This is a case summary of Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 792 P.2d 500 (Wash. 1990). Primary subjects include, but are not limited to the following:
» WA STATE STATUTORY REQUIREMENTS FOR TOLLING OF THE PERIOD OF LIMITATIONS
» WA STATE COURT RULES FOR COMMENCEMENT OF ACTIONS
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CASE SUMMARY – 11 Facts:
[1] [On] October 23, 1982, [defendant Golden State Foods Corporation (Golden State)] . . . terminated [plaintiff Nearing.]
[2] [O]n October 18, 1985, . . . Nearing commenced an action against Golden State Foods Corporation.
[3] [On that date], Nearing served a summons, but not a complaint, on Golden State . . . shortly before the statute of limitations would have run on his cause of action.
[4] [The] summons . . . stated that the cause of action was based on a breach of contract.
[5] Thereafter Nearing changed counsel.
[6] [O]n January 16, 1986, within 90 days of the service of the summons, Nearing filed a new summons together with a complaint.
[7] [On January 31, 1986, Nearing] served [a] . . . new summons and complaint . . . on Golden State.
[8] Golden State moved to dismiss the action on the grounds that it was time barred by the 3-year statute of limitations because Nearing initially failed to serve a complaint with the summons.
[9] The trial court held that Nearing’s October 18, 1985 service of the summons alone was ineffective under Civil Rules 3 and 4 to toll the statute of limitations. The trial court, therefore, granted Golden State’s motion to dismiss.
[10] The Court of Appeals reversed, holding that CR 3 and 4 did not supersede RCW 4.16.170 and that RCW 4.16.170 controlled.
[11] The Court did not decide whether Nearing complied with the court rules concerning the commencement of actions, but only whether he complied with the statutory requirements for tolling the statute of limitations.
Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 792 P.2d 500 (Wash. 1990) (internal citations omitted) (hyperlinks added).
ISSUE #1: “The issue is whether the statute of limitations is tolled by service of a summons upon the defendant when the summons is not served with an accompanying complaint.” Id. at 819.
[1-1] TOLLING THE STATUTE OF LIMITATIONS (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.” Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 820, 792 P.2d 500 (Wash. 1990) (Wash. 1990).
Accordingly:
[1] 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.
[2] 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.
[3] 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.
Id.
“Thus, an action is tentatively commenced by service of a summons or the filing of a complaint and the statute of limitations is tolled pending filing of the summons and complaint within 90 days from the date of service.” Id. (emphasis added).
“Either of these acts will toll the statute of limitations as long as the summons and complaint are filed within 90 days.” Id. (citing RCW 4.16.170; Sterling v. County of Spokane, 31 Wash.App. 467, 471, 642 P.2d 1255 (1982)).
“The statutory provision which governs the tolling of the statute of limitations and the court rule governing the commencement of actions are reconcilable.” Id. at 820 (emphasis added).
[1-2] THE STATUTE GOVERNING TOLLING OF THE STATUTE OF LIMITATIONS (RCW 4.16.170): “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.” Nearing, 114 Wn.2d at 820 (emphasis and hyperlink added).
[1-3] THE COURT RULE GOVERNING COMMENCEMENT OF ACTIONS (CR 3): “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 (emphasis and hyperlink added).
[1-4] COMPLIANCE WITH 90-DAY RULE UNDER RCW 4.16.170 AUTOMATICALLY RESULTS IN COMMENCEMENT OF AN ACTION UNDER CR 3(a): “Pursuant to CR 3(a), an action is commenced either by service of a copy of a summons together with a copy of a complaint … or by filing a complaint.” Nearing, 114 Wn.2d at 822 (internal quotation marks omitted) (hyperlink added).
“Thus, compliance with the 90 day rule, contained in RCW 4.16.170, automatically results in the commencement of an action under CR 3(a)[;] . . . [t]he statute is consistent with the court rule.” Nearing, 114 Wn.2d at 822 (hyperlinks added).
[1-5] ACTION ON JANUARY 30, 1986 IRRELEVANT TO VALIDITY OF COMPLIANCE WITH RCW 4.16.170: In this case, the Court determined that “plaintiff caused a summons to be served on Golden State October 18, 1985.” Id. at 822. And “[o]n January 16, 1986, within the 90 days mandated by RCW 4.16.170, the plaintiff filed both a summons and complaint.” Nearing, 114 Wn.2d at 822 (emphasis and hyperlink added).
“On January 30, 1986, Nearing served a second summons and complaint on Golden State. The action on January 30, 1986 is irrelevant to the validity of the compliance with RCW 4.16.170.” Nearing, 114 Wn.2d at 822 (hyperlink added).
[1-6] CAUSE OF ACTION VALIDLY COMMENCED TOLLING STATUTE OF LIMITATIONS (AFFIRMED / ORDER OF DISMISSAL VACATED / REMANDED): The Court found that “[t]he January 16 actions of Nearing [(i.e., filing both summons and complaint)] validly ‘commenced’ the plaintiff’s cause of action for the purpose of tolling the statute of limitations.” Id. at 823 (emphasis added). Accordingly, the Court held that “[t]he Court of Appeals is affirmed[,] . . . [t]he order of dismissal is vacated[,] and the cause is remanded for further proceedings.” Id.
[1-7] NOTE REGARDING TOLLING VERSUS COMMENCEMENT OF ACTIONS: “The [C]ourt [of Appeals] did not decide whether Nearing complied with the court rules concerning the commencement of actions, but only [whether he complied with the statutory requirements for tolling the statute of limitations.” Id. at 819 (citing Nearing v. Golden State Foods Corp., 52 Wash.App. 748, 764 P.2d 242 (1988)) (emphasis added).
NOTABLES & IMPLICATIONS:
THE DISSENT (JUSTICE DORE)
(1) (DISSENT) NEARING DID NOT TOLL THE STATUTE OF LIMITATIONS: In this case, the dissent (Justice Dore) asserted that “[t]he trial court should be affirmed” based on the following:
Nearing did not toll the statute of limitations for the subject case. He totally failed to file the summons that was served on Golden on October 18, 1985.
Further, the record does not support the majority’s contention that any summons was filed within 90 days of service as required by RCW 4.16.170.
Since no summons was filed within 90 days of service, the statute was not tolled on October 18, 1985. The action was not commenced until January 16, 1986, when the complaint was filed. Nearing knew he was discharged by December of 1982, as he drew unemployment benefits during that month.
Therefore, he missed the 3-year statute of limitations by at least 10 days or by as much as 3 months if he was terminated in October 1982.
Id. at 827 (hyperlink and paragraphs added).
(2) (DISSENT) SUMMONS FILED NOT SUBSTANTIALLY THE SAME AS SUMMONS SERVED: The dissent argued, inter alia, “[t]he majority ignores the fact that RCW 4.16.170 with its reference to ‘the’ summons and not ‘a’ summons requires that the summons filed be the same as the summons served.” Id. at 826 (see Dowell Company v. Gagnon, 36 Wash.App. 775, 776, 677 P.2d 783 (1984) (” ‘[T]he complaint’ is the one filed in the action … not a complaint independently filed.”)) (emphasis and hyperlink added).
Moreover, “[t]he Court of Appeals . . . suggests that there is compliance with the statute if the two summonses are substantially identical.” Id. at 826 (citing Nearing v. Golden State Foods Corp., 52 Wash.App. 748, 752, 764 P.2d 242 (1988), review granted, 112 Wash.2d 1009 (1989)).
In this case, dissent argues the initial summons served was not substantially the same as the summons filed; “[t]he two summonses are clearly different in this case.” Id. at 826.
“Each summons was signed by a different attorney, and each directed that the defense be served on a different attorney.” Id. at 826-27. “The ‘new summons’ referred to ‘Breach of Contract’.” Id. at 827. “It is not clear what the first summons referred to, since the first summons is not in the record.” Id. at 827.
Thus, “[e]ven if the ‘new summons’ was filed on January 16, 1986, with the complaint, the statute was not tolled as of October 18, 1985.” Id. at 826.
CONFLICT OF LAWS
(3) COURT RULE IS SUPREME: “Whenever there is a conflict between a procedural statute and a court rule, the court’s rule making power is supreme. ” Id. at 821 (citing Petrarca v. Halligan, 83 Wash.2d 773, 776, 522 P.2d 827 (1974)).
(4) HARMONIZING: “Apparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible.” Id. at 821 (citing Emwright v. King Cy., 96 Wash.2d 538, 543, 637 P.2d 656 (1981)).
(5) CR 81(b) (DISSENT FOOTNOTE): “CR 81(b) states: ‘Subject to provisions of section (a) of this rule, these rules supersede all procedural statutes and other rules that may be in conflict.'” Id. at 827, fn. 1 (hyperlink added) (emphasis added).
NOTE: However, as explained above, the majority found that “[t]he statutory provision which governs the tolling of the statute of limitations and the court rule governing the commencement of actions are reconcilable.” Id. at 820 (emphasis added).
LEGISLATIVE HISTORY
(6) “Our conclusion that RCW 4.16.170 stands alone as the rule for tolling the statute of limitations is bolstered by the Twenty-Sixth Annual Report of the Judicial Council.” Id. at 822. “The Council commented on amendments to CR 3 by stating ‘[b]oth the existing rule and the proposed amended rule defer to statutory law governing the tolling of the statute of limitations.’ ” Id. at 822 (citing Washington State Judicial Council, Twenty-Sixth Annual Report 28 (1977)) (alteration in original) (hyperlink added).
STATE STATUTE VS. COURT RULE (TOLLING VS. COMMENCEMENT, RESPECTIVELY)
(7) “[T]he statute controls the tolling of the period of limitations while the rule governs the commencement of actions.” Id. at 821. “Thus it is possible to turn to the statute standing alone to ascertain that the period of limitations has not run and to the rule to ascertain whether the action has been commenced.” Id.
STATUTORY CONSTRUCTION
(8) “When the statutory language is plain and unambiguous, its meaning must be derived from the wording of the statute itself.” Id. at 822 (citing State v. Johnson, 104 Wash.2d 179, 181, 703 P.2d 1052 (1985)).
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