Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rupert v. King County

May 12, 1997

FREDERICK AND JUDITH RUPERT, APPELLANTS,
v.
KING COUNTY; STANLEY AND MARGARET FAGG; HARRY AND TRUDY ANGEL, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 96-2-10773-5. Date filed: 07/02/96. Judge signing: Hon. James W. Bates Jr.

PER CURIAM -- Frederick and Judith Rupert (Rupert) and five other individuals sought review of shoreline substantial development permits issued to Stanley and Margaret Fagg (Fagg) and Harry and Trudy Angel (Angel). The Shorelines Hearings Board affirmed issuance, and Rupert appealed to superior court. The court dismissed the petition for failure to comply with the requirements of the Administrative Procedure Act (APA), RCW 34.05.542(2). Because Rupert failed to timely serve the parties under the statute, we affirm the dismissal.

FACTS

The Board entered its final order on March 19, 1996. Rupert alone appealed the order. The parties agree that the 30-day period for appeal to superior court ended on April 18, 1996. On that day, a legal messenger served the petition on the attorney of record for Angel and Fagg. Rupert also hired a process server to serve copies of the petition on Fagg and Angel at their adjacent residences. From 6:00 p.m. until midnight, the process server attempted several times to contact them by knocking at their doors and yelling. He was unsuccessful, left at midnight and returned the next morning, April 19, when he served them. Rupert never served the petition on the other individuals who had previously joined in the appeal to the Board.

King County, Fagg, and Angel moved for dismissal of the petition for review, alleging Rupert failed to comply with RCW 34.05.542(2) *fn1 and the superior court thus lacked appellate jurisdiction to hear the matter. The court granted the motion to dismiss.

DECISION

In reviewing an administrative decision, the superior court acts in its limited appellate capacity, and all statutory requirements must be met before the court's appellate jurisdiction is properly invoked. Seattle v. Public Employment Relations Commission, 116 Wash. 2d 923, 926, 809 P.2d 1377 (1991). Consequently, under the APA, the superior court does not obtain jurisdiction of an appeal unless the appealing party files a petition for review in superior court and serves the petition on all parties. RCW 34.05.542(2); Seattle v. PERC, 116 Wash. 2d at 926. RCW 34.05.542(2) requires service on "all parties of record within thirty days after service of the final order."

There is no dispute that Rupert failed to strictly comply with the service requirements when they did not serve the parties within the 30-day period. Rupert contends, however, that service on the parties' attorney, together with attempted service upon Angel/Fagg on the 30th day, followed by successful service on the 31st day, constituted substantial compliance with the service requirements of RCW 34.05.542 (2).

We disagree. In Seattle v. PERC, 116 Wash. 2d at 928, the Supreme Court expressly did not decide whether the doctrine of substantial compliance applied to the APA in general. But the court held that it is impossible to substantially comply with a time limit in the same way that one might substantially comply with other requirements. A deadline is either complied with or it is not. Seattle v. PERC, 116 Wash. 2d at 923-29. Accord, Clymer v. Department of Employment Security, 82 Wash. App. 25, 917 P.2d 1091 (1996) (attorney's good faith but abortive attempt to timely file a notice of appeal by a legal messenger did not comply with the statute). Consequently, the fact that Rupert attempted to serve within the 30 days does not save the appeal.

Nor does the fact that Rupert served Fagg's and Angel's attorney on the 30th day bolster their argument of substantial compliance. In Union Bay v. Cosmos Development, 127 Wash. 2d 614, 902 P.2d 1247 (1995), the Supreme Court held that the "unequivocal" definition of "party" *fn2 in the APA does not allow service of a petition upon attorneys rather than parties. The Court refused to apply the doctrine of substantial compliance to those facts.

In view of courts' refusal to apply the doctrine of substantial compliance to time requirements of the APA, we reject Rupert's argument that the doctrine should be applied in this case. The failure to timely serve the parties rather than their attorney bars the appeal. Seattle v. PERC, 116 Wash. 2d at 926; Union Bay v. Cosmos Development, 127 Wash. 2d at 618-19.

In view of this decision, we need not address Rupert's additional argument that they were not required to serve the petition for review on their former co-appellants before the Board.

Affirme ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.