Daryl Pecelj Et Ano, V. Derek Sparks ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DARYL PECELJ, an individual, and
NADINE PECELJ, an individual, DIVISION ONE
Appellants, No. 86257-0-I
v. PUBLISHED OPINION
DEREK SPARKS, an individual, and
JEAN DOE SPARKS, and the marital
community thereof; SAM
VONGPHONTHONG and JEAN DOE
VONGPHONTHONG, and the marital
community thereof; and JOHNATHAN
MERCADO and JEAN DOE
MERCADO, and the marital community
thereof,
Respondents.
DWYER, J. — In Washington, a plaintiff may commence a civil action in a
manner sufficient to toll the running of the applicable statutory limitation period
without simultaneously commencing the civil action in a manner sufficient to
obtain personal jurisdiction over the defendant served with the summons. When
this occurs, the plaintiff must take the necessary steps to properly commence the
action pursuant to Civil Rules 3 and 4 in order to avoid dismissal and prosecute
the lawsuit. This case presents this odd state of affairs.
Daryl and Nadine Pecelj appeal from the order of the superior court
dismissing their multi-defendant personal injury action. The Peceljes assert that
the trial court erred by dismissing this action on the basis that they had failed to
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satisfy the statutory requirements for tolling the applicable statute of limitation
and, therefore, had failed to properly commence this lawsuit. This ruling was
erroneous, the Peceljes contend, because the applicable statutory limitation
period was tolled when they filed a complaint in the superior court and, within 90
days of doing so, served a summons upon defendants Derek Sparks and Sam
Vongphonthong.
We conclude that the Peceljes satisfied the statutory requirements for
tolling the applicable statutory limitation period. However, whether the Peceljes
properly commenced this action in compliance with applicable court rules and
statutory requirements, as construed by our Supreme Court, remains to be
determined.1 Specifically, the record herein does not contain findings of fact by
the trial court as to whether, under Civil Rules 3 and 4, RCW 4.16.170, and
Supreme Court case law, including Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d
325, 329, 815 P.2d 781 (1991), the Peceljes served the defendants with
sufficient process and in a timely manner so as to properly commence this action
and thereby obtain personal jurisdiction over the affected defendants. Choosing
to decide the case on a different issue, the trial court issued no findings on these
questions. Because the ruling made was erroneous and we cannot decide the
ultimate question on the record provided, we reverse and remand for further
proceedings consistent with this opinion.
1 In Washington, the time limits for commencing civil actions are controlled by various
statutes. Similarly, the manner in which process is served (e.g., hand-to-hand, by publication,
etc.) is controlled by statute. However, the sufficiency of the process itself (i.e., the contents of
the documents served) is controlled by the Civil Rules.
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I
This matter arises from personal injuries allegedly suffered by the Peceljes
as a result of a dog bite incident occurring on April 24, 2020. As applicable here,
the statute of limitation for a civil action based on those injuries was three years
from the date of the incident. RCW 4.16.080. On April 17, 2023, nearly three
years from the date of the incident, the Peceljes filed a complaint (“filed
complaint”) in the King County Superior Court against the marital communities of
Derek Sparks, Sam Vongphonthong, and Johnathan Mercado.
On April 20, 2023, the Peceljes almost simultaneously served Sparks and
Vongphonthong with a summons and complaint (“the served complaint”).2 As
pertinent here, the “served complaint” differed from the “filed complaint” in that it
only named the marital communities of Sparks and Vongphonthong as
defendants, omitting Mercado as a party and any allegations as to him.
Thereafter, legal counsel for Sparks and Vongphonthong filed notices of
appearance, specifically preserving any objections as to service of process,
jurisdiction, or statute of limitation.
On September 22, 2023, Sparks and Vongphonthong jointly moved to
dismiss the Peceljes’ lawsuit pursuant to CR 12(b)(5) for insufficiency of service
of process. In so doing, they argued that the Peceljes’ claim was time-barred
because it was then more than three years since the claim accrued and the
Peceljes had failed to properly toll the statutory limitation period. This was so,
Sparks and Vongphonthong averred, because, by first filing a complaint with
2 Sparks and Vongphonthong shared a residence. Sparks was served at 9:08 p.m.
Vongphonthong was served at 9:09 p.m.
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substantively different content than that in the complaint with which they were
served, the Peceljes had not satisfied the service and filing requirements of RCW
4.16.170. Therefore, according to Sparks and Vongphonthong, they were never
properly served, the Peceljes failed to toll the statute of limitation, the statutory
limitation period had passed, and their claim was time-barred.
