Department of Revenue v. Puget Sound Power & Light Co.

694 P.2d 7, 103 Wash. 2d 501

• Court: Washington Supreme Court
• Decided: January 11, 1985
• Docket: 50499-7
• Status: Published

Opinions

Utter, J.

The State Department of Revenue appeals a decision by the trial court denying the Department's claim to abandoned utility deposits held by Puget Sound Power and Light Company. Puget appeals the trial court's decision requiring it to deliver abandoned dividends to the Department. The trial court held that Puget was entitled to abandoned utility deposits because the statute of limitations had run against the owners and therefore against the Department as well. The court also held that the Department was entitled to the abandoned dividends since Puget held the dividends as a trustee and the statute of limitations had not run against either the owners or the Department. We affirm the trial court's holding as to both issues.

The primary issue with regard to abandoned utility deposits is whether Puget may keep the deposits since it never filed a report notifying the Department that the deposits were abandoned and never informed the Department prior to this suit that it believed the statute of limitations had run against the owners and the Department. The Department claims that Puget's failure to file an abandoned property report and its failure to assert the statute of limitations defense in the report precludes it from doing so now. Puget argues that filing the report would have been a meaningless act since the Department's rights were the same as the owners and the statute of limitations had run against the owners.

Prom 1955 to 1979 Puget received deposits from its customers to secure their utility payments. The receiving, holding and return of deposits was governed by Washington Utilities and Transportation Commission Rules, WAC 480-100-051 et seq., and General Rules and Provisions, Schedule 80 (tariffs). The WAC's, since 1965, have required that the deposits accrue interest. The tariffs filed by Puget pursuant to regulation provide that the deposits are placed in Puget's general account and become general corporate funds, and that the utility may transfer the deposits from one account to another when deemed necessary. The deposits are applied to the customers' current balances, if any, upon termination of service, and the remainder is refunded to the customers by check.

The procedure for canceling overage drawn checks required that if Puget was unsuccessful at locating the payee, the check was "appropriated," i.e., canceled. The amount was credited to income, debiting the liability account, resulting in an increase in cash as company income. Between 1967 and 1979 Puget received $87,579.08 from this procedure. There is no information about the amount received from 1955 to 1966, although the Department projected $53,330.53 for that period. Puget has from time to time honored stale or lost deposit refund checks.

The only factual issue in dispute at the trial was the amount Puget appropriated between 1955 and 1967. The parties stipulated to the remaining facts. The trial court held that from 1955 through 1979 RCW 63.28,¹ the Uniform Disposition of Unclaimed Property Act (UPA), governed the deposits; that under the UPA the deposits were presumed abandoned after 7 years; that since the Department's rights were cut off at the same time as the owners, after 6 years, Puget's failure to report the property abandoned did not violate the UPA nor did it toll the running of the statute of limitations. Further, Puget's occasional honoring of stale checks did not prohibit it from raising the statute of limitations defense against the Department at the trial.

RCW 63.28.100 provided that utility deposits were presumed abandoned 7 years after termination of service. RCW 63.28.170 required holders of property presumed abandoned to report to the Department with respect to that property. RCW 63.28.190 required delivery of the reported property to the Department after the Department published notice and time for retrieval by the owner had passed. The parties agreed that the 6-year statute of limitations based on a written contract applied to the refund checks.

I

Although Puget did not expressly plead the statute of limitations as an affirmative defense, the Department was well aware that it was the central issue in the litigation. The Department made the statute of limitations the principal focus of its trial memorandum and stated therein "Puget Power, on the other hand, claims that it may assert a statute of limitations bar against the State ..." Additional Clerk's Papers, at 5. CR 15(b) permits amendment of pleadings when an issue is tried with the consent of the parties, and also provides that failure to amend does not affect the result of a trial on those issues. Affirmative defenses are within the scope of CR 15(b). Rainier Nat'l Bank v. Lewis, 30 Wn. App. 419, 423, 635 P.2d 153 (1981). Puget did not waive the limitations defense by failure to plead it.

Nor did Puget waive its right to assert the defense against the Department by occasionally paying on time-barred checks. "To constitute a waiver other than by express agreement, there must be unequivocal acts or conduct of the vendor evincing an intent to waive." Birkeland v. Corbett, 51 Wn.2d 554, 565, 320 P.2d 635 (1958). This court has also explicitly held that one against whom a waiver is claimed must have intended "to relinquish such right, advantage, or benefit; and his actions must be inconsistent with any other intention than to waive them." Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954). Here there was no general written acknowledgment of time-barred debts communicated to creditors. The trial court recognized, and we agree, that Puget had the discretion to occasionally waive the statute of limitations without losing the right to assert it when it so chose.

The Department urges that even if Puget could have raised a limitations defense against the Department's claim to the deposits, failure to file a report and raise the defense in the report precludes raising it now. There is little support for this position. Puget did not file an abandoned property report but the statutory penalties for failure to file the report were for willful failure to file. Former RCW 63.28.310(1). The Department does not claim Puget's failure was "willful." Puget reasonably believed it need not file, reasoning that the property could not be claimed by the owner or by the Department a year prior to presumed abandonment under the statute. That conduct does not rise to the level of willful failure to file. The understandable conclusion Puget came to under the circumstances does not preclude Puget from now raising a limitations defense.

