§82.6 Analysis

• Jurisdiction: Washington

§82.6ANALYSIS

Although venue concerns which court, having the power or jurisdiction over the case, is the proper one to hear it, venue can be transitory or local. Such a distinction determines the power of the court to hear the action and whether improper venue can be waived.

(1) Venue versus jurisdiction

Venue determines the place where an action is to be tried. Jurisdiction involves the power of a court to decide a matter. Unlike jurisdiction, which cannot be waived, venue can be waived if not timely raised. See In re Guardianship of Marshall, 46 Wn.App. 339, 731P.2d5 (1986). Once an objection to improper venue has been waived, a judgment cannot be attacked on that ground.

CR 82 cannot affect statutes that are jurisdictional in character. See generally 4 Karl B. Tegland, Washington Practice: Rules Practice CR 82 (6th ed. 2013). For example, statutes governing venue for actions relating to real and personal property are jurisdictional in character. E.g., RCW 4.12.010. Such local actions cannot be commenced in an improper venue, even upon the stipulation of all parties. Miles v. Chinto Mining Co., 21 Wn.2d 902, 904, 153P.2d856 (1944). Conversely, CR 82(a) covers venue for transitory actions, which are not affected by those statutes. See discussion in §82.5, below.

(2)Local actions

Local actions are those so closely involving real or personal property that they must be commenced in the county in which the property is located. Statutes governing such actions are jurisdictional in nature and cannot be waived. See RCW 2.08.210; RCW 4.12.010; Miles, 21 Wn.2d at 904.

In practice, determining whether an action involvingreal or personal property is transitory or local (and therefore governed by statute) is difficult. If the relief sought is equitable, the court is more likely to regard the action as transitory on the basis that equity acts in personam. The following have been held to be transitory actions: an action for specific performance of a real estate contract, Morgan v. Bell, 3 Wash. 554, 28 P. 925 (1892); an action to impose a trust, Donaldson v. Greenwood, 40 Wn.2d 238, 242 P.2d 1038 (1952); an action to reform a deed, Rosenbaum v. Evans, 63 Wash. 506, 115 P. 1054 (1911); and an action to cancel a note and mortgage on real estate, State ex rel. Martin v. Superior Court of Grant Cnty., 97 Wash. 358, 166 P. 630 (1917). However, actions for foreclosure of real property mortgages are local actions. Shedden v. Sylvester, 88 Wash. 348, 153 P. 1 (1915). Additionally, actions for possession of real estate and for injuries to real estate are made local actions by statute. Alaska Airlines v. Molitor, 43 Wn.2d 657, 263P.2d276 (1953); N. Bend Lumber Co. v. City of Seattle, 147 Wash. 330, 266 P. 156 (1928).

Once commenced in the proper place, even local actions are subject to change of venue for the convenience of witnesses or to obtain a fair and impartial trial. Russell v. Marenakos Logging Co., 61 Wn.2d 761, 380P.2d744 (1963).

(3)Transitory actions

A transitory action is one that could have arisen in any place. A transitory action can be commenced anywhere a defendant resides. Wash. State Bank v. Medalia Healthcare, L.L.C, 96 Wn.App. 547, 984P.2d1041 (1999), review denied, 140 Wn.2d 1007 (2000). It can be brought in any county where the defendant can be found and jurisdiction obtained unless there is a statute to the contrary. Pub. Util. Dist. No. 1 v. Puget Sound Power & Light Co., 43 Wn.2d 1, 4, 260P.2d315 (1953); see RCW 4.12.025. Regardless of where a transitory action may be filed, a defendant has an absolute right to have it tried in the county of his or her residence. Schroeder v. Schroeder, 74 Wn.2d 853, 856, 447P.2d604 (1968). Such right is waived, however, if the defendant does not raise it in his or her answer or by pretrial motion. Old Nat'l Bank of Wash. v. Rainier Bancorp., 18 Wn.App. 353,356-57,567 P.2d 695 (1977).

Transitory actions include those for conversion or for monetary recovery, Wash. State Bank, 96 Wn.App. 547, and malicious prosecution and false imprisonment, State ex rel. Hand v. Superior Court of Grays Harbor Cnty., 191 Wash. 98, 71P.2d24 (1937). Also see the discussion in §82.6(2), above.

The general venue statute, RCW 4.12.025, provides that the county of a defendant's residence is the place to commence a transitory action. A defendant corporation resides in any county where it does business, has an office, or transacted business at the time the claim arose, or where the person resides upon whom process may be served upon the corporation. RCW 4.12.025(1). The plaintiff has the option of suing a corporate defendant in the county of the corporation's residence, the county where the tort occurred, the county where the work was performed for the corporation, or the county where an agreement was entered into. RCW 4.12.025(3).

RCW 4.12.025 was last amended in 1998. RCW 4.12.025(1) was not changed. Former RCW 4.12.025(2) became RCW 4.12.025(3), and current RCW 4.12.025(2) now provides that "[a]n action upon the unlawful issuance of a check or draft may be brought in any county in which the defendant resides or may be brought in any division of the judicial district in which the check was issued or presented as payment."

(4)Special forms of action

Special forms of action cover statutory actions against specific defendants or involving specialized causes of action.

(a)Penalties, public officers, injury to person or personal property

RCW 4.12.020, which previously governed actions for the recovery of penalties, actions against public officers for acts done by virtue of their office, and actions arising from motor vehicle accidents, was expanded in 2001 to also apply to all actions for the recovery of damages for injuries to the person or personal property. Laws of 2001, ch. 45, §2. The statute provides that such actions shall be brought in the county where some part of the cause arose. Actions for personal injury or injury to personal property may also be brought in the county where the defendant resides at the time the action is commenced, or, if there is more than one defendant, where one of the defendants resides. RCW 4.12.020(3).

A suit against a public official must be commenced where some part of the cause of action arose. Because this provision of the statute has no alternative venue, a defendant does not have an absolute right to transfer the case to the county of the defendant's residence. Whitney v. City of Seattle, 40 Wn.2d 228, 242 P.2d 178 (1952). A public official is entitled to a change of venue to have a fair trial or for other valid reason, however. See RCW 4.12.030.

Formerly, RCW 4.12.020 was considered jurisdictional in nature. See, e.g., Aydellotte v. Audette, 110 Wn.2d 249, 750 P.2d 1276 (1988). However, in Young v. Clark, 149 Wn.2d 130, 134, 65 P.3d 1192 (2003), the Washington Supreme Court overruled Aydellote and held that RCW 4.12.020 relates only to venue and not to jurisdiction. Thus, the proper remedy for improper venue is a motion for change of venue, not a motion for dismissal.

(b)Actions against the state

RCW4.92.010 allows actions against the state to be commenced in the county of one of the plaintiff's residence or principal place of business, the county where the cause of action arose, the county where the real property that is the subject of the action is located, the county where an additional defendant may be properly joined, or in Thurston County. Although Washington courts once considered improper venue as grounds for dismissal, as held by State ex rel. Thielicke v. Superior Court for Thurston County, 9 Wn.2d 309,114 P.2d 1001 (1941), that case was superseded by a 1973...