On October 9, 2023, the Peceljes responded that they had tolled the
statute of limitation when they filed a complaint on April 17, 2023 and served the
summons upon the defendants on April 20, 2023. The Peceljes further argued
that the trial court had obtained personal jurisdiction over the defendants
because they had substantially complied with RCW 4.28.080, CR 3, and CR 4.
In early November 2023—on either November 9 or November 10—the
Peceljes served Sparks and Vongphonthong with a summons and a copy of the
“filed complaint.” 3
On November 13, 2023, the trial court held a hearing on the motion to
dismiss.
The trial court heard argument from the parties and granted the motion,
dismissing the Peceljes’ claim with prejudice as to all named defendants. In so
doing, the trial court concluded that the Peceljes “failed to properly serve
Defendants with the correct Complaint or file the correct Complaint within 90
days of first serving or filing, as required by RCW 4.16.17[0], thus the statute of
limitations was not tolled, and the action has not been commenced.” The
3 The record does not include a declaration of service that indicates the exact date of
service of the “filed complaint.” According to the Peceljs, the filed complaint was served on the
defendants on November 10, 2023. Sparks and Vongphonthong aver that service occurred on
November 9, 2023.
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Peceljes moved the trial court to reconsider the order granting the motion to
dismiss, but the request was denied.
The Peceljes now appeal.
II
The Peceljes assert that the trial court erred by dismissing their action on
the basis of insufficient service of process. This ruling was erroneous, the
Peceljes contend, because the combination of their filing of the “filed complaint”
in the superior court and the service of a summons to both Sparks and
Vongphonthong not only tolled the statute of limitation but also constituted a
proper commencement of their action. As discussed later herein, we agree with
the first part of this contention. We conclude that the Peceljes’ actions satisfied
the requirements necessary to initially toll the statute of limitation pursuant to
RCW 4.16.170 as interpreted by Supreme Court case law. However, we cannot
determine, on the record before us, whether plaintiffs’ actions satisfied the
requirements of CR 3 and CR 4 in a timely manner, as defined by Supreme
Court case law, so as to have properly commenced this civil action.
A
“Proper service of the summons and complaint is a prerequisite to a court
obtaining jurisdiction over a party.” Harvey v. Obermeit, 163 Wn. App. 311, 318,
261 P.3d 671 (2011). In order for service of process to be proper, it must comply
with constitutional, statutory, and court rule requirements. Scanlan v. Townsend,
181 Wn.2d 838, 847, 336 P.3d 1155 (2014). The plaintiff bears the initial burden
to prove a prima facie case of sufficient service, after which the party challenging
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the sufficiency of service of process must demonstrate by clear and convincing
evidence that service was improper. Scanlan, 181 Wn.2d at 847. When material
facts are not in dispute, whether service of process was proper is a question of
law that this court reviews de novo. Chengdu Gaishi Electronics, Ltd. v.
G.A.E.M.S., Inc., 11 Wn. App. 2d 617, 623, 454 P.3d 891 (2019).
B
The Peceljes first contend that the trial court erred by ruling that they had
not complied with the statutory requirements necessary to toll the running of the
applicable statute of limitation. We agree.
1
Washington requires civil personal injury negligence actions to be
commenced within three years of the accrual of the cause of action. RCW
4.16.080. A plaintiff may toll the running of the statute of limitation pursuant to a
scheme enacted by the legislature and codified as RCW 4.16.170:
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. If the action is commenced by service on
one or more of the defendants or by publication, the plaintiff shall
file the summons and complaint within ninety days from the date of
service. If following service, the complaint is not so filed, or
following filing, service is not so made, the action shall be deemed
to not have been commenced for purposes of tolling the statute of
limitations.
(Emphasis added.)
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Thus, pursuant to RCW 4.16.170, “an action is tentatively commenced” for
the purpose of tolling the statute of limitation either by the service of a summons
on a defendant or by the filing of the complaint with the court. Nearing v. Golden
State Foods Corp., 114 Wn.2d 817, 820, 792 P.2d 500 (1990). The statute
provides a 90 day “grace period” within which the plaintiff must accomplish the
remaining requirement of service of the summons or filing of the complaint.
Nearing, 114 Wn.2d at 822. Once a plaintiff has both filed the complaint and
served a defendant with a summons, the statutory limitation period is tolled
pursuant to RCW 4.16.170.4 Nearing, 114 Wn.2d at 822. If the plaintiff fails to
both file the complaint and properly serve the defendant with a summons within
this time period, “the action is treated as if it had not been commenced.”
