                                                                       FILED
                                                                   OCTOBER 23, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DMSION THREE

JERRY JASMAN,                                )
                                             )         No. 35424-5-111
                     Appellant,              )
                                             )
      V.                                     )
                                             )
GRANT COUNTY WASHINGTON;                     )         UNPUBLISHED OPINION
THE BOARD OF COUNTY                          )
COMMISSIONERS FOR GRANT                      )
COUNTY,WASHINGTON;AND                        )
RICHARD STEVENS,CAROLANN                     )
SWARTZ AND CINDY CARTER, IN                  )
THEIR OFFICIAL CAPACITIES AS                 )
COUNTY COMMISSIONERS FOR                     )
GRANT COUNTY,WASHINGTON,                     )
                                             )
                     Respondents.            )

      KORSMO, J.   -Jerry Jasman appeals from the denial of his action for

indemnification by Grant County,arguing primarily that it was error not to consider an

alternative theory of indemnification. Since he never presented that alternative theory to

the County or the trial court,we affirm.
No. 35424-5-111
Jasman v. Grant County, et al


                                         FACTS

       Details of the underlying facts can be located_ more fully in two previous published

opinions in related litigation,Grant County Prosecuting Attorney v. Jasman, 183 Wn.2d

633,354 P.3d 846 (2015) (Jasman II),and Grant County Prosecuting Attorney v.

Jasman, 183 Wn. App. 27,332 P.3d 1106 (2014) (Jasman I). That case involved a quo

warranto action by the prosecutor to prohibit Mr. Jasman from performing a job he was

legally prohibited from holding.

      When the prosecutor's action first was filed,Grant County Coroner Greg Morrison

asked the County to appoint a special prosecutor to represent Mr. Jasman pursuant to

RCW 4.96.041. The County Board of Commissioners initially indicated that it would

grant the request,but subsequently changed its mind upon receiving advice from both the

prosecutor and,later,a special deputy prosecuting attorney. Morrison and Jasman hired

private counsel to represent them in that action. Both this court and the Washington

Supreme Court eventually ruled that the County had no obligation under RCW 36.27.020

to pay for counsel to defend the suit. Jasman II,183 Wn'.2d at 646-648; Jasman I,183

Wn. App. at 66-67.

      After the County rejected the request for an attorney on the advice of the special

prosecutor,Mr. Jasman filed the current action seeking a declaratory judgment and

alternative writs of certiorari and mandamus. Clerk's Papers (CP) at 7. The relief

requested was indemnity for the costs of the attorney that he hired due to the County's

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No. 35424-5-III
Jasman v. Grant County, et al


alleged violation ofRCW 4.96.041. He also alleged that the Board's decision was

arbitrary and capricious in violation of its statutory duty to defend and indemnify him.

The County moved for summary judgment. The case was stayed by the trial court

pending resolution of the appeals taken from the quo warranto prosecutor's case. See

Jasman I, 183 Wn. App. at 41.

        The stay was lifted after the decision in Jasman II. The County renewed its

motion for summary judgment in light of the two holdings that there was no basis for

appointing an attorney for Mr. Jasman in the quo warranto action. After hearing

response from Mr. Jasman, the trial court granted summary judgment and dismissed the

claims.

        Mr. Jasman timely appealed to this court. A panel heard oral argument on the

case.

                                        ANALYSIS

        Although Mr. Jasman presents several arguments, we need only discuss one of

them. 1 He expressly sought reimbursement from the County under the authority ofRCW

4.96.041. That statute did not apply to the quo warranto action and the trial court

correctly granted summary judgment on that theory.


        1
         We do not address the collateral estoppel and mootness arguments since we
address the merits of the claim. Since that claim failed as a matter of law, there is no
need to address the argument that summary judgment should have been continued in
order to permit additional discovery.

                                             3
No. 35424-5-III
Jasman v. Grant County, et al


       Long settled standards govern our review. This court reviews a summary

judgment de novo,performing the same inquiry as the trial court. Lybbert v. Grant

County, 141 Wn.2d 29,34,1 P.3d 1124 (2000). The facts,and all reasonable inferences

to be drawn from them,are viewed in the light most favorable to the nonmoving party.

