                                                                                                    FILED
                                                                                             COURT OF APPEALS
              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTOl '
                                                                                                    V I S f O N 11

                                                                                            2015 MAR 3f     AM 13: 24
                                                   DIVISION II

                                                                                            STATE
HISTORICAL                 MILITARY       SALES,      INC.                   No. 45615 -0 -II
                                                                                            BY
 UBI: 602078140) and DAVID ROBINSON,


                                        Appellants,


         v.



 CITY OF LAKEWOOD,                                                   UNPUBLISHED OPINION


                                        Respondent.


         MELNICK, J. —          Historical Military Sales, Inc. and owner David Robinson ( collectively,

HMS) sought review of the City of Lakewood' s revocation of HMS' s business license under the

Administrative Procedures Act ( APA),            chapter   34. 05 RCW.   The trial court ruled that it lacked


subject matter jurisdiction to consider the petition because HMS failed to timely serve Lakewood

with a   copy   of   its   petition.   On appeal, HMS argues that the trial court erred by dismissing its

petition for want of subject matter jurisdiction and by denying HMS' s motion to amend its petition

to replace the APA claim with other claims. Because Lakewood is not a state agency to which the

APA applies, the trial court properly dismissed this case without prejudice and without granting

HMS' s motion to amend. We affirm and award Lakewood attorney fees on appeal.

                                                       FACTS


         Following a joint investigation by local and military law enforcement agencies, an

undercover officer sold military hardware to HMS that was otherwise unavailable for civilian use

and marked as United States government property. This sale resulted in the execution of a search

warrant at    HMS that       yielded significant amounts of contraband    military   materials.
45615 -0 -II



          Lakewood revoked HMS' s business license, and HMS appealed that revocation to a city

hearing   examiner.        Following two days of hearings, the hearing examiner upheld Lakewood' s

revocation     decision.     The city clerk e- mailed the hearing examiner' s decision to the parties on

August 5, 2013, and deposited the decision in the mail on August 7.


          On September 4, 2013, HMS filed a petition in Pierce County Superior Court seeking

review of the hearing examiner' s decision, asserting that the court had jurisdiction over its petition

under   the APA. HMS did            not serve   Lakewood   until   September 13, 2013. Lakewood moved to


dismiss, arguing that HMS improperly invoked the court' s jurisdiction because the APA does not

apply to municipal decisions and because HMS failed to timely serve its petition on Lakewood.

On October 24, HMS moved for leave to amend its petition under CR 15 and to relate all claims

back to the initial        filing   date.   Its proposed amendment deleted the APA claim and sought


declaratory relief as well as statutory and constitutional writs of review.

          Following a hearing, the trial court granted Lakewood' s motion to dismiss, ruling that it
lacked subject matter jurisdiction over the petition because HMS had not complied with the APA' s

service   requirements.        The trial court denied the motion to amend as moot and dismissed the


petition without prejudice.




          On appeal, HMS argues that the trial court erred by ruling that the failure to comply with

the APA' s service requirements deprived the court of subject matter jurisdiction and that the court


should have allowed HMS to file an amended petition that related back to the filing date of the

initial petition.




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45615 -0 -II



                                                       ANALYSIS


I.         SUBJECT MATTER JURISDICTION


         Jurisdiction is a question of law that we review de novo. City of Tacoma v. Mary Kay, Inc.,

117 Wn.     App.   111, 114, 70 P. 3d 144 ( 2003).           Subject matter jurisdiction refers to a court' s ability

to entertain a type of case. In re Marriage ofBuecking, 179 Wn.2d 438, 448, 316 P. 3d 999 ( 2013),

cert. denied, 135 S. Ct. 181 ( 2014).


         Lakewood argued below that the trial court lacked subject matter jurisdiction over HMS' s


petition   for   review   because the APA does         not   apply to     municipal   decisions. We agree. Because


Lakewood is not a state agency that is subject to the APA, the trial court had no jurisdiction to

consider HMS' s petition for review of the hearing officer' s decision. See Riggins v. Hous. Auth.

of Seattle, 87 Wn.2d 97, 100, 549 P. 2d 480 ( 1976) (                    legislature intended APA to apply only to

government entities        involved in   statewide programs);            Plumbers & Steamfitters Union Local 598


v.    Wash. Pub. Power       Supply Sys.,      44 Wn.     App.      906, 911, 724 P. 2d 1030 ( 1986) (    municipal




corporation      is local agency to      which       APA does      not   apply).   We may sustain the trial court' s

decision on any grounds within the pleadings and the proof. Cmty. Invs., Ltd. v. Safeway Stores,

Inc., 36 Wn. App. 34, 38, 671 P. 2d 289 ( 1983).               Accordingly, we affirm the trial court' s ruling that

it lacked jurisdiction over HMS' s petition without addressing whether HMS timely complied with

the APA service requirements.


II.        AMENDMENT UNDER CR 15


           HMS argues that even without jurisdiction to consider the APA claim, the trial court should


have allowed it to amend its petition under CR 15 by substituting new causes of action that related

back to the APA       petition' s
                                    filing   date.    HMS' s amendments sought declaratory relief as well as

statutory and constitutional writs of review.




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          CR 15( a) provides that a party may amend its pleading after a response is filed " only by

leave of court or by written consent of the adverse party; and leave shall be freely given when

justice   so requires."   An amendment relates back to the date of the original pleading when the

claim asserted in the amended pleading " arose out of the conduct, transaction, or occurrence set

forth   or attempted   to be   set   forth in the   original   pleading."    CR 15( c).


