Filed
Washington State
Court of Appeals
Division Two
June 6, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CHRISTOPHER ENGLISH, an individual, No. 50031-1-II
Appellant,
v.
DENNIS ALVIN BUSS, individually, UNPUBLISHED OPINION
Respondent,
STATE OF WASHINGTON, Department of
Corrections, STATE OF WASHINGTON,
Department of Social and Health Services,
Defendants.
JOHANSON, P.J. — Christopher English filed a motion to amend a negligence complaint
to add Dennis Buss as a defendant. The existing defendants, Department of Social and Health
Services (DSHS) and Department of Corrections (DOC), did not oppose the amendment. Superior
Court Judge Vicki Hogan granted the unopposed motion allowing the amendment and ruled that
the amended complaint related back to the original complaint. This relation-back ruling defeated
Buss’s potential statute of limitations defense. After Buss was served notice of the lawsuit, he
filed a CR 60 motion for relief from the relation-back order and requested summary judgment
based on the statute of limitations. Superior Court Judge Edmund Murphy struck the relation-back
No. 50031-1-II
ruling and granted summary judgment with respect to English’s claim against Buss on statute of
limitations grounds.
English appeals Judge Murphy’s order vacating Judge Hogan’s relation-back ruling and
Judge Murphy’s summary judgment dismissal of English’s claims against Buss. English argues
that (1) Judge Murphy violated Pierce County Local Rule (PCLR) 7(c)(5) when he reviewed Judge
Hogan’s relation-back order and (2) Judge Murphy improperly reviewed the CR 15(c) relation-
back ruling under a CR 60 motion for relief. English also argues that (3) even if Judge Murphy
could have reviewed the relation-back order, he erred when he concluded that English did not meet
the relation-back requirements and granted summary judgment.
We hold that (1) English did not preserve the PCLR 7(c)(5) issue and (2) to the extent
Judge Murphy relied on CR 60, he erred when he reviewed the CR 15(c) relation-back ruling
because such interlocutory orders are not reviewable under CR 60. However, Judge Murphy had
the authority to address a due process violation and therefore properly considered Buss’s motion
for relief. Finally, (3) Judge Murphy properly found that English did not meet the relation-back
requirements and properly granted summary judgment. We affirm.
FACTS
I. BACKGROUND FACTS
In 2011, Buss, a DSHS employee, directed four DOC inmates, including English, to help
him dismantle a travel trailer that was given to him for his personal use. Buss did not have DSHS
approval to use DOC inmates for his private purposes. On June 8, while breaking down the trailer,
English was seriously injured.
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No. 50031-1-II
From June 2011 and throughout 2012, DSHS and the Washington State Executive Ethics
Board investigated this incident. DSHS concluded that Buss demonstrated significant lapses in
judgment and acted negligently when he directed the inmates to perform work for his individual
benefit and when he did not ensure they used proper safety equipment. DSHS attempted to
terminate Buss, but eventually allowed him to resign. The Ethics Board concluded that Buss
violated Washington statutory prohibitions regarding conflicts of interests, securing special
privileges from his public service employment, and using state resources for personal benefit.
II. ORIGINAL COMPLAINT, ANSWER, DISCOVERY, AND SUMMARY JUDGMENT
On June 3, 2014, English filed a complaint alleging negligence related to the June 8, 2011
incident. The complaint designated DSHS and DOC as the defendants under the “Parties and
Jurisdiction” section. English served notice of the complaint on DSHS and DOC. In this same
section, the complaint stated, “DENNIS ALVIN BUSS (‘DSHS Supervisor Buss’), was an
employee of the STATE OF WASHINGTON Department of Social and Health Services acting
within the course and scope of his employment at all relevant times herein.” 1 Clerk’s Papers (CP)
at 2. But the complaint did not name Buss as a defendant in his individual capacity, although the
complaint referred to Buss’s actions leading to English’s injury throughout the complaint. Buss
was not named in the caption of the complaint. English did not serve Buss with notice of the
complaint at this time.
DSHS and DOC filed an answer, admitted Buss was a former DSHS employee, denied that
Buss had acted within the scope of employment during the June 8 incident, and referred to Buss
as a “nonparty.” For 15 months, English, DSHS, and DOC engaged in discovery. Buss did not
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No. 50031-1-II
participate in the discovery proceedings. On September 18, 2015, DSHS and DOC filed a motion
for summary judgment in which they claimed Title 51 RCW immunity.