Id. If there is no genuine issue of material fact,summary judgment will be granted if the

moving party is entitled to judgment as a matter of law. Id. "A defendant in a civil

action is entitled to summary judgment if he can show that there is an absence or

insufficiency of evidence·supporting an element that is essential to the plaintiffs claim."

Tacoma Auto Mall, Inc. v. Nissan N Am., Inc., 169 Wn. App. 111,118,279 P.3d 487

(2012).

       At issue in this litigation is RCW 4.96.041. The first two paragraphs of that

statute provide:

       (1) Whenever an action or proceeding for damages is brought against any
       past or present officer,employee,or volunteer of a local governmental
       entity of this state,arising from acts or omissions while performing or in
       good faith purporting to perform his or her official duties,such officer,
       employee,or volunteer may request the local governmental entity to
       authorize the defense of the action or proceeding at the expense of the local
       governmental entity.
               (2) If the legislative authority of the local governmental entity,or the
       local governmental entity using a procedure created by ordinance or
       resolution,finds that the acts or omissions of the officer,employee,or
       volunteer were,or in good faith purported to be,within the scope of his or
       her official duties,the request shall be granted. If the request is granted,the
       necessary expenses of defending the action or proceeding shall be paid by



                                              4
No. 35424-5-111
Jasman v. Grant County, et al


       the local governmental entity. Any monetary judgment against the officer,
       employee, or volunteer shall be paid on approval of the legislative authority
       of the local governmental entity or by a procedure for approval created by
       ordinance or resolution.

(Emphasis supplied.)

       The underscored language is dispositive of this appeal. The quo warranto action

brought against Mr. Jasman tested his qualification to hold the office of deputy coroner or

to perform the specific function of signing death certificates. It was not an action for

damages, nor was it an effort to recoup the salary paid to Mr. Jasman by the County. It

was an action to oust Mr. Jasman from a specific office and prohibit him from performing

one of the functions of that office while acting under a different job title.

       RCW 4.96.041 authorizes local governments to defend their employees who are

being sued for damages for actions taken during the good faith performance of their jobs.

The understandable purpose of that authorization is to allow local governments to defend

an action for damages that the local government likely would be required to pay. It is not

an authorization for the local government to fund both sides of an action testing the

qualifications of an employee to hold a job with the local government.

       Perhaps impliedly agreeing, Mr. Jasman primarily focuses his appellate argument

on a claim that the police power authority granted to cities and counties by art. XI, § 11

of the Washington Constitution permitted the County to indemnify him. We expressly do

not address this claim. It was not presented to the superior court or to the Grant County


                                              5
No. 35424-5-111
Jasman v. Grant County, et al


Board of Commissioners. The pleadings filed in superior court expressly asked the court

to declare a duty under RCW 4.96.041, to review whether the County violated that

statute, and to enforce that statute by writ of mandamus. CP at 7. At no time did Mr.

Jasman ask the trial court to act under any other theory. As we have noted many times, a

trial court simply cannot abuse discretion or otherwise err by failing to consider

discretion or authority it was never requested to exercise. E.g., Colo. Structures, Inc. v.

Blue Mountain Plaza, LLC, 159 Wn. App. 654, 660, 246 P.3d 835 (2011).

       Similarly, we do not understand how the Board of Commissioners can be faulted

for not exercising discretion it was never asked to exercise. Even if we assume there was

a discretionary2 police power authority to indemnify employees for legal expenses

unrelated to a damages claim, no such request was made in this case. Mr. Jasman's

general request for an attorney was rejected on the basis that RCW 4.96.041 did not

authorize it. He never asked the County to exercise its discretion under the policy power

to grant him an attorney or to indemnify him. Having failed to call this alleged authority

to the attention of the Board of Commissioners, he cannot now fault them for failing to

act under that authority.




       Appellant's counsel agreed at oral argument that the police power authority
       2

would be a discretionary decision for local government.



                                             6
No. 35424-5-111
Jasman v. Grant County, et al


The order granting summary judgment is affirmed.3

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



WE CONCUR:



       Lawrence-Berrey,



Q            o___
       Pennell, J.
                      .-,A




       3We deny appellant's motion to strike the respondent's second statement of
additional authority because the issues were fairly raised by the oral argument in this
court. We also note, however, that those authorities played no part in this opinion.

                                             7
