review an order of summary judgment de novo and determine whether the materials, viewed in the light most favorable to the nonmoving party, demonstrate `that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’[2] The material facts in this case are undisputed. Under former RCW 4.12.020(3), Aspegren had the option of filing this action in the county where the accident occurred or in the county where the defendants lived at the time of the commencement of the action.[3] In Aydelotte v. Audette, the Supreme Court reviewed a personal injury action against police officers that had been tried in the wrong county under RCW 4.12.020(2).[4]

Expressly rejecting the suggestion that RCW 4.12.020 was a venue statute, the court noted that it had consistently construed the statute as jurisdictional and held that `an action brought under RCW 4.12.020
must be commenced only in those counties specified in the statute.’[5]
Because the action before it had been tried in the wrong county, the court concluded that it must be dismissed for want of jurisdiction.[6]

The Supreme Court reaffirmed the jurisdictional nature of RCW 4.12.020
in Cossel v. Skagit County.[7] The Supreme Court’s construction of RCW 4.12.020 is binding on this court.[8] Under Aydelotte, the trial court lacked jurisdiction because Aspegren’s action was not filed in a county authorized by RCW 4.12.020(3). Consequently, the trial court did not err in dismissing the action on summary judgment.

Contrary to Aspegren’s suggestion, the result in this case is not affected by our recent decision in Shoop v. Kittitas County.[9] In Shoop, the court held that a 1997 amendment manifested legislative intent that RCW 36.01.050 be construed as a venue provision.[10] In so doing, the Legislature effectively corrected an earlier Supreme Court decision that had construed RCW 36.01.050 as jurisdictional.[11] But RCW 36.01.050
governs actions filed against a county. Because Aspegren’s action did not involve a county, the Shoop analysis has no application. No comparable legislative amendment to RCW 4.12.020 was in effect at the time Aspegren filed this action.[12] Indeed, the Shoop court expressly noted the limited scope of its holding and recognized the continued validity of the Aydelotte analysis:

Nevertheless, unless the Supreme Court modifies the holdings of Aydelotte and Cossel, this court must follow those precedents and assume that the Legislature may, by statute, cause the subject matter jurisdiction of each superior court to vary depending on which county is named as a defendant in any particular case. Although we reverse the order dismissing Shoop’s case, we do so only on the basis that the Legislature has now manifested its intent that RCW 36.01.050 is an act relating to venue.[13]

We are aware that the Supreme Court has accepted review of both Shoop v. Kittitas Cy. and Young v. Clark,[14] a decision involving former RCW 4.12.020(3). But until Aydelotte is overruled, Aspegren’s arguments must be directed to the Supreme Court.

Affirmed.