S.M. v. CROSS, 120 Wn. App. 1018 (2004)

S.M., Appellant, v. R. GRAHAM CROSS; COUNTY OF COWLITZ, Respondents.

No. 29859-7-II.The Court of Appeals of Washington, Division Two.
Filed: February 17, 2004. UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Clark County. Docket No: 02-2-02770-2. Judgment or order under review. Date filed: 12/13/2002. Judge Signing: Hon. John F. Nichols.

Counsel for Appellant(s), Mark Gregory Olson, Attorney at Law, 2825 Colby Ave Ste 302, Everett, WA 98201-3558.

Counsel for Respondent(s), Ronald S. Marshall, Attorney at Law, Hall of Jstc, 312 SW 1st Ave, Kelso, WA 98626-1739.

Dennis Raymond Duggan, Duggan Schlotfeldt Welch Law Firm, 900 Washington St. Ste 1020, Vancouver, WA 98660-3455.

QUINN-BRINTNALL, J.

S.M. seeks review of a Clark County Superior Court decision dismissing his claim against Cowlitz County.[1] The claim was based on allegations of malpractice in the legal representation the County provided S.M. for defense of three charges of first degree child rape. S.M. pleaded guilty, but this court subsequently reversed the convictions, finding that S.M.’s attorney did not adequately represent him.[2]

S.M. filed this lawsuit in Clark County, an adjoining county. Relying upon Cossel v. Skagit County, 119 Wn.2d 434, 834 P.2d 609 (1992), overruled by Shoop v. Kittitas County, 149 Wn.2d 29, 65 P.3d 1194
(2003), the court dismissed the claim against Cowlitz County, holding that it did not have jurisdiction to decide that matter because Clark County is not one of the two nearest counties as required by RCW 36.01.050.

RCW 36.01.050(1) provides, in pertinent part:

All actions against any county may be commenced in the superior court of such county, or in the superior court of either of the two nearest judicial districts.
Cossel held that the statute is jurisdictional. 119 Wn.2d at 436-37. The Supreme Court overruled Cossel in Shoop, holding that the Cossel interpretation of RCW 36.01.050 is inconsistent with article IV, section 6, of Washington’s Constitution. Specifically, the Court held that the constitutional provision `precludes any subject matter restrictions as among superior courts.’ Shoop, 149 Wn.2d at 37. The filing requirements of RCW 36.01.050 relate only to venue; the superior court should not have dismissed the claim.

Reversed and remanded with directions to transfer the case in accordance with RCW 36.01.050.

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 pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG, J. and HUNT, C.J., concur.

[1] This matter is not appealable as the claim against R. Graham Cross was not dismissed. See letter from this court dated February 24, 2003. We grant review pursuant to RAP 2.3(b)(2).

[2] State v. S.M., 100 Wn. App. 401, 996 P.2d 1111 (2000).