III. AMENDED COMPLAINT
On September 24, 10 weeks before trial, English filed a motion to amend his complaint.
English asked to bring additional claims against DSHS and DOC and also requested to add Buss
in his individual capacity as a defendant in order to bring claims “that will not be subject to Title
51 immunity.” 1 CP at 45.
English requested under CR 15(c) that the amendment relate back to the original complaint
filing date. English argued that Buss would not be prejudiced if added because “[Buss] will most
likely be defended by the attorney general’s office.” 1 CP at 51. English further contended that
the complaint related back because Buss, DSHS, and DOC shared a community of interest and
because the amendment merely represented a change in Buss’s capacity when he was already
named in the original complaint’s parties section. Neither DSHS, DOC, nor English served Buss
with notice of the motion to amend the complaint.
DSHS and DOC did not oppose the motion. On October 2, Judge Hogan granted the
motion to amend without a hearing. The order stated, “[T]hat the Amendments relate back to the
original filing of this case under [CR] 15(c).” 1 CP at 147.
English filed the amended complaint and served Buss with the summons and complaint on
October 13. Trial was set for December 1. An attorney appeared for Buss on October 23. On
November 18, he filed a motion to dismiss, or in the alternative, to continue the trial date and
reopen discovery. In the motion, Buss argued that English’s amended complaint ran afoul of the
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No. 50031-1-II
statute of limitations because English could not meet the requirements under CR 15(c) for the
amended complaint against Buss to relate back to English’s original complaint.
Also on November 18, DSHS and DOC submitted a notice of settlement that also stated
that Buss remained a defendant. The superior court entered a stipulated judgment against DSHS
and DOC. On December 1, English and Buss stipulated to an order to continue the trial date to
May 1, 2016. The new case schedule provided that discovery would end February 29.
IV. BUSS’S CR 60 MOTION FOR RELIEF
In January, Buss filed a CR 60 motion for relief from Judge Hogan’s relation-back order
granting English’s motion to amend the complaint. In his motion, Buss sought summary judgment
dismissal of the claim against him, raised a statute of limitations defense, and sought relief under
CR 60(b)(1), (4), and (11). The superior court transferred the motion and the case to Judge Murphy
as a matter of normal case management.
Judge Murphy heard argument on Buss’s motion. Buss argued that Judge Hogan
improperly granted the relation-back motion because the motion was unopposed, which deprived
the superior court of the information that English could not meet the elements of CR 15(c). Buss
admitted that he could not find case law in which a relation-back order was considered under a CR
60 motion for relief. But he argued that he was otherwise without a civil remedy to object to being
added as a party because he could not bring a reconsideration motion because he was served
outside the 10-day window to bring such a motion. Buss further argued that Judge Hogan should
not have ruled on a relation-back motion before he could be heard on that matter because it
effectively eliminated his meritorious statute of limitations defense.
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No. 50031-1-II
English argued that Buss’s motion should be denied because a CR 60 motion is not the
proper procedure to reconsider a relation-back ruling. English did not argue that consideration of
the relation-back ruling violated PCLR 7(c)(5).1 Without offering legal authority in support,
English further argued that it was a standard matter of course to bring a motion to amend with a
request that it relate back, even without the party being added present when the motion is argued.
And he argued that Buss must wait for an appeal to address the relation-back issue. English further
noted that he agreed to a six-month continuance of the trial requested by Buss’s attorney and sent
over all discovery and pleadings in order to alleviate prejudice.
Judge Murphy noted that the parties did not provide authority that clarified whether a party
could challenge a relation-back ruling under CR 60. Judge Murphy concluded that this was
“[f]undamentally” a “due process issue.” Report of Proceedings (RP) at 35. He further concluded
that although English did not need to notify Buss that he was amending his complaint, Buss should
have been given the opportunity to defend against the relation-back motion. He concluded that,
based on the evidence presented, Buss never got notice of the lawsuit until October 2015, which
was outside of the statute of limitations.
Judge Murphy concluded that this was not the typical case in which Buss “knew or should
have known” he would be added to the suit. RP at 37. Judge Murphy did not explicitly conclude
whether English’s failure to add Buss to the original complaint was due to inexcusable neglect.
Judge Murphy noted that from the record, he could glean only that English brought the motion to
1
PCLR 7(c)(5) states, “No party shall reargue the same motion to a different judicial officer
without showing by affidavit, what motion was previously made, when and to which judicial
officer, what the order or decision was, and any new facts or other circumstances that would justify
seeking a different ruling from another judicial officer.”
