No. 24021-5-III.The Court of Appeals of Washington, Division Three.
Filed: April 11, 2006.
UNPUBLISHED OPINION
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from Superior Court of Franklin County. Docket No: 05-2-50133-5. Judgment or order under review. Date filed: 03/28/2005. Judge signing: Hon. Vic L. Vanderschoor.
Counsel for Appellant(s), Bourtai Hargrove, Attorney at Law, 9822 Dempsey Ln SW, Olympia, WA 98512-8547.
Counsel for Respondent(s), Jeffrey Bennett Youmans, Davis Wright Tremaine, 1501 4th Ave Ste 2600, Seattle, WA 98101-1688.
KATO, C.J.
The Department of Labor and Industries (Department) appealed a Board of Industrial Insurance Appeals (Board) decision vacating a safety and health violation against Tyson Foods Inc./IBP (Tyson). Claiming the trial court lacked subject matter jurisdiction, Tyson moved for dismissal. The court granted the motion. We reverse and remand for further proceedings.
On September 17, 2003, the Department cited Tyson with two safety and health violations[1] pursuant to the Washington Industrial Safety and Health Act.[2] Tyson appealed the citations to the Board. On November 9, 2004, the industrial appeals judge vacated one of the violations and affirmed the other. The Department filed a petition for review with the Board, which was denied. The judge’s proposed decision and order became the Board’s decision. On February 2, 2005, the Department sought review in Franklin County Superior Court of the Board’s decision.
The alleged violations occurred in Tyson’s plant in Walla Walla County. Based on the plant’s location, Tyson moved to dismiss the action because the court lacked subject matter jurisdiction. The court agreed and dismissed the case. This appeal follows.
The Department contends the court erred when it dismissed the case for lack of subject matter jurisdiction. The standard of review is de novo. Crosby v. Spokane County, 137 Wn.2d 296, 301, 971 P.2d 32 (1999).
The starting point of inquiry is whether RCW 49.17.150 contains a county-of-filing provision. If it does, it must then be determined whether the provision is venue-related or a jurisdictional prerequisite. If relating to venue, the remedy for filing in the wrong county is a change of venue. Dougherty v. Dep’t of Labor Indus., 150 Wn.2d 310, 315, 76 P.3d 1183 (2003). But if the county-of-filing provision is a jurisdictional prerequisite and suit was brought in the wrong county, the remedy is dismissal. Shoop v. Kittitas County, 149 Wn.2d 29, 35, 65 P.3d 1194 (2003).
The parties agree RCW 49.17.150 contains a county-of-filing provision:
`[a]ny person aggrieved by an order of the board of industrial insurance . . . may obtain a review of such order in the superior court for the county in which the violation is alleged to have occurred.’
The next inquiry is whether the provision is venue-related or a jurisdictional requirement. In distinguishing venue from jurisdiction, our Supreme Court has noted venue is concerned with location, whereas jurisdiction deals with the type of controversy. Dougherty, 150 Wn.2d at 316. It noted that venue related to the place of a proceeding. In other words, `it `is the place where the power to adjudicate is to be exercised, that is, the place where the suit may or should be heard.” Id. (quoting 77 Am. Jur. 2d Venue sec. 1, at 608 (1997)).
As to jurisdiction, the court stated the location, or venue, of a controversy did not determine subject matter jurisdiction. Id. Statutes that `require actions to be brought in certain counties are generally regarded as specifying the proper venue and `are ordinarily construed not to limit jurisdiction of the state courts to the courts of the counties thus designated.” Id. (quoting 77 Am. Jur. 2d Venue sec. 44, at 651 (1997)).
All superior courts in Washington possess the same power to adjudicate an appeal from the Board. Id. at 317. The Dougherty court noted that if one superior court had power to hear an appeal from the Board, there was no jurisdictional reason why another superior court did not have that same power. Id. Consequently, subject matter jurisdiction of the superior court does not vary from county to county. Id.
In Dougherty, our Supreme Court held that a county-of-filing provision was a venue-related provision rather than a jurisdictional prerequisite. Id. at 313. The statute in question there was RCW 51.52.110, which states in pertinent part: `[i]n cases involving injured workers, an appeal to the superior court shall be to the superior court of the county of residence of the worker . . . or to the superior court of the county wherein the injury occurred.’
Similarly here, the county-of-filing provisions of RCW 49.17.150(1) are venue-related and not jurisdictional. The statute provides in relevant part that `[a]ny person aggrieved by an order of the board of industrial insurance . . . may obtain a review of such order in the superior court for the county in which the violation is alleged to have occurred.’ It merely prescribes the location where the action is to be brought and does not relate to jurisdiction. The court erred by dismissing the case on jurisdictional grounds.
Reversed and remanded for further proceedings.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and BROWN, JJ., concur.