Wothers v. Farmers Ins. Co. of Wash., 101 Wn. App. 75, 79, 5 P.3d 719 (2000).
2
Sparks and Vongphonthong argued, and the trial court agreed, that the
Peceljes had not properly completed the actions necessary to toll the statute of
limitation. We disagree.
Here, the alleged injury occurred on April 24, 2020. Absent successful
tolling pursuant to RCW 4.16.170, the three-year statute of limitation would bar
any action commenced after April 24, 2023. The parties do not dispute that the
Peceljes filed a complaint in the superior court on April 17, 2023. The filing of
this complaint tentatively tolled the statutory limitation period and began the 90
4 Thus, rather than stating that the plaintiff has “tentatively commenced” an action,
Nearing, 114 Wn.2d at 820, it is more accurate to state that the plaintiff has “tentatively tolled the
limitation period.”
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day “grace period” within which the Peceljes were required to serve Sparks and
Vongphonthong with summonses. The parties do not dispute that the Peceljes
served Sparks and Vongphonthong with summonses on April 23, 2023, well
within the 90 days allotted by RCW 4.16.170. Accordingly, the Peceljes
effectively complied with the statutory requirements to achieve tolling of the
statute of limitation.
C
Having concluded that the Peceljes filed the complaint and served each
defendant with a summons so as to successfully toll the three-year limitation
period, we now turn to two related questions. First, was the process served
sufficient in content to commence the civil action? Because process was served
twice on each defendant, we must examine the process served at each time.
Second, was the process timely served? Again, we must examine this question
as to each service.
1
We next examine the contents of the process served on the two
defendants and must determine, as to each service (the one in April and the one
in November) whether the process served was sufficient to commence a civil
action.
a.
Civil Rule 3 governs “Commencement of Action.” It provides that “a civil
action is commenced by service of a copy of a summons together with a copy of
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a complaint, as provided in rule 4 or by filing a complaint.” CR 3(a) (emphasis
added).
Civil Rule 4 governs “Process.” It provides that “[t]he summons and
complaint shall be served together.” CR 4(d)(1). But it also provides a form of
summons to be used in civil actions. This form provides, in pertinent part:
TO THE DEFENDANT: A lawsuit has been started against
you in the above entitled court by __________, plaintiff. Plaintiff’s
claim is stated in the written complaint, a copy of which is served
upon you with this summons.
In order to defend against this lawsuit, you must respond to
the complaint by stating your defense in writing.
CR 4(b)(2) (emphasis added).
It is plain that when CR 4(d)(1) commands that “[t]he summons and
complaint shall be served together,” it is requiring that “the summons” and “the
complaint” be served together. In this context “the complaint” to be served is “the
complaint” filed in the court.
This analysis flows logically from the language of CR 4(b)(2), the form
summons. It tells the defendant that “[a] lawsuit has been started against you,”
and that the “[p]laintiff’s claim is stated in the written complaint, a copy of which is
served upon you with this summons.” Furthermore, the court rule form directs
the defendant that “[i]n order to defend against this lawsuit, you must respond to
the complaint by stating your defense in writing.”
The contents of Civil Rule 4, read logically, lead to the conclusion that the
complaint filed must be the complaint served for the requirements of sufficiency
of process to be met.
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But, fortunately, more than logic supports our holding. So does
longstanding case law.
Our conclusion is supported by Dowell Co. v. Gagnon, 36 Wn. App. 775,
776, 677 P.2d 783 (1984). There, the trial court entered summary judgment in
favor of the plaintiff after ruling “that the statute of limitations had been tolled by
commencement of another action with the same parties and purpose and in the
same venue 10 years before.” Dowell, 36 Wn. App. at 775-76. We reversed,
concluding that “‘[T]he complaint’ is the one filed in the action before the court,
not a complaint independently filed.” Dowell, 36 Wn. App. at 776 (alteration in
original) (quoting Fox v. Groff, 16 Wn. App. 893, 895, 559 P.2d 1376 (1977)).
This holding further supports our conclusion that CR 4 envisions that the
complaint filed with the court is “the complaint” to be served on a defendant for
the purpose of obtaining personal jurisdiction and commencing a civil action. 5
Thus, as to the April service of process, the process served was
insufficient to commence a civil action.
b.
As to timeliness, had the content of the process served on April 20 been
sufficient, service of that process would have been timely. But this conclusion
provides no solace to plaintiffs.
5 While not construing CR 3 and CR 4, Banzeruk v. Estate of Howitz, 132 Wn. App. 942,
135 P.3d 512 (2006), is in accord. There, the plaintiff filed a complaint for a personal injury action
against Howitz, not knowing that Howitz had died. Banzeruk, 132 Wn. App. at 944. Upon
learning of Howitz’s death, the plaintiff filed an amended complaint naming the estate and
personal representative. Banzeruk, 132 Wn. App. at 944. We determined that the original
complaint filed was “the complaint” for the purposes of commencing the action. Banzeruk, 132
Wn. App. at 947. As we then held, “filing an amended complaint is not equivalent to filing ‘the
complaint.’” Banzeruk, 132 Wn. App. at 948. The principle here is the same: the filed complaint
is the operative complaint.
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2
To the extent that we can, we next examine the sufficiency and timeliness
of the process served in November.
a.
The parties agree that the documents served on the two defendants in
November were copies of the documents (summons and complaint) filed in the
superior court in April. Thus, if service of this process was accomplished in a
timely fashion, this civil action was properly commenced and personal jurisdiction
was obtained.
b.
We next review whether the November service of process was timely. To
do so, we must first explain what it means to be “timely” when a limitation period
is tolled and the applicable period of tolling is not set forth in the tolling statute.
We must then determine whether, on this record, the necessary question can be
answered.
(1)
The words of RCW 4.16.170 do not establish the length of time the
applicable limitation period is tolled when the statute’s requirements are met.
Case law holds that, read literally, RCW 4.16.170 tolls the statute of limitation for
an unspecified period. Sidis, 117 Wn.2d at 329; accord Kim v. Lakeside Adult
Fam. Home, 185 Wn.2d 532, 559, 374 P.3d 121 (2016). However, our Supreme
Court has clarified that the tolling period is not infinite or indefinite. Sidis, 117
Wn.2d at 329; Kim, 185 Wn.2d at 559. Rather, the court has ruled that plaintiffs
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“must proceed with their cases in a timely manner as required by court rules.”
Sidis, 117 Wn.2d at 329. Thus, the plaintiff must act diligently to properly serve
the defendants. Kim, 185 Wn.2d at 561. Whether a party acts with necessary
diligence is a question of fact for the trial court. Winbun v. Moore, 143 Wn.2d
206, 219, 18 P.3d 576 (2001).
(2)
Importantly, when dealing with the tolling statute, RCW 4.16.170, the plain
language of the statute controls. Nearing, 114 Wn.2d at 822. As the Supreme
Court therein explained,
The statute, RCW 4.16.170, deals exclusively with tolling of the
statute of limitations and requires a plaintiff to either file a complaint
or serve the summons upon the defendant. The court rule, CR 3
requires service of the summons and complaint or filing a complaint
in order to commence a civil action.
Nearing, 114 Wn.2d at 820-21.
These observations lead to two conclusions. First, plaintiffs could file a
complaint and serve a summons on a defendant and successfully achieve tolling
of the statute without successfully commencing the civil action. Second,
although reported cases such as Sidis and Kim have involved service on one
defendant that thereby tolls the statutory limitation period as to other defendants,
the plain language of RCW 4.16.170 allows for service of a summons on the first
defendant to toll the statute of limitation as to that defendant as well. The statute
is specific as to neither the length of the tolling period nor as to any limitation
regarding the extent of the benefits of tolling to any defendants.
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(3)
Here, the Peceljes commenced this action for the purpose of tolling, but
they were also required to properly commence this civil action pursuant to the
requirements of CR 3 and CR 4 by serving both the summons and the operative
complaint “in a timely manner.” This means that they must have acted with the
necessary diligence. The Peceljes finally served Sparks and Vongphonthong
with the summons and “the complaint” more than six months after filing the
complaint and only days before the hearing on the motion to dismiss was to be
held.
Having relied solely on the erroneous conclusion that the Peceljes had not
successfully tolled the statute of limitation, the trial court made no findings as to
the diligence with which the Peceljes acted to serve sufficient process to
commence this civil action. Diligence is a question of fact and questions of fact
are reserved to the trial court. Noll v. Special Elec. Co., 14 Wn. App. 2d 230,
237, 471 P.3d 247 (2020). Despite the facts available to us in the record,
whether service was accomplished “in a timely manner” is a question of fact for
the trial court. As this question was not resolved below, we cannot rule on the
record before us. Therefore, we remand this matter to the trial court for further
proceedings consistent with this opinion.
Reversed and remanded.
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WE CONCUR:
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