Bulldog Property Services, Inc., V. Maria Cruz

• Court: Court of Appeals of Washington
• Decided: September 23, 2024
• Docket: 85990-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARIA CRUZ, No. 85990-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION BULLDOG PROPERTY SERVICES, INC., a Washington Corporation,

Respondent.

BIRK, J. — Maria Cruz appeals the summary judgment dismissal of her

negligence lawsuit against Bulldog Property Services, Inc., arguing the corporate

dissolution statute, RCW 23B.14.340, extended the statute of limitations for an

additional three years after Bulldog administratively dissolved. Finding no error,

we affirm.

Cruz alleged that on May 5, 2020, she fell and was injured “due to

negligence by [Bulldog’s] agents/employees, who created a dangerous condition

on rental premises that [Cruz] managed at the time.” Cruz alleged Bulldog’s

agents “carelessly placed cabinets and other remodeling materials in the lobby of

the building,” causing her to fall and suffer injuries. On November 21, 2022, Cruz

filed a personal injury suit against Bulldog. Bulldog administratively dissolved on

February 9, 2023. Cruz served Bulldog a copy of the summons and complaint on

May 16, 2023, more than three years after her injury. Bulldog was reinstated on

June 5, 2023. No. 85990-1-I/2

Bulldog filed a motion for summary judgment, requesting that the trial court

dismiss Cruz’s claims because she failed to serve process until after the expiration

of both the three year limitation period and the 90 day period after filing pursuant

to RCW 4.16.170. The trial court granted Bulldog’s motion and dismissed Cruz’s

complaint with prejudice. Cruz filed a motion for reconsideration, which the trial

court denied. Cruz appeals.

We review trial court orders granting summary judgment de novo, reviewing

the facts before the trial court and all reasonable inferences therefrom in the light

most favorable to the nonmoving party. Ballard Square Condo. Owners Ass’n v.

Dynasty Constr. Co., 158 Wn.2d 603, 609, 146 P.3d 914 (2006). Summary

judgment is appropriate only when there are no genuine issues of material fact and

where reasonable minds could reach but one conclusion. Crisostomo Vargas v.

Inland Wash., LLC, 194 Wn.2d 720, 728, 452 P.3d 1205 (2019); CR 56(c).

The limitations period for a negligence action is three years. RCW 4.16.080;

James v. McMurry, 195 Wn. App. 144, 148 n.1, 380 P.3d 591 (2016). Barring

application of the discovery rule, a cause of action for negligent injury accrues at

the time the act or omission occurs. In re Estates of Hibbard, 118 Wn.2d 737, 744-

45, 826 P.2d 690 (1992). The limitations period is tolled for 90 days to allow

service following the filing of a complaint, or vice versa. RCW 4.16.170. This

statute is known as the “tentative commencement rule” and, when it applies,

provides that an action shall be deemed commenced for the purpose of tolling any

statute of limitations when the complaint is filed or summons served, whichever

occurs first. Pac. Erectors, Inc. v. Gall Landau Young Constr. Co., Inc., 62 Wn.

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App. 158, 164 n.3, 813 P.2d 1243 (1991). When RCW 4.16.170 applies, filing and

service upon at least one defendant must occur within the 90 days before the

statute of limitations is tolled. Seamans v. Walgren, 82 Wn.2d 771, 776, 514 P.2d

166 (1973). Both filing and service must occur or a suit is a nullity. Citizens

Interested in the Transfusion of Yesteryear v. Bd. of Regents of the Univ. of Wash.,

86 Wn.2d 323, 330, 544 P.2d 740 (1976), overruled on other grounds by Jones v.

Stebbins, 122 Wn.2d 471, 860 P.2d 1009 (1993). Here, Cruz alleged the incident

occurred on May 5, 2020. Cruz filed suit on November 21, 2022, but Bulldog was

not served until May 16, 2023, outside both the 90 day period and the three year

limitation period.

Despite failing to serve Bulldog within the limitation period and not coming

within the provisions of RCW 4.16.170, Cruz argues the corporate dissolution

statute, RCW 23B.14.340, extended the statute of limitations for an additional three

years after Bulldog administratively dissolved. RCW 23B.14.340 states,

The dissolution of a corporation . . . shall not take away or impair any remedy available against such corporation, its directors, officers, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution or arising thereafter, unless action or other proceeding thereon is not commenced . . . within three years after the effective date of any dissolution that is effective on or after June 7, 2006.

A corporation is a distinct legal entity, existing artificially in law and maintaining its

own legal obligations and interests separate from its officers, directors, employees,

and other agents through whom it acts. State v. Brelvis Consulting, LLC, 7 Wn.

App. 2d 207, 215, 436 P.3d 818 (2019). At common law, when a corporation

dissolved it ceased to exist for all purposes and therefore could not be sued.

3 No. 85990-1-I/4

Ballard Square, 158 Wn.2d at 609. The common law rule has been modified in

most states by statutes generally known as survival statutes, which permit lawsuits

to be filed against dissolved corporations for a limited period. Id.; RCW

23B.14.340.

RCW 23B.14.340 is such a survival statute, preserving claims against

dissolved corporations as long as they are filed within three years after the date of

dissolution. R.N. v. Kiwanis Int’l, 19 Wn. App. 2d 389, 401, 496 P.3d 748 (2021),

review denied, 199 Wn.2d 1002, 504 P.3d 825 (2022). The three year period “is

not a statute of limitations” but instead “is a statute of repose.” Id. at 404. “A

statute of limitation bars a plaintiff from bringing an accrued claim after a specific

period of time,” whereas a “statute of repose terminates the right to file a claim

after a specified time even if the injury has not yet occurred.” Wash. State Major

League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit

Constr. Co., 176 Wn.2d 502, 511, 296 P.3d 821 (2013). The statute ensures that

a corporation’s dissolution does not foreclose claims, but a claim must still be

“commenced within the statute of limitations applicable to the particular cause of

action asserted.” Ballard Square, 158 Wn.2d at 619.

Cruz’s claim is not barred because the corporation dissolved. Rather, it is

barred because she failed to commence her action “within the statute of limitations

applicable to the particular cause of action asserted.” Id. If she had timely

commenced her action within the three year limitation period, and within three

years of dissolution, then RCW 23B.14.340 would have protected her suit from the

common law rule barring claims against a dissolved corporation. But the three

4 No. 85990-1-I/5

year statute of limitations remained applicable to her claim, is an independent

defense, and expired before she commenced the action.

Affirmed.

WE CONCUR: