John L. Corrigan, Sr. v. Grant County ( 2019 )

FILED
NOVEMBER 26, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JOHN L. CORRIGAN, Sr., ) No. 36244-2-III
)
Appellant, )
)
v. )
)
GRANT COUNTY, a municipal ) UNPUBLISHED OPINION
Corporation; D. ANGUS LEE; PATRICK )
SCHAFF; JANIS WHITENER- )
MOBERG; BRIAN D. BARLOW; JOHN )
A. ANTOSZ, and TIMOTHY KRON, )
)
Respondents. )
LAWRENCE-BERREY, C.J. — John Corrigan appeals the trial court’s CR 12(b)(6)
order dismissing his amended complaint. Because the trial court considered matters
outside the pleadings, we review the trial court’s order as if it were a CR 56 order
granting summary judgment. Applying that standard, we affirm.
FACTS
In April 2011, John Corrigan sped by Trooper Timothy Kron on Interstate 90.
Trooper Kron activated his emergency lights and followed Corrigan for eight miles until
another trooper joined. At that point, Corrigan pulled over. Corrigan was cited for
No. 36244-2-III
Corrigan v. Grant County
speeding and failing to stop for a police officer. The speeding ticket was dismissed, but
Corrigan was convicted for failing to stop. The conviction was later overturned by the
superior court and dismissed without prejudice.
On March 25, 2013, Corrigan brought a 42 U.S.C. § 1983 suit in federal court
against Trooper Kron, Grant County, and others, alleging violations of Corrigan’s civil
rights, malicious prosecution, and negligence stemming from his earlier arrest and
prosecution.
On July 3, 2013, Grant County refiled charges against Corrigan for failing to stop.
Corrigan was reconvicted of that charge.
On December 10, 2013, the federal court granted the defendants’ motion for
summary judgment dismissing all of Corrigan’s claims. Corrigan appealed to the Ninth
Circuit, but the Ninth Circuit denied it, finding the appeal “so insubstantial as to not
warrant further review.” Clerk’s Papers (CP) at 174.
On September 15, 2016, Corrigan brought suit in Kittitas County Superior Court
against Grant County, various Grant County employees, and Trooper Kron. In that suit,
he asserted a 42 U.S.C. § 1983 claim, and claims for abuse of process, malicious
prosecution, and negligence. The case was removed to federal court.
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Trooper Kron brought a FED. R. CIV. P. 56 motion for summary judgment
dismissal. The federal court granted that motion, and Trooper Kron was no longer a party
to that action.
Grant County and its employees brought a FED. R. CIV. P. 12(b)(6) motion to
dismiss. The federal court dismissed Corrigan’s suit against Grant County and its
employees. Somewhat contradictorily, it also afforded Corrigan leave to amend his
complaint.
Corrigan filed an amended complaint, which asserted only State law claims.
Although Trooper Kron was no longer a party to that action, Corrigan informally e-mailed
Trooper Kron the amended complaint instead of formally serving him. Corrigan’s
amended complaint alleged: (1) negligence by Grant County and the prosecutor’s office,
(2) abuse of process against Grant County for the recharge and retrial after Corrigan’s
conviction was overturned and after he filed a § 1983 action, (3) a fair trial violation
against Grant County and Judge Whitener-Moberg, and, (4) malicious prosecution against
Grant County and Trooper Kron. Corrigan moved to remand the case, and the federal
court remanded it back to Kittitas County Superior Court.
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On April 23, 2018, Grant County moved to dismiss Corrigan’s amended complaint
pursuant to CR 12(b)(6). Among many other arguments, Grant County argued that
Corrigan’s claims were outside the three-year statute of limitations.
Trooper Kron also filed a motion to dismiss pursuant to CR 12(b)(6). Among
many other arguments, Trooper Kron argued insufficient service of process under
CR 12(b)(5).
The trial court agreed with the defendants’ many arguments and granted their
motions for dismissal. Corrigan timely appealed to this court.
ANALYSIS
A. ADEQUATE RECORD
Corrigan contends statements from various parties, including the trial court, are
missing from the verbatim report of proceedings. He argues this error requires reversal.
We disagree.
As explained below, we review the trial court’s rulings de novo. This means we
review the same documents that the trial court considered. The trial court’s questions and
the parties’ answers during argument of their motions are irrelevant to our review.
Because we review only the written record, we are satisfied the record is sufficient for our
review.
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B. STANDARD OF REVIEW
CR 12(c) provides in relevant part:
If, on a motion for judgment on the pleadings, matters outside the pleadings
are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in rule 56 . . . .
Because the trial court considered matters outside Corrigan’s amended complaint, we
review the trial court’s order under CR 56.
On review of a summary judgment order, we engage in the same inquiry as the
trial court. Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber,
Hunt & Nichols-Kiewit Constr. Co., 165 Wash. 2d 679, 685, 202 P.3d 924 (2009). All facts
and reasonable inferences are considered in a light most favorable to the nonmoving
party. Berger v. Sonneland, 144 Wash. 2d 91, 102-03, 26 P.3d 257 (2001). Summary
judgment is appropriate only when there are no disputed issues of material fact and the
prevailing party is entitled to judgment as a matter of law. CR 56(c).
C. GRANT COUNTY’S MOTION TO DISMISS
Corrigan contends the trial court erred by granting Grant County’s motion to
dismiss on his claims of malicious prosecution, abuse of process, negligence, and his
causes of action against the various judges. We disagree.
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1. Malicious prosecution
A plaintiff asserting malicious prosecution must establish various elements,
including that the proceedings terminated on the merits in favor of the plaintiff. Hanson
v. City of Snohomish, 121 Wash. 2d 552, 558, 852 P.2d 295 (1993). Here, Corrigan was
reconvicted of failure to stop. He cannot establish that the proceedings terminated on the
merits in his favor. The trial court did not err in dismissing this claim.
2. Abuse of process and negligence: Statute of limitations
A plaintiff asserting abuse of process or negligence must bring suit within three
years of when the cause of action accrued. See RCW 4.16.080(2); see also Nave v. City
of Seattle, 68 Wash. 2d 721, 724, 415 P.2d 93 (1966) (abuse of process); Washington v.
Boeing Co., 105 Wash. App. 1, 17, 19 P.3d 1041 (2000) (negligence). Generally, a cause of
action accrues when the party has the right to apply to a court for relief. Deegan v.
Windermere Real Estate Center-Isle, Inc., 197 Wash. App. 875, 892, 391 P.3d 582 (2017).
A party has the right to apply to a court for relief when the party can establish each
element of the action. Shepard v. Holmes, 185 Wash. App. 730, 739, 345 P.3d 786 (2014).
Here, Corrigan’s claims for abuse of process and negligence centered around
Grant County’s and its employees’ decision to refile criminal charges against him. If
refiling the charges was wrongful, this is when Corrigan had a right to apply for judicial
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relief. The criminal charges were refiled on July 3, 2013. Corrigan’s September 15, 2016
original complaint was, therefore, outside the three-year limitation period. Even if his
amended complaint related back to the filing of his original complaint, it too was late.
Corrigan argues that his September 2016 complaint was timely because he was
convicted in November 2013. But being convicted of a crime is not an element of abuse
of process or negligence, and is thus irrelevant to when he had a right to apply for judicial
relief. We conclude that his conviction date is not when his abuse of process and
negligence claims began to accrue.
3. Judicial immunity
“Under common law, judges are absolutely immune from suits in tort that arise
from acts performed within their judicial capacity.” Lallas v. Skagit County, 167 Wash. 2d
861, 864, 225 P.3d 910 (2009). “[J]udicial immunity applies to judges only when they are
acting in a judicial capacity and with color of jurisdiction.” Id. at 865.
Here, Corrigan’s claims against the various judges all occurred while they were
acting within their judicial capacity. Therefore, judicial immunity extends to their
actions, and Corrigan’s claims fail.
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D. TROOPER KRON’S MOTION TO DISMISS
Corrigan contends the trial court erred by finding Trooper Kron was not properly
served and, thus, was not a party to the action. We disagree.
Whether service was proper is a question of law that this court reviews de novo.
Goettemoeller v. Twist, 161 Wash. App. 103, 107, 253 P.3d 405 (2011). Under FED. R.
CIV. P. 4(e)(1)-(2), service must occur: (1) on the individual personally, (2) on the
individual’s dwelling or usual place of abode with someone of suitable age who resides
there, (3) on the individual’s agent authorized by law to receive process, or (4) any
method allowed by state law in the state where the district court is located or where
service is made. Under Washington law, service must occur through: (1) personal
service, (2) on the individual’s usual place of abode with a person of suitable age who
resides there, (3) on the individual’s usual place of abode with a person of suitable age
who resides there, a proprietor, or an agent, and then mailing a copy by first class mail to
the person at their usual mailing address, (4) by publication when the defendant cannot be
found, or (5) by certified mail when the court determines it is just as likely to give actual
notice. See CR 4(d); RCW 4.28.080(16), (17); RCW 4.28.100.
Here, Corrigan does not assert that he served Trooper Kron in compliance with any
of the aforementioned ways. He merely asserts that electronic service of his amended
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complaint on Trooper Kron was sufficient. We disagree. Electronic service is not
permitted under federal or state law. The trial court properly dismissed Corrigan' s claims
against Trooper Kron for insufficient service of process. 1
Affirmed.
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.
Lawrence-Berrey, C.J.
WE CONCUR:
Pennell, J.
1
Because of our disposition of these arguments, we need not address the various
other bases for which we might affirm the trial court's dismissal of Grant County, its
employees, and Trooper Kron.
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