Derrick Gallard v. Raymond And Ardis Dumett ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DERRICK GALLARD, NO. 68512-1-1
Appellant, DIVISION ONE
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C2 CO-
UNPUBLISHED OPINION CO
JOHN ANDERSON and DOLORES 'f
ANDERSON and the marital
community thereof, RAYMOND and
O
ARDIS DUMETT and the marital
community thereof, THE RAYMOND-
ARDIS DUMETT TRUST, DOES 1-25,
Respondents. FILED: November 18, 2013
Leach, C.J. — Where a plaintiff seeks to amend a complaint to add a new
defendant after the expiration of the statute of limitations, RCW 4.16.170 does
not toll the statute of limitations unless the requirements of CR 15(c) for relation
back of the amendment to the original complaint are satisfied. Because Derrick
Gallard's amended complaint does not satisfy the requirements of CR 15(c), we
affirm the trial court's dismissal of his claims against defendants not named or
sufficiently described in his original complaint based on the expiration of the
statute of limitations.
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FACTS
On July 13, 2011, Derrick Gallard filed a personal injury suit in Whatcom
County Superior Court against John and Dolores Anderson, their marital
community, and "Does 1-25." Gallard alleged that he sustained debilitating
injuries on July 14, 2008, while performing work at the direction of his landlords,
the Andersons. The complaint does not attribute any particular action or status
to "Does 1-25." On September 8, 2011, Gallard filed an amended complaint,
including the following additional defendants: Raymond and Ardis Dumett, their
marital community, and the Raymond-Ardis Dumett Trust. The amended
complaint alleges that the Dumetts and the Dumett Trust (Dumetts) owned the
property at which the injury occurred and approved and authorized the
Andersons to employ Gallard to perform work at the property. Gallard served
Ardis Dumett with the amended complaint on September 15, 2011.
On January 9, 2012, the Dumetts filed a motion to dismiss, claiming the
statute of limitations barred Gallard's suit. In response, Gallard argued that he
satisfied the requirements of RCW 4.16.005 and RCW 4.16.170 by filing the
initial complaint within three years of the incident at issue and serving a named
defendant within 90 days. He claimed the amended complaint relates back to
the initial complaint under CR 15(c). Gallard also argued that fundamental
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fairness required the trial court to deny the Dumetts' motion. The trial court
granted the Dumetts' motion to dismiss.
Gallard appeals.
ANALYSIS
Relying on RCW 4.16.170, Gallard argues that his filing of the initial
complaint tolled the statute of limitations for 90 days, during which time he
properly commenced the suit against the Dumetts by amending the complaint to
include the Dumetts and serving the Dumetts. RCW 4.16.170 provides in
pertinent part:
For the purpose of tolling any statute of limitations an action shall
be deemed commenced when the complaint is filed or summons is
served whichever occurs first. If service has not been had on the
defendant prior to the filing of the complaint, the plaintiff shall cause
one or more of the defendants to be served personally, or
commence service by publication within ninety days from the date
of filing the complaint.
Contrary to Gallard's position, "[t]he time period provided for in RCW
4.16.170 is not an extension of the statute of limitations."1 Instead, the statute
allows a plaintiff,
who has tentatively commenced an action against a party by filing a
complaint just before the pertinent statute of limitations runs, to
perfect the commencement of the action by serving that party, even
after the statute runs, as long as it is within 90 days of the date the
complaint was filed.[2]
1 Kiehnv. Nelsen's Tire Co., 45 Wash. App. 291, 298, 724 P.2d 434 (1986).
2 Kiehn, 45 Wash. App. at 298.
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By filing a complaint within the limitation period and serving at least one named
defendant within 90 days of filing, a plaintiff tolls the statute of limitations as to all
named defendants.3
But RCW 4.16.170 does not allow tolling as to unnamed defendants who
have not been identified with sufficient particularity before the expiration of the
statute of limitations.4 Although a plaintiff may designate a defendant by any
name when the defendant's true name is unknown,5 the substitution of a true
name for an unknown party constitutes an amendment substituting or changing
parties.6 If this occurs, the amendment relates back to the date of the original
pleading only when the requirements of CR 15(c) are satisfied.7 RCW 4.16.170
does not "extend the time for naming all necessary parties; any such party not
named in the original timely complaint can only be added thereafter under CR
15(c)."8
3 Sidis v. Brodie/Dohrmann, Inc., 117 Wash. 2d 325, 329-31, 815 P.2d 781
(1991).
4 Iwai v. State. 76 Wash. App. 308, 312, 884 P.2d 936 (1994) (reference in
complaint to "John Doe defendants allegedly 'negligent or otherwise responsible'"
did not sufficiently identify particular defendant so as to justify tolling); Bresina v.
