Daryl Pecelj Et Ano, V. Derek Sparks

556 P.3d 179

• Court: Court of Appeals of Washington
• Decided: September 23, 2024
• Docket: 86257-0
• Status: Published

Opinion

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 No. 86257-0-I/2

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.

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).

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.”

7 No. 86257-0-I/8

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.

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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To the extent that we can, we next examine the sufficiency and timeliness

of the process served in November.

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.

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

Reversed and remanded.

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WE CONCUR: