Saffer v. JP Morgan Chase Bank, N.A.

Opinion

INTRODUCTION

Plaintiff and appellant Gregory Saffer worked for Washington Mutual Bank (WaMu) between May 2007 and January 2008. In September 2008, WaMu failed. In short order, the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver for the bank, and JP Morgan Chase Bank, N.A.

Section 1821(d)(13)(D) states: “Except as otherwise provided in this subsection, no court shall have jurisdiction over—[f] (i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the Corporation has been appointed receiver, including assets which the Corporation may acquire from itself as such receiver; or [][] (ii) any claim relating to any act or omission of such institution or the Corporation as receiver.” Thus, “[f]ailure to comply with the claims procedure bars any lawsuit against a failed depository institution.” (Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769 , 1778 [ 28 Cal.Rptr.2d 190 ].)

It is undisputed that Saffer did not exhaust administrative remedies under FIRREA before filing suit. However, Saffer contends this failure is not fatal to his claims, or this appeal, for several reasons. He contends judicial action on his claims is not barred because exhaustion of administrative remedies does not implicate fundamental jurisdiction under California law. He thus asserts exhaustion was a procedural defense JPMC could, and did, waive. Saffer also argues he was not required to exhaust administrative remedies under FIRREA because (1) his claims—employment claims—were not susceptible of resolution by the FDIC; (2) he did not receive adequate notice of the claims bar date or the receivership; and (3) he was not required to exhaust as to JPMC or as to Wolf.

A threshold question is whether S after’s failure to exhaust his administrative remedies under FIRREA calls into question the courts’ subject matter jurisdiction over his claims. We conclude that it does.

i. Subject matter jurisdiction principles

Subject matter jurisdiction is a fundamental requirement for judicial consideration of claims. “The California Supreme Court has defined subject matter jurisdiction thusly: ‘Subject matter jurisdiction ... is the power of the court over a cause of action or to act in a particular way.’ [Citations.] By contrast, the lack of subject matter jurisdiction means the entire absence of power to hear or determine a case; i.e., an absence of authority over the subject matter. [Citations.] Where the evidence is not in dispute, a determination of subject matter jurisdiction is a legal question subject to de novo review.” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32 , 42 [ 12 Cal.Rptr.3d 711 ].) Subject matter jurisdiction may not be “ ‘ “conferred by consent, waiver, agreement, acquiescence, or estoppel.” ’ [Citation.]” (Totten, supra, 154 Cal.App.4th at p. 47.) As noted above, “ ‘[t]he adequacy of the court’s subject matter jurisdiction must be addressed whenever that issue comes to the court’s attention.’ [Citation.]” (Id. at p. 46; see In re Gloria A., supra, 213 Cal.App.4th at p. 481.) Thus, it may be considered for the first time on appeal (People v. Lara (2010) 48 Cal.4th 216 , 225 [ 106 Cal.Rptr.3d 208 , 226 P.3d 322 ] (Lara)), and requires no particular procedural vehicle. (Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407 , 1417-1418 [ 88 Cal.Rptr.2d 828 ].) “[A]ny judgment or order rendered by a court lacking subject matter jurisdiction is ‘void on its face . . . .’ [Citation.]” (Varían Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 , 196 [ 25 Cal.Rptr.3d 298 , 106 P.3d 958 ] (Varían).)

ii. Failure to exhaust FIRREA administrative remedies deprives courts of subject matter jurisdiction

It is now well established that “exhaustion of the act’s administrative review process is a precondition to litigation against the [FDIC] to recover a debt owed by a failed bank.” (Neman v. Commercial Capital Bank (2009) 173 Cal.App.4th 645 , 651 [ 92 Cal.Rptr.3d 800 ] (Neman).) “[S]ection 1821(d)(13)(D) denies jurisdiction to any court, state or federal, to consider claims except in accordance with section 1821(d) ...[:] section 1821(d) grants jurisdiction to certain courts only, and then in only two cases: [][] a. Judicial review of the receiver’s determination of the claimant’s appeal if it seeks administrative review, (§ 1821(d)(7)(A); and [f] b. Over suits filed or

As our colleagues in Division Seven explained in 2974 Properties'. “The exhaustion of administrative remedies is mandatory when, as here, Congress imposes an exhaustion requirement by statute. [Citations.] [][] Further, the relevant case law interpreting section 1821(d) confirms that completion of the claims process is a mandatory prerequisite to judicial review. [Citations.] [f] . . . ‘Congress expressly withdrew jurisdiction to resolve claims to a failed bank’s assets from all courts, except as provided in 12 U.S.C., § 1821(d). [Citation.] . . . [T]he administrative procedure exhaustion requirement of FIRREA is statutory, not judicial. [Citation.] We are therefore not at liberty to ignore the statutory command.’ . . . [Citation.] . . . [U]nless a claimant has exhausted the administrative claims process, no court has jurisdiction to hear the claim.” (2974 Properties, supra, 23 Cal.App.4th at pp. 878-880, original italics, fn. omitted.)

Likewise, numerous federal authorities conclude the failure to exhaust FIRREA administrative remedies prior to filing suit on a covered claim deprives courts of subject matter jurisdiction to consider the claim. (See, e.g., Acosta-Ramirez v. Banco Popular de Puerto Rico (1st Cir. 2013) 712 F.3d 14 , 19; Aber-Shukofsky v. JPMorgan Chase & Co. (E.D.N.Y. 2010) 755 F.Supp.2d 441 , 446 (Aber-Shukofsky) [“[T]he Second Circuit has consistently held that courts lack subject matter jurisdiction to hear a claim against a failed bank taken into receivership by the FDIC unless the plaintiff has exhausted the administrative claims process.”]; Althouse v. Resolution Trust Corp. (3d Cir. 1992) 969 F.2d 1544 , 1545-1546; Elmco Properties, Inc. v. Second National Federal Savings Assn. (4th Cir. 1996) 94 F.3d 914 , 919 (Elmco); Farnik v. F.D.I.C. (7th Cir. 2013) 707 F.3d 717 , 721-722 (Farnik); Bueford v. Resolution Trust Corp. (8th Cir. 1993) 991 F.2d 481 , 484; Intercontinental, supra, 45 F.3d at p. 1278; Damiano v. F.D.I.C. (11th Cir. 1997) 104 F.3d 328 , 333; Freeman v. F.D.I.C. (D.C. Cir. 1995) 312 U.S. App.D.C. 324 [ 56 F.3d 1394 , 1399-1400].)

iii. California cases regarding administrative exhaustion are not controlling on the question of whether failure to exhaust FIRREA procedures implicates subject matter jurisdiction

Despite section 1821(d)(13)(D) and the many authorities interpreting it, Saffer contends that under California law, a failure to exhaust administrative remedies does not deprive the court of subject matter jurisdiction and the defense can be waived. We disagree.

However, these cases concerned administrative exhaustion schemes that were neither mandatory nor part of a statute that explicitly stripped courts of jurisdiction in the absence of compliance with the relevant exhaustion requirements. For example, in Green, the plaintiff was terminated from employment with the City of Oceanside. An agreement between the city and an employee association to which the plaintiff belonged provided an internal grievance procedure, including various administrative appeals. The plaintiff did not challenge his termination through the employees’ grievance procedure but filed suit in the superior court. The court found the internal grievance procedure was simply a “ ‘procedural prerequisite,’ ” creating only a “potential procedural defense” that could be waived. (Green, supra, 194 Cal.App.3d at pp. 222-223.)

Similarly, in Mokler, a county employee was terminated; internal grievance procedures were available to her to challenge the termination. (Mokler, supra, 157 Cal.App.4th at p. 131.) The grievance procedures expressly provided that they were subject to waiver by mutual consent. (Id. at p. 136.) The county did not raise the employee’s failure to exhaust administrative remedies until after a full trial on the merits; the court concluded the defense was waived. (Ibid) Likewise, in Cummings, the relevant statute provided an elector “may” seek a writ of mandate prior to an election to challenge the eligibility of candidates on an election ballot. (Cummings, supra, 111 Cal.App.4th at p. 505.) The

Although these cases, like the instant one, concerned “administrative exhaustion,” the strictures of FIRREA and its explicit stripping of jurisdiction from the courts render Green and its progeny inapposite to the case at bar. Unlike administrative remedies set forth in a contract between the parties, or a permissive statutory procedure, FIRREA’s exhaustion requirements are set forth by federal statute, they are mandatory, they do not allow for waiver by consent, and they explicitly state courts do not have jurisdiction to consider claims subject to exhaustion unless the claimant first follows the administrative procedures. (See Rosa v. Resolution Trust Corp. (3d Cir. 1991) 938 F.2d 383 , 395 (Rosa) [noting: “[W]e are not confronted with a judicially created exhaustion requirement, but with one that is mandated by statute. Further, Congress made this statutory exhaustion requirement explicitly jurisdictional.”].)

This is consistent with the purpose of the statute. As explained in 2974 Properties, “In FIRREA, Congress enacted a comprehensive and mandatory statutory scheme to enable the RTC [(the predecessor to the FDIC)], when acting as receiver for a failed financial institution, to carry out its fundamental functions of conserving and preserving the assets of the failed institution, and ultimately making pro rata distributions of those assets to the creditors of the institutions. . . . [f] . . . The administrative claims process . . . provides a centralized mechanism for consideration and resolution of the bulk of claims against insolvent thrifts without the delay and expense of litigation, by requiring that all claims be submitted to the receiver within a finite time period, and by allowing the receiver the initial opportunity to review and resolve the claims.” (2974 Properties, supra, 23 Cal.App.4th at pp. 876-877, fns. omitted.)

Moreover, the California Supreme Court’s analysis in Lara, supra, 48 Cal.4th 216 , supports the conclusion that the FIRREA administrative exhaustion requirements implicate subject matter jurisdiction. The court explained: “A lack of jurisdiction in its fundamental or strict sense results in ‘ “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” [Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack “ ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” [Citation.] When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.’ [Citations.] [f] . . . [][] Whether the failure to follow a statute makes subsequent action void or merely voidable ‘ “has been characterized as a question of whether the statute should be

C. Saffer’s Claims Were Subject to FIRREA Administrative Exhaustion Requirements

Saffer argues he was not required to exhaust administrative remedies under FIRREA before filing his claims. We find his contentions unavailing.

i. Saffer’s claims were not exempt from exhaustion because they were employment claims

Saffer contends he was not required to file a claim with the FDIC because his claims were not susceptible of resolution through the claims procedure. We disagree. Saffer’s contention refers to a phrase employed by some courts to explain that FIRREA “bars judicial review of any non-exhausted claim, monetary or nonmonetary, which is ‘susceptible of resolution through the claims procedure.’ [Citation.]” (Henderson v. Bank of New England (9th Cir. 1993) 986 F.2d 319 , 321, quoting Rosa, supra, 938 F.2d at p. 394.) In Rosa, the court concluded the plaintiffs’ claims seeking nonmonetary injunctive relief that would bar retroactive termination of an ERISA plan were not susceptible of resolution through the claims procedure. As a result, the claims were not subject to the jurisdictional bar.

However, the Rosa court’s conclusion of “nonsusceptibility” was not due to a finding that the FDIC lacked the necessary substantive expertise in ERISA to review the claims. Instead, the court determined section 1821(d)(13)(D)(i) addressed claims looking directly to payments from assets, or in some respect determining rights with respect to assets, and did not encompass purely injunctive claims relating to retroactive termination of an ERISA plan. (Rosa, supra, 938 F.2d at p. 394.) The court also concluded the claims procedure gave the Resolution Trust Corporation (RTC) the authority to allow or disallow claims, and pay creditor claims, but the court was “at a loss to understand how RTC would ‘determine,’ or ‘allow’ or ‘disallow,’ a claim seeking an order barring retroactive termination of the plan, or how it would ‘pay’ such a claim if allowed.” (Id. at pp. 394-395.) The court thus found the claims for injunctive relief did not require exhaustion.

Unlike the Rosa plaintiffs’ claims, Saffer’s claims were monetary, and exclusively concerned the prereceivership acts of the failed bank, WaMu. Courts have concluded that claims of varying subject matters required FIRREA exhaustion, including employment-related claims, so long as they were claims relating to the acts or omissions of a failed depository institution

For example, in Bueford v. Resolution Trust Corp., supra, 991 F.2d 481 , the plaintiff asserted age and race-based employment discrimination claims against her former employer," a bank. While her suit was pending, the RTC was appointed receiver of the bank. The court of appeals concluded she was required to comply with FIRREA’s administrative exhaustion procedures. Because she had not done so, the trial court properly dismissed her case for lack of subject matter jurisdiction. (Bueford, at pp. 483-484.) In Demelo v. U.S. Bank National Assn. (2013) 727 F.3d 117 (Demelo), the court rejected the plaintiffs’ argument that their claims against a failed bank for violation of state consumer protection laws were not “creditors’ claims” requiring FIRREA exhaustion. (Demelo, at p. 123.) The court explained FIRREA “bars jurisdiction over ‘any claim relating to any act or omission’ of the failed financial institution. 12 U.S.C. § 1821 (d)(13)(D)(ii) .... We have given this provision the full scope that its text demands and, in doing so, we have not limited it to creditors’ claims.” (Demelo, at pp. 122-123.)

In Aber-Shukofsky, the district court dismissed the plaintiffs’ claims that WaMu violated the Fair Labor Standards Act of 1938 ( 29 U.S.C. § 201 et seq.; FLSA), as well as state wage and labor laws. The plaintiffs were former WaMu employees suing JPMC for alleged overtime wage violations by WaMu. The plaintiffs failed to exhaust FIRREA administrative remedies before filing suit, thus the court dismissed the action for lack of subject matter jurisdiction. (Aber-Shukofsky, supra, 755 F.Supp.2d at pp. 443, 446.) The court rejected arguments that FLSA “trumped” FIRREA, as well as the argument that a plaintiff need not exhaust administrative remedies because he or she has reason to believe the FDIC will disallow the claim. (Aber-Shukofsky, at p. 451.) (See McMillian v. FDIC (11th Cir. 1996) 81 F.3d 1041 , 1044-1045 [requiring exhaustion of WARN (Worker Adjustment and' Retraining Notification Act; 29 U.S.C. § 2101 et seq.) act claim; severance pay claim was filed with the FDIC and disallowed; received judicial review]; Ladd v. Second National Bank (N.D. Ohio 1996) 941 F.Supp. 87 , 89-90 [failure to exhaust FIRREA administrative remedies created a jurisdictional bar requiring dismissal of plaintiff’s claims that the FDIC, as receiver, violated the Family and Medical Leave Act of 1993 ( 5 U.S.C. § 6381 et seq.; 29 U.S.C. § 2601 et seq.) in connection with her termination]; Jinadu v.

We reject the argument that Saffer was not required to exhaust his administrative remedies because his claims were not susceptible of resolution through the process, due to their subject matter. Saffer’s claims concerned the acts or omissions of a depository institution for which the FDIC was appointed receiver, and he sought a monetary recovery. His claims were well within the realm of section 1821(d)(13)(D). (See Benson, supra, 673 F.3d at p. 1213 [rejecting nonsusceptibility argument; plaintiffs offered no reason to believe FIRREA exhaustion would have been futile had claims been timely submitted].)

ii. Naming JPMC as a defendant did not excuse Saffer from exhausting FIRREA administrative remedies

Saffer further contends he was not required to exhaust administrative remedies to pursue his claims against JPMC as the successor bank. Yet, several courts have concluded FIRREA exhaustion requirements apply even when a claim is asserted against a successor bank, rather than the failed bank or the FDIC. Section 1821(d)(13)(D)(ii) withdraws jurisdiction over “any claim relating to any act or omission of [a failed] institution or the Corporation as receiver.” Thus, as the Ninth Circuit Court of Appeals explained in Benson, “ Where a claim is functionally, albeit not formally, against a depository institution for which the FDIC is receiver, it is a “claim” within the meaning of FIRREA’s administrative claims process.’ [Citation.] .... [f] . . . FIRREA’s jurisdictional bar applies to claims asserted against a purchasing bank when the claim is based on the conduct of the failed institution.” (Benson, supra, 673 F.3d at p. 1214, fn. omitted, quoting American Nat. Ins. Co. v. FDIC, supra, 642 F.3d at p. 1144; see Demelo, supra, 727 F.3d at p. 122; Famik, supra, 707 F.3d at pp. 722-725; Village of Oakwood v. State Bank & Trust Co. (6th Cir. 2008) 539 F.3d 373 , 386; American First Federal, Inc. v. Lake Forest Park, Inc. (11th Cir. 1999) 198 F.3d 1259 , 1263 [purchaser of challenged asset stood in the shoes of the RTC and acquired its protected status]; Aber-Shukofsky, supra, 755 F.Supp.2d at p. 448; Stewart v. JPMorgan Chase (Bankr. W.D.Pa. 2012) 473 B.R. 612 , 625; Schettler v. RalRon Capital Corp., supra, 275 P.3d at p. 938.)

In Benson, the court noted section 1821(d)(13)(D)(ii) “distinguishes claims on their factual bases rather than on the identity of the defendant: It asks whether claims ‘relate to any act or omission’ of a failed institution or the

Saffer additionally argues he was excused from following FIRREA’s claim process because he failed to receive adequate notice of the receivership, or the bar date, as a creditor of WaMu. We again disagree.

FIRREA requires the FDIC to provide two different kinds of notice. Under section 1821 (d) (3)(B)(i)—(ii), the FDIC must promptly publish notice to creditors to present their claims to the receiver by the bar date, and republish the notice. The FDIC must also mail a similar notice to any creditor shown on the failed institution’s books either (i) to the creditor’s last address appearing in the books, or (ii) “upon discovery of the name and address of a claimant not appearing on the institution’s books within 30 days after the discovery of such name and address.” (§ 1821(d)(3)(C)(ii).) As the First Circuit Court of Appeals recently explained: “FIRREA only requires that the FDIC mail notice to known creditors or claimants, see 12 U.S.C. § 1821 (d)(3)(C) . . . .” (Demelo, supra, 727 F.3d at p. 124.) When, as here, the plaintiff’s claim is not advanced until after the financial institution has failed, the claims “could not have been known to the FDIC at the time of receivership. Notice was given by publication, and notice by publication is sufficient for inchoate claims.” (Ibid.; see Elmco, supra, 94 F.3d at p. 921.) The FDIC was not required to mail notice to Saffer after being appointed receiver of WaMu.

Moreover, we agree with the numerous courts concluding that even if the receiver fails to mail the required notice of the claims process and bar date, a plaintiff is not excused from exhausting administrative remedies. (Elmco, supra, 94 F.3d at p. 920; Intercontinental, supra, 45 F.3d at pp. 1285-1286; Freeman v. F.D.I.C., supra, 56 F.3d at p. 1402, Meliezer v. Resolution Trust

Here, the FDIC published notice in the Wall Street Journal, a national publication, on at least two occasions at the beginning and end of October 2008. Saffer’s claims accrued no later than January 2008, when he resigned from WaMu. He did not file his complaint until 2009, well after the failure of WaMu, the appointment of a receiver, and the passing of the bar date. This case is thus similar to Tillman v. Resolution Trust Corp. (4th Cir. 1994) 37 F.3d 1032 (Tillman), which the Elmco court described: “[T]he claimant in Tillman was not one that the RTC discovered before its bar date. In fact, Tillman did not assert his claim against the failed bank until 30 months after that bank entered receivership. [Citation.] Also, his claim was not based on a standard creditor-debtor arrangement, but on an alleged contract under which the bank had promised to reimburse him for expenses he incurred in the course of unrelated litigation. As a result, Tillman’s interest appears not to have been known to RTC or to have been of a type that RTC should be required to discover on its own, and thus he fell within a class of claimants for whom notification by publication is sufficient.” (Elmco, supra, 94 F.3d at p. 921.)

The Elmco court found the Tillman approach consistent with Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306 , 317 [ 94 L.Ed. 865 , 70 S.Ct. 652 ], in which the Supreme Court explained notice by publication is sufficient for those whose interests are contingent, future, or not likely to come to a trustee’s attention in the normal course of business. This is in contrast to those “with an identified, present property interest whose address is known or reasonably ascertainable .... As to such parties, mere constructive notice by publication is insufficient. Mullane, 339 U.S. at [p.] 318.” (Elmco, supra, 94 F.3d at p. 921, citations omitted.)

Saffer had sufficient inquiry notice of the receivership. As a result, lack of notice did not excuse him from exhausting his administrative remedies under

iv. Saffer’s late-filed claim was insufficient to meet the exhaustion requirements

Similarly, to the extent Saffer contends his claim filed in September 2012 was sufficient to satisfy the FIRREA exhaustion requirements, we disagree. In Wujick v. Dale & Dale, Inc. (3d Cir. 1994) 43 F.3d 790 , the court of appeals rejected the very arguments Saffer makes here. In Wujick, the plaintiffs filed suit in Pennsylvania state court against a failed depository institution. After filing their suit, they submitted an administrative claim to the receiver. The receiver removed the case to federal court. The appellate court concluded that at the time the plaintiffs filed suit, “no court had subject matter jurisdiction over the suit because plaintiffs had failed to exhaust the administrative remedies mandated by section 1821(d)(13)(D) of FIRREA.” (Id. at p. 793.) The court rejected the plaintiffs’ argument that their belated filing of a claim should allow them to pursue their claims, under a “ ‘no harm, no foul’ ” line of reasoning, since Congress expressly withdrew jurisdiction from all courts over claims to a failed bank’s assets made outside the FIRREA procedures. (Wujick, at pp. 793-794.) The appellate court directed the lower court to dismiss the claims. (Id. at p. 794; see Althouse v. Resolution Trust Corp., supra, 969 F.2d at p. 1546 [failure to file timely claim bars claimant from receiving de novo review in court; to receive de novo review the disallowance must be for other reasons]; Potter v. JPMorgan Chase Bank, N.A. (C.D.Cal., May 8, 2013, No. CV 13-863 CAS (AGRx)) 2013 WL 1912718 , p. *7 (Potter) [under FIRREA, no court has subject matter jurisdiction to hear a claim filed with FDIC after the bar date, unless the claim meets statutory exception for claims that could not have been filed before bar date].)

As noted above, federal courts have routinely found the failure to file a claim with the FDIC, before instituting litigation in court, prevents a court from having subject matter jurisdiction over covered claims. Saffer cites

v. No allegations support treating Wolf differently

Finally, we must also reject Saffer’s argument that he was not required to follow FIRREA claims procedures to pursue his claims against Wolf. Saffer’s complaint alleges Wolf was his supervisor at WaMu, and that all defendants were acting as agents of the other defendants. There are no specific allegations relating to Wolf. Thus, even though Wolf was named as a defendant, it is clear the. entire complaint alleges only claims relating to actions or omissions of the failed bank, WaMu, and to the extent Wolf was implicated, it was as an employee of WaMu. Exhaustion as to those claims was necessary. (Friederichs v. Gorz (D.Minn. 2009) 624 F.Supp.2d 1058 , 1062, fn. 4 [plaintiffs had to exhaust against defendant related to failed institution where complaint was “devoid of any substantive allegations” against the related defendant]; Brabant v. JP Morgan Chase Bank (D.Ariz., July 2, 2012, No. CV 11-00848-TUC-JGZ) 2012 WL 2572281 , p. *5 [FIRREA jurisdictional bar applied to claims against employees of the failed institution where plaintiffs’ claims are based on the wrongdoing alleged to have been committed by the individual as an employee of the failed institution].)

Saffer’s failure to exhaust FIRREA administrative remedies before filing suit prevented the trial court from acquiring subject matter jurisdiction over his claims. “[I]n the absence of subject matter jurisdiction, a trial court has no power ‘to hear or determine [the] case.’ [Citation.]” (Varían, supra, 35 Cal.4th at p. 196.) We acknowledge it would have been preferable for JPMC to raise Saffer’s failure to exhaust under FIRREA much earlier in the process, rather than compelling the case to an unauthorized arbitration. However, “ ‘[t]he administrative prerequisite to suit set forth in [FIRREA] has been strictly construed and is considered an absolute and unwaivable jurisdictional requirement . . . this court has no power to excuse a condition precedent to . . .

DISPOSITION

The judgment entered in favor of JPMC is vacated and the matter is remanded to the trial court with directions to enter an order of dismissal against Saffer for lack of subject matter jurisdiction. Respondent shall recover its costs on appeal.

Flier, J., and Grimes, J., concurred.