Ace Paving Co., 89 Wash. App. 277, 282, 948 P.2d 870 (1997) (timely filing and
serving a named defendant will toll period for filing suit against unnamed
defendant only if plaintiff identifies unnamed defendant with "reasonable
particularity" before statute of limitations expires).
5 CR 10(a)(2).
6 Kiehn, 45 Wash. App. at 295.
7 Kiehn, 45 Wash. App. at 295.
8 Tellinqhuisen v. King County Council, 103 Wash. 2d 221, 223, 691 P.2d 575
(1984).
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CR 15(c) provides:
Relation Back of Amendments. Whenever the claim or defense
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, the amendment relates back to the date of the
original pleading. An amendment changing the party against whom
a claim is asserted relates back if the foregoing provision is
satisfied and, within the period provided by law for commencing the
action against him, the party to be brought in by amendment (1)
has received such notice of the institution of the action that he will
not be prejudiced in maintaining his defense on the merits, and (2)
knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought
against him.
We review a trial court's ruling under CR 15(c) to determine whether the
requirements of the rule were satisfied.9 Courts liberally construe CR 15(c) in
favor of allowing relation back of an amendment adding or substituting a new
party where the opposing party will be put to no disadvantage.10
In addition to the requirements of CR 15(c), an amended complaint
changing or adding a defendant will not relate back if the original omission of the
defendant resulted from "inexcusable neglect."11 Inexcusable neglect exists
where a party is ascertainable upon reasonable investigation and no reason for
9 Perrin v. Stensland, 158 Wash. App. 185, 193, 240 P.3d 1189(2010).
10 Perrin. 158 Wash. App. at 194.
11 Haberman v. Wash. Pub. Power Supply Svst., 109 Wash. 2d 107, 174, 744
P.2d 1032, 750 P.2d 254 (1987) ("[l]n cases where leave to amend to add
additional defendants has been sought, this court has clearly held that
inexcusable neglect alone is a sufficient ground for denying the motion.").
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the initial failure to name the party appears in the record.12 The party relying on
CR 15(c) must demonstrate that any neglect was excusable.13
The first CR 15(c) factor is met here. The original and amended complaint
arise out of the same incident in which Gallard sustained injuries while working at
the identified property in exchange for a reduction in rent.
While the question of prejudice may be arguable, as to the second and
third factors, nothing in the record indicates that "within the applicable statute of
limitations," the Dumetts received notice of the suit or knew or should have
known that the action would have been brought against them.14 Gallard does not
argue or identify any evidence in the record to demonstrate that the Dumetts
knew of the injuries he suffered on July 14, 2008, or the original complaint he
filed on July 13, 2011, any time before he served them with the amended
complaint on September 15, 2011. Because the second and third CR 15(c)
12 Haberman, 109 Wash. 2d at 174.
13 Perrin. 158 Wash. App. at 197-99.
14 Teller v. APM Terminals Pac. Ltd.. 134 Wash. App. 696, 706, 142 P.3d
179 (2006) (three conditions of CR 15(c) are (1) claim arising from same conduct
in original and amended pleading; (2) "within the applicable statute of limitations,"
new party has received notice of the action such that it will not be prejudiced in
maintaining a defense on the merits; and (3) "within the applicable statute of
limitations," new party knew or should have known that but for a mistake of
identity, action would have been brought against proper party).
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factors were not met, the amended complaint cannot relate back to the timely
filed original complaint.15
And Gallard fails to demonstrate that excusable neglect explains his
omission of the Dumetts from the original complaint. Gallard admits that the
public record discloses Dumetts' ownership of the property where the incident
occurred. "[Fjailure to name a party in an original complaint is inexcusable where
the omitted party's identity is a matter of public record."16
Gallard also asserts, as he did before the trial court, that fundamental
fairness requires the denial of the Dumetts' request for dismissal of his claim.
We will not address this argument because Gallard cites no authority to support
it.17
In sum, RCW 4.16.170 allowed Gallard to perfect the action he filed on
July 13, 2011, within 90 days. Because the Dumetts were not named in the
original complaint and the amendment naming the Dumetts did not relate back,
15 Kiehn, 45 Wash. App. at 296 (where defendant to be added by amended
complaint did not receive notice of suit within "the 3-year statute of limitations
period" and had no knowledge action would be brought against it, but for a
mistake, amended pleading did not relate back to original complaint).
16 Teller. 134 Wash. App. at 707.
17 RAP 10.3(a)(6); McKee v. Am. Home Prods. Corp.. 113 Wash. 2d 701,
705, 782 P.2d 1045 (1989).
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the Dumetts were not a party to the July 13, 2011, action. Therefore, the 90-day
time period to serve process has no application to the Dumetts.18
Affirmed.
/O:^/
WE CONCUR:
18 Kiehn, 45 Wash. App. at 298.
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