§ 11.3 Rule-Based Exceptions to The General Rule

• Jurisdiction: Washington

§11.3 RULE-BASED EXCEPTIONS TO THE GENERAL RULE

This section addresses the case law treatment of the express exceptions in RAP 2.5(a) to the general rule: (1) lack of trial court jurisdiction; (2) failure to establish facts upon which relief can be granted; (3) manifest error affecting a constitutional right; and (4) lack of appellate court jurisdiction. This section also addresses an exception that stems from RAP 2.4(a), regarding errors that would be prejudicial to a respondent on remand.

(1) Lack of trial court jurisdiction

Under RAP 2.5(a)(1), the first exception to the general rule against raising new issues on review is a "lack of trial court jurisdiction." See, e.g., Fowlkes v. IBEW, Local No. 76,58 Wn.App. 759, 764, 795 P.2d 137, 808 P.2d 1166 (1990) (issue of state court preemption by exclusive jurisdiction of National Labor Relations Board could be raised for first time on review), review denied,117 Wn.2d 1019 (1991), cert. denied, 502 U.S. 1099 (1992). This exception encompasses both subject matter and personal jurisdiction. See Burns v. Stolze,111 Wash. 392, 191 P. 642 (1920) (pre-RAP case). Although a party's right to assert lack of personal jurisdiction may be waived, parties may not waive lack of subject matter jurisdiction. Skagit Surveyors & Eng'rs, LLC v. Friends of Skagit Cnty.,135 Wn.2d 542, 556, 958 P.2d 962 (1998). Thus, "[a]ny party to an appeal, including one who was properly served, may raise the issue of lack of subject matter jurisdiction at any time." Id. However, the court has emphasized that the subject matter jurisdiction exception under RAP 2.5(a)(1) is narrowly construed because "[t]he very broad subject matter jurisdiction of the superior court is defined by the state constitution, not by statutes." Cole v. Harveyland, 163 Wn.App. 199, 206, 258 P.3d 70 (2011).

A trial court's jurisdiction over an appeal from an administrative agency also falls within this exception. See In re Saltis,94 Wn.2d 889, 621 P.2d 716 (1980) (whether notice of appeal from agency decision had been properly served); Clark v. Selah Sch. Dist. No. 119,53 Wn.App. 832, 770 P.2d 1062 (whether petition for court review had been filed timely), review denied,113 Wn.2d 1003 (1989); cf. Woodward v. City of Spokane,51 Wn.App. 900, 905, 756 P.2d 156 (request for review under trial court's inherent power to review acts of administrative agencies, pursuant to common-law certiorari, was a new legal theory for obtaining relief rather than an argument regarding the trial court's jurisdiction, which had properly been invoked pursuant to a specific statute; because the new theory had not been raised below, it was waived), review denied, 111 Wn.2d 1027 (1988). See §11.2(3) ("New issue versus new authority").

In State v. Paine,69 Wn.App. 873, 884, 850 P.2d 1369, review denied,122 Wn.2d 1024 (1993), the Court of Appeals acknowledged the issue whether the term "lack of trial court jurisdiction" in RAP 2.5(a)(1) "was intended to change the rule from no jurisdiction to hear the case to one where the trial court lacked subject matter jurisdiction to enter a particular sentence" (the particular issue before the court). 69 Wn.App. at 884. Without resolving that issue, but implicitly recognizing the issue was whether the trial court had authority to impose the challenged sentence, the court decided the case on the basis of "a common law rule that when a sentencing court acts without statutory authority in imposing a sentence, that error can be addressed for the first time on appeal." Id. In State v. Fleming,75 Wn.App. 270, 276 n.3, 877 P.2d 243 (1994), petition dismissed,129 Wn.2d 529 (1996), a case from the same division, the court appeared to resolve the issue without discussion in a footnote. The court agreed to decide whether the trial court had improperly ordered restitution, though the issue had not been raised below, because "if the trial court improperly ordered restitution for the $300, it was outside of its statutory authority, a challenge which can be made for the first time on appeal." 75 Wn.App. at 276 n.3 (citing both RAP 2.5(a)(1) and Paine,69 Wn.App. 873).

In Leavitt v. Jefferson County,74 Wn.App. 668, 673-74, 875 P.2d 681 (1994), the court held that RAP 2.5(a)(1) "mandate[d] review" of the issue, first raised on appeal, whether the trial court exceeded its jurisdiction when it reviewed a legislative act by means of a statutory writ of certiorari. The Leavitt court held that the trial court had exceeded its jurisdiction, but that the application for a statutory writ would be treated as an application for a constitutional or common-law writ.

(2) Failure to establish facts upon which relief can be granted

The second exception to the general rule is a party's "failure to establish facts upon which relief can be granted." RAP 2.5(a)(2). According to the Advisory Task Force on Appellate Rules, "[this exception] uses the phrase 'failure to establish facts' rather than the traditional 'failure to state a claim'" because "[t]he former phrase more accurately expresses the meaning of the rule in modern practice." Rules of Appellate Procedure (RAP), Rule 2.5 cmt. (a), 86 Wn.2d 1133, 1152 (1976). But see Roberson v. Perez,156 Wn.2d 33, 40, 123 P.3d 844 (2005) (noting that, for purposes of RAP 2.5(a)(2), "the terms 'failure to establish facts upon which relief can be granted' and...