David Darby, Appellant V. Clark County, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAVID A. DARBY, Sovereign State Citizen
pursuant to Article 2, Section 3 of 1878
Constitution of the State of Washington,
No. 47285-6-II
Appellant,
v.
CLARK COUNTY, a political subdivision of
the State of Washington, including the
following officials acting for the County:
Grey Kimsey, Clark County Auditor
Doug Lasher, Clark County Treasure
Peter Van Nortwick, Clark County Assessor
David Madore, Clark County Commissioner
Anthony Golik, Clark County Prosecutor
Taylor R. Hallvik, Clark County Deputy
Prosecutor
Garry Lucas, Sheriff Clark County,
UNPUBLISHED OPINION
Respondents.
LEE, J. — David Darby appeals the superior court’s dismissal of his claims against Clark
County, arguing that the superior court erred because it did not consider his claimed status as a
“private sovereign free man” and “sovereign state citizen.” We disagree and hold that the superior
court did not err because (1) Darby’s attempt to vacate an order and judgment filed under a separate
cause number failed to comply with the requirements of CR 60(e)(1); and (2) Darby’s complaint
failed to allege a cause of action upon which relief could be granted. We affirm.
Filed
Washington State
Court of Appeals
Division Two
March 8, 2016

No. 47285-6-II
2
FACTS
On September 11, 2014, Darby filed two documents in the Clark County Superior Court
and the case was assigned cause number 14-2-02637-8.1 The filing attempted to enter civil
complaints against Clark County and several named county officials.2 The filing also contained a
CR 60(b)(5) motion to vacate an “Order and Judgment for Foreclosure” entered on August 15,
2014 in cause number 12-2-03432-3,3 alleging that the foreclosure was void for lack of jurisdiction
because Darby was a “private sovereign free man” and a “Sovereign State Citizen.” Br. of
Appellant at 18; Clerk’s Papers (CP) at 1, 8. The filing stated the requested relief was:
1. Plaintiff moves that the court vacate the void order and judgment for
foreclosure in case number 12-2-03432-3.
2. Restore all rights to the property to the plaintiff and remove the property
from the county [t]ax rolls.
3. Plaintiff moves this court to seal this case for private and personal reasons
and safety.
CP at 8.
1 Darby filed a document titled “Plaintiff Moves the Court for a Complaint for a Collateral attack
to vacate a void Order and Judgment of Foreclosure” and a document titled “Plaintiff’s Mandatory
Judicial Notice.” CP at 1-18. The “Order and Judgment of Foreclosure” that Darby sought to
vacate was a “Final Order and Judgment of Foreclosure Authorizing the Sale of Tax Parcel
264614000” entered in Clark County Superior Court under cause number 12-2-03432-3. CP at
22-23.
2 Those named officials are: Greg Kimsey, Clark County Auditor; Doug Lasher, Clark County
Treasurer; Peter Van Nortwick, Clark County Assessor; David Madore, Clark County
Commissioner; Edward L. Barnes, Clark County Commissioner; Anthony Golik, Clark County
Prosecutor; Taylor R. Hallvik, Clark County Deputy Prosecutor; and Garry Lucas, Clark County
Sheriff.
3 The order and judgment entered under cause number 12-2-03432-3 was not appealed.

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The referenced “Order and Judgment of Foreclosure” is the “Final Order and Judgment of
Foreclosure Authorizing the Sale of Tax Parcel 264614000” entered by Clark County Superior
Court in August 2014 under cause number 12-2-03432-3. CP at 22. That order and judgment
authorized the Clark County Treasurer “to conduct an online tax foreclosure sale of Tax Parcel
No. 264614000 to collect delinquent real property taxes, interest, penalties and fees in the amount
of $22,988.71.” CP at 23. Tax Parcel 264614000 is a real property parcel Darby had owned, but
refused to pay taxes on, in Clark County. Darby refused to pay taxes because he believes his
claimed status as a “private sovereign free man” meant that the county did not have a right to
collect taxes on his property. CP at 2; Reply Br. of Appellant at 4.
In response to Darby’s filing, the County filed “Defendants’ Motion to Dismiss Plaintiff’s
Complaint Pursuant to CR 12(b)(6) and Defendants’ Motion for Sanctions Pursuant to CR 11 and
RCW 4.84.185.” Suppl. CP at 61. Darby did not file a response to the County’s motions. After
a hearing on the County’s motions, the superior court granted the County’s motions, dismissed
Darby’s complaint without prejudice, imposed CR 11 sanctions against Darby, and awarded the
County statutory attorney fees as the prevailing party. Darby appeals.
ANALYSIS
A. CR 60(b)(5) MOTION TO VACATE
Darby argues the superior court erred in dismissing his CR 60(b)(5) motion because the
superior court did not consider the cases and constitutions4 he cited. We hold that Darby’s CR
4 Darby cites to the “1787 Constitution for the United States” and the “1878 Constitution of the
State of Washington.” Br. of Appellant at 17-19.

No. 47285-6-II
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60(b)(5) motion could not be granted because it sought to vacate an order from a different case.
Therefore, the superior court did not err in dismissing Darby’s CR 60(b)(5) motion.
CR 60(b)(5) states: “On motion and upon such terms as are just, the court may relieve a
party . . . from a final judgment, order, or proceeding for the following reasons: . . . (5) The
judgment is void.” CR 60(e)(1) provides the procedure for vacating a judgment under CR 60, and
requires that the “Application [to vacate the judgment] shall be made by motion filed in the cause.”
The “Final Order and Judgment of Foreclosure Authorizing the Sale of Tax Parcel
264614000” was filed under cause number 12-2-03432-3. CP at 22-23. That order, and the
associated order granting Clark County’s motion for summary judgment, authorized Clark County
to conduct an “online tax foreclosure sale of tax parcel 264614000 to collect delinquent real
property taxes that are owed to date in connection with this parcel by David A. Darby.” CP at 21.
Darby did not appeal either order. Instead, Darby filed a CR 60(b)(5) motion under a new cause
number, 14-2-02637-8, and argued that the order from cause number 12-2-03432-3 is void for lack
of jurisdiction.
Darby’s CR 60(b)(5) motion could not be granted by the superior court because, contrary
to the requirements of CR 60(e)(1), the motion was not “filed in the cause” (i.e. filed under the
cause number that the challenged order and judgment was filed). CR 60(e)(1). Darby filed his
motion under cause number 14-2-02637-8, but his motion sought to vacate an order entered in
cause number 12-2-03432-3. Thus, Darby’s motion cannot be granted because it did not comply
with CR 60(e)(1). The superior court did not err in dismissing Darby’s CR 60(b)(5) motion.

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B. COMPLAINT
Darby argues the superior court erred in dismissing his complaint because the superior
court did not consider his claimed status of a “private sovereign free man.” Br. of Appellant at 19.
We disagree.5
1. Standard of Review
CR 12(b)(6) permits a trial court to dismiss a complaint when it fails to “state a claim upon
which relief can be granted.” We review a trial court’s CR 12(b)(6) dismissal de novo. Nissen v.
Pierce County, 183 Wn.2d 863, 872, 357 P.3d 45 (2015).
Dismissal under CR 12(b)(6) is appropriate only if the trial court concludes beyond a
reasonable doubt that, on the face of the plaintiff’s complaint, he or she cannot prove any set of
facts that would justify recovery. FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings,
Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014). The trial court is to take all facts alleged in the
complaint as true and may consider hypothetical facts that support the plaintiff’s claims.
FutureSelect, 180 Wn.2d at 962. If a plaintiff’s claim remains legally insufficient, even under
hypothetical facts, dismissal under CR 12(b)(6) is appropriate. FutureSelect, 180 Wn.2d at 963.
2. Complaint Failed to State a Claim Upon Which Relief Can Be Granted
Darby’s September 11 filing is titled as a complaint, names defendants, and has its own
cause number. However, the filing does not allege a cause of action. Complaints failing to allege
5 To the extent Darby argues that the superior court should have allowed his claim because of his
status as a “private sovereign free man,” this argument fails. A CR 12(b)(6) determination is not
based solely on a party’s status. The validity of Darby’s claimed status alone does not create a
cause of action and the relief he requested could not be provided by the court.

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“a claim upon which relief can be granted” are properly dismissed. CR 12(b)(6); Nissen, 183
Wn.2d at 872.6
Moreover, the superior court cannot provide the relief Darby requested. Darby’s filing
asked the court to: (1) vacate the order and judgment of foreclosure in a different case; (2) return
property to him that had been foreclosed upon in a different case; (3) remove the returned property
from Clark County tax rolls; and (4) seal the current case. First, as discussed above, Darby sought
to vacate an order and judgment entered under a different cause number that was never appealed.
CR 60(e)(1) sets forth the requirements to accomplish what Darby was requesting. Darby failed
to comply with the requirements of CR 60(e)(1); therefore, the superior court could not provide
the relief that Darby sought. Second, Darby sought to have returned to him property that had been
foreclosed upon in a different case, and then have that property removed from the county tax rolls.
These requests were premised on Darby’s contention that the order and judgment entered in cause
number 12-2-03432-3 was void. The complaint provided no legal basis upon which a superior
court could “undo” an order and judgment entered in a different cause number that was never
appealed. Finally, Darby sought to seal the case he filed under cause number 14-2-02637-8. The
complaint provides no facts or legal basis to support this request. There is merely the statement
that “Plaintiff moves this court to seal this case for private and personal reasons and safety.” CP
at 8. Thus, because there are no set of facts in the complaint that could justify sealing the case,
6 Darby also argues that there were unsworn declarations provided by and relied upon by the
County in this case. To the extent unsworn declarations were provided or relied upon, such
provision and reliance is immaterial in a CR 12(b)(6) analysis because the superior court takes all
facts Darby alleges in his complaint as true when determining whether a cause of action is stated.
FutureSelect, 180 Wn.2d at 962.

No. 47285-6-II
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there is no relief the superior court could provide. The superior court’s dismissal under CR
12(b)(6) was proper.
C. CR 11 SANCTIONS AND RCW 4.84.185 FEES
Darby does not assign error to or present argument regarding the superior court’s
imposition of CR 11 sanctions and RCW 4.84.185 fees. “Appellate courts will only review a
claimed error if it is included in an assignment of error, or clearly disclosed in the associated issue
included in the brief.” Rhinehart v. Seattle Times, 59 Wn. App. 332, 336, 798 P.2d 1155 (1990).
Therefore, we do not consider whether the superior court abused its discretion in imposing CR 11
and RCW 4.84.185 fees against Darby.
We affirm the trial court’s dismissal of Darby’s complaint.
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.
Lee, J.
We concur:
Worswick, P.J.
Melnick, J.