6
No. 50031-1-II
amend in order to bring claims that would not be subject to Title 51 RCW immunity. He further
stated that although English claimed adding Buss was a mere “formality,” “it is much more than a
formality when the entity that was originally sued was out of the case, and Mr. Buss [was] left on
his own.” RP at 39.
Judge Murphy ruled that he could address the relation-back ruling from a due process
perspective. Judge Murphy then ruled that the order granting the motion to amend the complaint
would stand, but that he “struck the language” with respect to “relating back under CR 15(c).” 3
CP at 597. Judge Murphy concluded that the complaint against Buss did not relate back and that
the statute of limitations barred English’s action against Buss. Accordingly, he granted Buss’s
motion for summary judgment “[p]ursuant to CR 60.” 3 CP at 597. Judge Murphy denied
English’s motion for reconsideration. English appeals Judge Murphy’s order vacating the relation-
back order and Judge Murphy’s summary judgment dismissal order.
ANALYSIS
I. PCLR 7(C)(5)
First, English argues that Judge Murphy violated PCLR 7(c)(5) 2 when he revisited Judge
Hogan’s ruling that English’s amended complaint related back.3 We decline to review this issue
because it is raised for the first time on appeal.
2
PCLR 7(c)(5) states, “No party shall reargue the same motion to a different judicial officer
without showing by affidavit, what motion was previously made, when and to which judicial
officer, what the order or decision was, and any new facts or other circumstances that would justify
seeking a different ruling from another judicial officer.”
3
English also argues that if Buss’s motion were a reconsideration motion it was untimely because
it was filed more than 10 days after Judge Hogan’s order. This argument is correct but irrelevant
because Buss’s motion was not a motion for reconsideration.
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No. 50031-1-II
We may refuse to review any claim of error that was not raised in the trial court. RAP
2.5(a). However, a party may raise certain claimed errors for the first time in the appellate court.
RAP 2.5(a). English did not argue below that PCLR 7(c)(5) prevented Buss from challenging the
relation-back ruling before Judge Murphy. English also does not argue here that any RAP 2.5(a)
exceptions apply.
The many reasons behind RAP 2.5(a) are well settled. See State v. Strine, 176 Wn.2d 742,
749, 293 P.3d 1177 (2013); State v. Weber, 159 Wn.2d 252, 271-72, 149 P.3d 646 (2006); State v.
Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012); State v. Scott, 110 Wn.2d 682, 685-86, 757
P.2d 492 (1988).4 English fails to provide any grounds on which we should reach this issue for
the first time on appeal. Thus, we decline to address Buss’s PCLR 7(c)(5) argument.
II. CR 60 REVIEW
A. CR 60 MOTION FOR RELIEF FROM AN INTERLOCUTORY ORDER
Next English argues that Judge Murphy erred when he considered Buss’s CR 60 motion
for relief because CR 60 does not apply to an interlocutory order granting a motion to amend; it
can only address relief from a final judgment. We agree that CR 60 does not apply.
We review questions of law de novo. Wash. State Farm Bureau Fed’n v. Gregoire, 162
Wn.2d 284, 300, 174 P.3d 1142 (2007). Here, English presents the legal, procedural question of
whether a CR 15(c) relation-back ruling can be reviewed on a CR 60 motion. Thus, we review
this issue de novo.
4
RAP 2.5(a) makes no distinction between civil and criminal cases. State v. WWJ Corp., 138
Wn.2d 595, 601, 980 P.2d 1257 (1999).
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No. 50031-1-II
CR 60(b) allows for review of final orders. Washburn v. Beatt Equip. Co., 120 Wn.2d 246,
300-01, 840 P.2d 860 (1992). CR 60(b) is not the proper vehicle to use where interlocutory orders
are concerned. Washburn, 120 Wn.2d at 300-01. A ruling on a CR 15 motion to amend is
interlocutory in nature. Taylor v. Bell, 185 Wn. App. 270, 297 n.25, 340 P.3d 951 (2014), review
denied, 183 Wn.2d 1012 (2015). Thus, we hold that to the extent Judge Murphy relied on CR 60,
he erred by reviewing and vacating an interlocutory CR 15(c) relation-back ruling as a matter of
law under a CR 60(b) motion for relief.
B. AUTHORITY TO REVIEW THE CR 15(C) RULING
English next argues that Washburn establishes that the use of CR 60 motions to review
interlocutory orders is barred and that it is disingenuous for Buss to argue that his motion was
anything but a CR 60 motion. We hold that Judge Murphy had the authority and the duty to address
a due process violation and therefore properly considered Buss’s motion for relief.
1. STANDARD OF REVIEW AND RULES OF LAW
“We review questions of law, including constitutional due process guaranties, de novo.”
State v. Derenoff, 182 Wn. App. 458, 465, 332 P.3d 1001 (2014). “Due process requires ‘notice
reasonably calculated to apprise a party of the pending proceedings affecting him and an
opportunity to present his objections before a competent tribunal.’” Conner v. Universal Utils.,
105 Wn.2d 168, 173, 712 P.2d 849 (1986) (quoting State v. Ralph Williams’ N. W. Chrysler
Plymouth, Inc., 87 Wn.2d 327, 335, 553 P.2d 442 (1976), dismissed, 430 U.S. 952 (1977)).
“Procedural due process ‘[a]t its core is a right to be meaningfully heard, but its minimum
requirements depend on what is fair in a particular context.’” Derenoff, 182 Wn. App. at 466
(alteration in original) (quoting In re Det. of Stout, 159 Wn.2d 357, 370, 150 P.3d 86 (2007)).
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No. 50031-1-II
We may affirm on any basis supported in the record. Deep Water Brewing, LLC v. Fairway
Res. Ltd., 170 Wn. App. 1, 11, 282 P.3d 146 (2012). Application of CR 15(c), which permits the
relation back of an amendment changing a defendant, must comport with the minimal due process
requirements of giving the new party an opportunity to be heard at a meaningful time and in a
meaningful manner. Pub. Util. Dist. No. 1 of Klickitat County v. Walbrook Ins. Co., 115 Wn.2d
339, 349, 797 P.2d 504 (1990).
Division One of this court has also held that “because interlocutory orders are not
automatically appealable, permitting a trial court to correct any mistakes prior to entry of final
judgment serves the interests of judicial economy.” Alwood v. Harper, 94 Wn. App. 396, 400-01,
973 P.2d 12 (1999).
2. DUE PROCESS CONCERNS ALLOWED JUDGE MURPHY TO EXERCISE REVIEW
Judge Murphy stated that he considered Buss’s ability to contest the relation-back ruling
“[f]undamentally” a “due process issue.” RP at 35. And Judge Murphy stated that Buss should
have had, but was denied, the opportunity to contest the relation-back ruling. We agree.
Application of CR 15(c) must comport with the minimal due process requirements of
giving the new party an opportunity to be heard at a meaningful time and in a meaningful manner.
Pub. Util. Dist. No. 1 of Klickitat County, 115 Wn.2d at 349. We review the particular context of
a case to determine if the minimum due process requirements are met. Derenoff, 182 Wn. App. at
466. Here, Judge Hogan found that English’s claim related back without hearing from Buss on
October 2. English did not serve Buss with the summons and the complaint until October 13.
Thus, Buss was not a party to the lawsuit at the time Judge Hogan ruled on the relation-back
motion. Since Buss was not a party to the lawsuit and did not get notice reasonably calculated to
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No. 50031-1-II
apprise him of the hearing affecting him and an opportunity to present his objections before a
competent tribunal, Buss was denied due process.5 Conner, 105 Wn.2d at 173.
We hold that where Buss was not notified of English’s relation-back motion such that Buss
was left without an option besides litigating the case and appealing later, Buss was not afforded
appropriate procedural safeguards, leaving him without opportunity to be heard at a meaningful
time and in a meaningful manner. Pub. Util. Dist. No. 1 of Klickitat County, 115 Wn.2d at 349;
Derenoff, 182 Wn. App. at 466.
This view comports with precedent that where a party may be added to a suit under a
relation-back motion, the added party should be given timely notice in order to defend against a
relation-back motion. See Martin v. Dematic, 182 Wn.2d 281, 286, 340 P.3d 834 (2014) (in which
the trial court heard a summary judgment motion from the party that the plaintiff sought to add as
a defendant); Miller v. Campbell, 164 Wn.2d 529, 535, 192 P.3d 352 (2008) (in which a party that
the plaintiff sought to add was given timely notice such that the party was able to submit an answer
to the motion, objecting to being added); Kommavongsa v. Haskell, 149 Wn.2d 288, 294, 67 P.3d
1068 (2003) (same).
Additionally, permitting a trial court to correct any mistakes in an interlocutory order
before final judgment serves judicial economy interests. Alwood, 94 Wn. App. at 400-01. English
suggests that Buss should have gone to trial and appealed the relation-back order only after a final
5
English asserts that Buss should have filed a reconsideration motion. But Buss was not in a
position to file a reconsideration motion as English suggests. Because Buss was not served with
notice of the lawsuit until 11 days after the relation-back ruling, he was prevented from filing a
motion for reconsideration, which had to be filed 10 days after the entry of the order. PCLR
7(c)(2); CR 59(b). Further, it is doubtful that Buss, as a nonparty to the hearing, had standing to
file a reconsideration motion.
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No. 50031-1-II
verdict. This suggestion would not serve judicial economy, and we see no reason to adopt such a
view. We hold that it was in the interest of judicial economy for Judge Murphy to correct Judge
Hogan’s relation-back ruling, rather than having Buss submit to trial and wait until a final judgment
to appeal. We thus hold that Judge Murphy properly exercised review to afford relief as justice
and judicial economy required in order to ensure Buss’s due process rights.
III. CR 15(C) RELATION-BACK CLAIM AND SUMMARY JUDGMENT
English next argues that even if Buss had properly challenged the amendment order, Judge
Murphy incorrectly concluded that the CR 15(c) relation-back requirements were not met and
thereby erred when he granted summary judgment on the basis that the statute of limitations had
run. We disagree.
A. STANDARD OF REVIEW AND RULES OF LAW
We review whether the CR 15(c) requirements have been met de novo. Martin, 182 Wn.2d
at 287-88. CR 15(c) provides that if a party amends their complaint and meets the requirements
of the rule, their amended complaint “relates back” to the date of the original pleading and thus is
considered timely. Martin, 182 Wn.2d at 288.6 “CR 15(c) has two textual and one judicially
6
The full text of CR 15(c) states,
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 the original party, the
party to be brought in by amendment (1) has received such notice of the institution
of the action that the new party will not be prejudiced in maintaining her or 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 the new party.
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No. 50031-1-II
created requirements.” Martin, 182 Wn.2d at 288.7 All three requirements must be satisfied in
order for a claim to relate back. Stansfield v. Douglas County, 146 Wn.2d 116, 122, 43 P.3d 498
(2002).
The party seeking to amend its complaint has the burden to prove the two textual
requirements under CR 15(c) for relation back to occur. Martin, 182 Wn.2d at 288-89.
First, the text requires that “the added party must have received notice of the action within
the limitations period such that he or she will not be prejudiced in maintaining his or her defense
on the merits.” Martin, 182 Wn.2d at 288; CR 15(c)(1). Notice may be actual or constructive to
fulfill CR 15(c). Beal v. City of Seattle, 134 Wn.2d 769, 780, 954 P.2d 237 (1998). Second, “the
added party must have known or should have known that but for a mistake concerning his or her
identity, the action would have been brought against him or her.” Martin, 182 Wn.2d at 288; CR
15(c)(2).
Washington courts have also followed federal precedent to add an “inexcusable neglect”
requirement to the text of the rule. Martin, 182 Wn.2d at 289. Under that requirement, plaintiffs
may not add new defendants if they delay in doing so “‘due to inexcusable neglect.’” Martin, 182
Wn.2d at 289 (quoting N. St. Ass’n v. City of Olympia, 96 Wn.2d 359, 368, 635 P.2d 721 (1981)).
7
CR 15(c) also has a threshold requirement that the claim “asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth . . . in the original pleading.” Here, the
parties agree that English’s amended claim arose out of the same occurrence as the original claim.
We accept the parties’ agreement on this factor.
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No. 50031-1-II
B. NO NOTICE AND PREJUDICE
1. NOTICE
English argues that within the statute of limitations period, Buss received notice of the
lawsuit because he knew or should have known that he could be named in the suit. Again we
disagree.8
a. NO CONSTRUCTIVE NOTICE BASED ON DSHS AND ETHICS BOARD INVESTIGATIONS
First, English argues that Buss had constructive notice that he would be named as a party
because of the DSHS and Ethics Board investigations of his conduct, DSHS’ attempt to terminate
him, the Ethics Board decision, and his knowledge of English’s injuries. Buss argues that
constructive notice of the suit cannot be imputed to him based on these investigations. We agree
with Buss.
A party must have actual or constructive notice regarding the possible claim sought to be
raised against them by an amended pleading. CR 15(c)(1); Beal, 134 Wn.2d at 780. Notice may
come from sources other than the original complaint. RTC Transp., Inc. v. Walton, 72 Wn. App.
386, 395-96, 864 P.2d 969 (1994).
English relies on RTC Transport, Inc. for the proposition that the DSHS and Ethics Board
investigations against Buss were adequate to notify Buss that he could be named as a defendant.
English’s reliance on this case is misplaced. RTC Transport, Inc. involved only the addition of
claims, not added parties. 72 Wn. App. at 396.
8
There was no actual notice given to Buss within the statute of limitations period. RCW
4.16.080(2).
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No. 50031-1-II
Additionally, Division Three of this court in RTC Transport, Inc. analyzed cases in which
pretrial proceedings—including briefing on a summary judgment motion, oral argument on
pleadings and discovery—notified established parties that an opposing party would make an
additional claim. See 72 Wn. App. at 396. And in RTC Transport, Inc., the parties conducted
extensive discovery related to the claim at issue and the party adverse to the added claim
specifically asked the other party if they would make such a claim before they did so. 72 Wn.
App. at 396.
The DSHS and Ethics Board investigations took place between 2011 and 2012. English
provides no authority suggesting that the fact of these investigations, their conclusions, Buss’s
resignation, or his awareness of English’s injuries gave Buss constructive notice that he would be
added to English’s negligence complaint like the pretrial proceedings gave notice of additional
claims against established parties in RTC Transport, Inc. We hold that these investigations do not
establish constructive notice as English contends.
b. NO CONSTRUCTIVE NOTICE IN LIGHT OF CHANGED CAPACITY
Second, English argues that Buss had constructive notice because Buss was named “in the
parties section” and throughout the original complaint, and the amended complaint merely
changed Buss’s capacity to a formal defendant “in both his individual and official capacity.” Br.
of Appellant at 20. Buss argues that this case is not analogous to those English relies on such that
it establishes Buss had notice. We agree with Buss.
English relies on Beal, Miller, Kommavongsa, and Craig v. Ludy, 95 Wn. App. 715, 976
P.2d 1248 (1999), to argue that “change in the person’s capacity in the litigation satisfies the notice
requirement of the CR 15(c) test.” Br. of Appellant at 19. English oversimplifies the holdings
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No. 50031-1-II
from these cases and fails to establish that they apply here to show that Buss had constructive
notice.
Beal, Kommavongsa, and Miller all involve factual situations in which a plaintiff brought
a CR 15(c) claim to amend their original complaints to change only the plaintiff’s representative
capacity in which the suit was brought. See 134 Wn.2d at 773; 149 Wn.2d at 294; 164 Wn.2d at
535. In these cases, the notice requirements of CR 15(c) were met where the defendants had actual
notice of the lawsuit and accordingly were not prejudiced, and where the real party plaintiff in
interest ratified the lawsuit or sought to be substituted as plaintiff within a reasonable time after
objection by the adversary. Kommavongsa, 149 Wn.2d at 317 (substituting a motorist as the real
party plaintiff in interest in legal malpractice action rather than the guardians ad litem for a
motorist’s wife and daughter who originally brought the legal malpractice action); and see Beal,
134 Wn.2d at 781 (allowing a plaintiff to bring a wrongful death claim in the capacity of a personal
representative of a decedent, rather than in the capacity of a guardian ad litem for children of the
decedent as in the original filing); Miller, 164 Wn.2d at 536 (allowing a bankruptcy debtor to
substitute the bankruptcy trustee as the real party in interest in this case).
English argues that as in these cases, the amended complaint “was more in the nature of a
change in Buss’s capacity” where Buss’s name appears in the original complaint and the amended
complaint then added him to the caption as a “formal defendant.” Br. of Appellant at 20. But
English adding Buss as a named defendant in the amended complaint does not illustrate the type
of representative capacity change as found in Beal. There, the change was from a named plaintiff’s
status as a guardian ad litem to a personal representative. And in Kommavongsa, the change was
from the guardians ad litem for a motorist’s wife and daughter to the motorist. Finally, in Miller,
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No. 50031-1-II
the change was from a bankruptcy debtor to a bankruptcy trustee. In those cases, the added
plaintiffs’ connections to the original plaintiffs were such that the added plaintiffs knew about the
suit or knowledge of the suit could be imputed to the added plaintiff. See Beal, 134 Wn.2d at 775;
Kommavongsa, 149 Wn.2d at 294; Miller, 164 Wn.2d at 535. Here, there is no such evidence
illustrating that Buss had actual or imputed knowledge of English’s negligence suit.
English’s reliance on Craig similarly fails. In Craig, plaintiffs brought an action against a
motorist who was in a traffic accident. 95 Wn. App. at 716-17. The superior court dismissed the
action because the motorist died and his estate had not been joined as a party within the limitations
period. Craig, 95 Wn. App. at 717. Division Three of this court held that notice received by the
motorist’s insurer of action brought after the motorist’s death could be imputed to the motorist’s
estate. Craig, 95 Wn. App. at 720. Thus, the Craig court permitted a CR 15(c) amendment
substituting the estate as the defendant to relate back to filing of the original complaint. 95 Wn.
App. at 720.
English’s original complaint did not name Buss as a defendant in his official capacity, or
in any capacity, nor did it name him in the caption, although it referred to Buss’s actions leading
to English’s injury throughout. English fails to establish how mention of Buss in the original
complaint and his addition as a defendant in the amended complaint is analogous to the decedent’s
estate being substituted for the decedent. We hold that English’s argument that Buss had
constructive notice as a result of a mere change in capacity fails.
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No. 50031-1-II
c. NO CONSTRUCTIVE NOTICE BY VIRTUE OF A COMMUNITY OF INTEREST
Third, English argues that this case is akin to those in which the notice requirement is met
where the added and the original defendants share a community of interest. This argument fails.
English argues that this case is analogous to cases in which CR 15(c) was satisfied where
notice to an insurer could be imputed to the insured’s estate due to a community of interest
including Perrin v. Stensland, 158 Wn. App. 185, 240 P.3d 1189 (2010), LaRue v. Harris, 128
Wn. App. 460, 115 P.3d 1077 (2005), Schwartz v. Douglas, 98 Wn. App. 836, 837, 991 P.2d 665
(2000), and Craig, 95 Wn. App. at 719-20. This is unpersuasive.
Perrin helpfully summarizes each of these cases:
In each case, we concluded the amendment related back under a theory of imputed
notice. As noted in Craig, federal courts have held timely notice may be imputed
to a defendant added in an amended complaint if there is a community of interest
between the originally named defendant and the party to be added, as with
insurance carriers and the estates of their insureds.
158 Wn. App. at 196 (emphasis added). In each of these cases, the reviewing courts found a
community of interest between an insurer and the insured’s estate because the insurer would have
had to defend a suit either for the deceased insured or for his or her estate after death, and thus
notice to the insurer or to the estate could be imputed to the other. See Perrin, 158 Wn. App. at
196; Craig, 95 Wn. App. at 719-20; Schwartz, 98 Wn. App. at 840; LaRue, 128 Wn. App. at 465.
Here, English fails to establish how Buss’s former employment created a community
interest between Buss and DSHS and DOC as existed in the cases English relies on. In Perrin,
Craig, Schwartz, and LaRue, a community of interest existed where the insurer would have had to
defend a suit either for the deceased insured or for his or her estate after death. Here, Buss was no
longer a DSHS employee for two years when English brought his original negligence claim. And
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No. 50031-1-II
there is nothing in the record to suggest that DSHS and DOC had a contractual obligation to defend
Buss as an insurer would to defend an insured or their estate.
DSHS and DOC did not defend Buss. In their answer to English’s original complaint,
DSHS and DOC denied that Buss had acted within the scope of employment during the June 8
incident and referred to Buss as a “nonparty.” We hold that English’s argument that Buss had
notice by virtue of his community interest with DSHS and DOC fails.9 Further, we hold that none
of English’s arguments illustrate that Buss had notice of the lawsuit. We next analyze whether
this lack of notice prejudiced Buss in maintaining his defense pursuant to CR 15(c)(1)’s first
textual requirement.
2. PREJUDICED
English argues that Buss was not prejudiced because the superior court should have tolled
the statute of limitations where the State was properly served, and such tolling is appropriate for
unserved defendants pursuant to RCW 4.16.170. Buss argues that tolling does not apply here and
that he was prejudiced by the lack of notice. We hold that tolling does not apply here and that the
lack of notice prejudiced Buss such that English failed to meet CR 15(c)’s first textual requirement.
9
English also cites to Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1400 (9th Cir.
1984), DeSantis v. Angelo Merlino & Sons, Inc., 71 Wn.2d 222, 225, 427 P.2d 728 (1967), and
Hendrix v. Memorial Hospital of Galveston County, 776 F.2d 1255, 1257-58 (5th Cir. 1985), for
the proposition that a community interest is established where defendants are represented by the
same agent. But English does not offer any reasoned analysis explaining why that scenario would
be analogous to the facts here. “Passing treatment of an issue or lack of reasoned argument is
insufficient to merit judicial consideration.” Holland v. City of Tacoma, 90 Wn. App. 533, 538,
954 P.2d 290 (1998); RAP 10.3(a)(6). We hold that English’s listing of these cases does not merit
judicial consideration.
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No. 50031-1-II
a. TOLLING
RCW 4.16.170 states that for the purpose of tolling any statute of limitations an action
commences when a complaint is filed or summons is served. Additionally, “[i]f 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.” RCW 4.16.170. Although this statute allows service on
one defendant to toll a statute of limitations as to an unserved defendant, this presumes the
unserved defendant is a named defendant. See Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325,
327, 815 P.2d 781 (1991) (analyzing whether statute of limitations on service tolled with respect
to added defendants named in a complaint); Kim v. Lakeside Adult Family Home, 185 Wn.2d 532,
561, 374 P.3d 121 (2016).
Here, although Buss was mentioned in the body of the complaint, Buss was not a named
defendant in the caption or body of English’s complaint. Thus, contrary to English’s argument,
RCW 4.16.170 does not apply such that service on DSHS and DOC should toll the statute of
limitations against Buss. See Sidis, 117 Wn.2d at 327; Kim, 185 Wn.2d at 561.
b. PREJUDICE FROM A FORECLOSED DEFENSE
English argues that Buss was not prejudiced by the amendment. Buss argues that he was
prejudiced because the lack of notice inhibited his ability to properly prepare a defense and
foreclosed the possibility of a meritorious statute of limitations defense. We agree Buss was
prejudiced.
CR 15(c)(1) requires that “the added party must have received notice of the action within
the limitations period such that he or she will not be prejudiced in maintaining his or her defense
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No. 50031-1-II
on the merits.” Martin, 182 Wn.2d at 288. Undue delay on the part of the movant proposing the
amendment of a claim is grounds to deny a motion to amend only where such delay works undue
hardship or prejudice upon the opposing party. Caruso v. Local Union No. 690 of Int’l Bhd. of
Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 100 Wn.2d 343, 349, 670 P.2d 240
(1983). Delay alone is not sufficient reason to deny a motion, though as a practical matter, the risk
of prejudice increases with time. Caruso, 100 Wn.2d at 350.
As discussed above, English requested to add Buss in his individual capacity as a defendant
only after the State claimed Title 51 RCW immunity and after the statute of limitations had run on
the claim. English’s delay in notifying Buss about the relation-back claim foreclosed Buss from
contesting the relation-back motion by bringing a timely statute of limitations defense. English
and Buss conceded at oral argument that a statute of limitations defense is a defense on the merits
for the purpose of CR 15(c). Wash. Court of Appeals oral argument, English v. Buss, No. 50031-
1-II (Apr. 10, 2017), at 21 min., 00 sec. through 22 min., 26 sec., and 30 min., 48 sec., through 31
min., 20 sec. (on file with court). Thus, we hold that English’s delay in amending the complaint
to add Buss as a party, and the resulting delay in serving the summons and notice of complaint
until after the statute of limitations had run, prejudiced Buss.
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No. 50031-1-II
3. CONCLUSION
English had the burden to prove CR 15(c)’s first textual requirement that Buss received
actual or constructive notice of the action within the limitations period such that he was not
prejudiced. We hold that English failed to do so.10
C. FINDING AND SUMMARY JUDGMENT
We review an order of summary judgment de novo and perform the same inquiry as the
superior court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary
judgment is appropriate where the pleadings, admissions on file, and affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. CR 56(c). The statute of limitations for personal injury actions in Washington
is three years. RCW 4.16.080(2).
English served Buss with the summons and complaint nearly four years and four months
after English sustained injury. And because English failed to meet the requirements under CR
15(c) for his amended complaint to relate back to the original complaint, English’s claim against
Buss was outside the statute of limitations period. Accordingly Judge Murphy’s grant of summary
judgment on the basis that the statute of limitations barred English’s claim was appropriate.
10
Because all three elements must be met, and English fails to prove the first element, we need
not address English’s arguments regarding the remaining elements.
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No. 50031-1-II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, P.J.
We concur:
MELNICK, J.
SUTTON, J.
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