          Lakewood responds that without subject matter jurisdiction over. HMS' s initial APA


pleading, the trial    court   had    no   jurisdiction to     consider   the   motion   to   amend   that pleading.   See


Shoop v. Kittitas County,       149 Wn.2d 29, 35, 65 P. 3d 1194 ( 2003) ( when court lacks subject matter


jurisdiction, dismissal is only            permissible    action    court   may take).        Lakewood also questions


whether CR 15 even applies under these circumstances.


          The civil rules are intended to apply only to civil actions invoking the general jurisdiction

of the superior courts. Diehl v. W. Wash. Growth Mgmt. Hearings Bd., 153 Wn.2d 207, 216, 103

P. 3d 193 ( 2004). Review of the APA invokes appellate and not general or original superior court


jurisdiction. Diehl, 153 Wn.2d             at   216.   In addition, the superior court civil rules are procedural


rules that apply only after the action commences, and they do not purport to extend the subject

matter jurisdiction of the court. Diehl, 153 Wn.2d at 216. Here, the APA action never commenced

because the trial court never had jurisdiction over that action. CR 15 was not the means by which

a different type of action could be initiated, nor the means by which a different type ofjurisdiction

could be invoked.


          Where a party chooses an incorrect procedural vehicle to obtain review of a local

administrative decision, its failure to comply with the procedural requirements of the correct

vehicle merits dismissal of the action. Mary Kay, 117 Wn. App. at 115 -16. In Mary Kay, Tacoma

appealed a hearing examiner' s decision to the superior court. 117 Wn. App. at 113. When Tacoma



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45615 -0 -II




proceeded with discovery, Mary Kay moved to dismiss or to bar discovery, arguing that the notice

of appeal had invoked only appellate rather than original jurisdiction and that discovery was

improper.      Mary Kay,   117 Wn.         App.    at   114.    The trial court denied the motion and ruled that


Tacoma'    s appeal   had invoked its       original    jurisdiction     and permitted         discovery. Mary Kay, 117

Wn. App. at 113 - 14.

          We reversed and held that Tacoma could invoke the superior court' s original jurisdiction


only by filing a complaint or a writ. Mary Kay, 117 Wn. App. at 115 -16. As we explained further,

                  Tacoma could have sought review either through a statutory writ under
          chapter 7. 16 RCW or by the court using its inherent power to review via a
          constitutional (common law) writ. But to secure a statutory writ of review, Tacoma
          would have had to comply with the applicable statutory requirements of chapter
          7. 16 RCW, which arguably it did not do here.

Mary Kay,      117 Wn.   App.   at   116   n. 6.   Because Tacoma could not invoke original jurisdiction by

filing a notice of appeal, dismissal was required. Mary Kay, 117 Wn. App. at 116.

          HMS did not comply with the applicable filing requirements in seeking declaratory relief

or a statutory writ of review. The time limits for seeking such relief are short, with 30 days being

typical. Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 847 -48, 991 P. 2d 1161

 2000);    Summit -Waller Citizens Ass 'n v. Pierce County, 77 Wn. App. 384, 392, 895 P. 2d 405

 1995).     Constitutional writs have longer time limits, but any unreasonable delay in seeking a

constitutional writ    bars its issuance.          Wilkinson, 139 Wn.2d            at   848.   Moreover, a superior court


may decline to issue a constitutional writ " if either a statutory writ or a direct appeal is available,

unless    the appellant can show      good cause        for    not   using those   methods."      Birch Bay Trailer Sales

v. Whatcom County, 65 Wn. App. 739, 746, 829 P. 2d 1109 ( 1992).




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          HMS attempted to amend its petition for review well beyond any 30 -day time limit. The

failure to meet these filing requirements does not appear to constitute good cause to consider the

extraordinary remedy of a constitutional writ, but this issue is not yet ripe for review. See Coballes

v.     Spokane   County,   167 Wn.     App. 857,      865,    274 P. 3d        1102 ( 2012) (   both statutory and

constitutional writs are   extraordinary       remedies   that   should   be   applied   sparingly).   Consequently,

we affirm the trial court' s ruling that it lacked jurisdiction to consider this complaint as well as its

refusal   to   allow   HMS to    amend   its   complaint under     CR 15.        Whether HMS may still seek a

constitutional writ of review in an independent action is not now before us.


III.      ATTORNEY FEES


          Lakewood requests an award of costs and attorney fees on appeal. RAP 18. 1 provides that

we may award attorney fees on appeal where authorized by applicable law. Dan' s Trucking, Inc.

v.   Kerr Contractors, Inc., 183 Wn.        App.   133, 143, 332 P. 3d 1154 ( 2014).            Lakewood makes its


request under the following provision of the Lakewood Municipal Code:

          In addition to or as an alternative to any other penalty provided herein or by any
          other business license or regulation ordinance, the City shall be entitled to its costs
          and reasonable attorneys fees in any action to enforce the provisions of this Chapter
          or any other business license or regulation ordinance.

LMC 5. 02. 230 ( citations      omitted).   We grant Lakewood' s request for reasonable attorney fees on

appeal.



          We affirm.




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45615 -0 -II




        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 in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




        Worswick, P.J.




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