II

The Washington Legislature enacted the Uniform Disposition of Unclaimed Property Act in 1955. The measure is an almost exact duplicate of the model UPA. 8A U.L.A. 223 (1983). Significantly, the model UPA has a section which provides that periods of limitations shall not be a bar to the State's right to the property. UPA § 16, 8A U.L.A. 257 (1983). The Washington Legislature chose not to include that provision when it enacted Washington's UPA. The Department twice tried unsuccessfully to amend the UPA, first to provide access to certain abandoned property before the owner's statute of limitations had run, and then to add section 16 of the model UPA. Unable to convince the Legislature, the Department finally adopted its own rule in 1968 which closely paralleled UPA § 16. This court struck down the regulation as being beyond the rulemaking power of the agency. Pacific Northwest Bell Tel. Co. v. Department of Rev., 78 Wn.2d 961, 481 P.2d 556 (1971). Finally, in 1979 the Legislature enacted RCW 63.28.225² which is a codification of UPA § 16.

The Department urges the court to read Bell to require a holder of presumed abandoned property to report the abandonment and to assert a statute of limitations defense in the report or lose it. Bell does suggest such a course of action, but does not so require. Bell, at 967. The Bell court found that the Department's right to abandoned property is purely derivative and therefore RCW 4.16.160, which precludes a limitations defense against the State, is inapplicable. Bell, at 964. There, too, the court noted the legislative history of the UPA and found persuasive the Legislature's refusal to enact section 16 and subsequent Department bills. Bell, at 962-63.

The Department cites cases from other jurisdictions which have refused to permit statutes of limitations to preclude the State's right to abandoned property. However, reliance on those cases is mistaken. In Sennett v. Insurance Co. of N. Am., 432 Pa. 525, 247 A.2d 774 (1968), the court held that the State's right to escheat is separate and distinct from the owner's right to claim property. That analysis is contrary to our analysis in Bell wherein we found the State's right purely derivative and therefore no greater than the owner's. Consequently, Sennett is not persuasive. The Supreme Judicial Court of Massachusetts interpreted a provision of its abandoned property act to require reporting of abandoned property even after the owners' rights had ceased. Treasurer & Receiver Gen. v. John Hancock Mut. Life Ins. Co., 388 Mass. 410, 446 N.E.2d 1376 (1983). However, there the court was interpreting a substantially different abandoned property scheme and specific statutory language which does not appear in our UPA. Although the sentiment the court expresses appears relevant, the factual differences in the cases make it unpersuasive in this situation.

The California legislature adopted an abandoned property statute similar to Washington's in 1959. Cal. Civ. Proc. Code §§ 1500-1527 (West 1982). Their statute, however, included a provision, similar to section 16 of the model UPA, which requires an abandoned property report despite the availability of a limitations defense against the owner. While deciding a holder's statute of limitations defense to a claim by the State, the California Supreme Court took pains to clarify that the statute applied only to claims on which the statute of limitations had run between the holder and the owner after the effective date of the statute. Douglas Aircraft Co. v. Cranston, 58 Cal. 2d 462, 466, 374 P.2d 819, 24 Cal. Rptr. 851 (1962). The analysis supports Puget's position that prior to Washington's adoption of RCW 63.28.225, the limitations defense available against the owner was applicable against the Department as well. The other California cases the Department relies on do not change the Douglas court's analysis.

Finally, the Department, relying on RCW 63.28.170 and .190, urges this court to find a requirement to assert a statute of limitations defense in an abandoned property report. However, nowhere in the statute is there such a requirement. Consequently, we find as a matter of law that Puget may assert the statute of limitations as a bar to the Department's claims to abandoned utility deposits.

Based on the legislative history of the UPA and our prior case law, we find that the Department had no greater right to the utility deposits abandoned between 1955 and 1979 than did the owners. Since the owners' rights were extinguished after 6 years, the Department has no right to those deposits presumed abandoned after 7 years.

Ill

The primary issue with regard to the abandoned dividends is whether the statute of limitations had run against the owners before Puget was required to file an abandoned property report. Puget never filed an abandoned property report regarding dividends presumed abandoned, assuming the statute of limitations had run. The Department asserts that, because Puget holds the dividends as trustee, the statute of limitations did not begin to run until Puget repudiated the trust or appropriated the funds.

From 1955 to 1979, Puget from time to time declared dividends and issued checks payable to shareholders. Puget maintained separate accounts for common stock and preferred stock dividends. Amounts actually payable to shareholders were calculated and deposited. "Appropriation" procedures similar to those for unclaimed deposit checks were used if the dividend checks were not cashed within about 2 years. The money was then credited to the miscellaneous revenue account. The amount appropriated from 1955 to 1979, including interest, is $50,707.62. Puget routinely honored stale dividend checks.

The trial court found that Puget held the dividends in trust for the shareholders. The court held that the statute of limitations on the dividend checks had not run against the owners. Consequently, Puget may not now assert the limitations defense against the Department and must deliver the abandoned dividends with accumulated interest.

Puget claims that the court imposed a constructive trust on the dividends and that since Puget had done nothing wrong, the constructive trust was unjustified. The Department argues that once a corporation declares dividends and sets the amounts aside in separate bank accounts a trust relationship is automatically established. It further contends that Puget's appropriation of the funds was inequitable and unconscionable.

We affirm the trial court's finding that Puget, once it declared the dividends and established separate bank accounts for the funds, became a trustee of those funds. State v. Jefferson Lk. Sulphur Co., 36 N.J. 577, 178 A.2d 329 (1962); 11 W. Fletcher, Private Corporations § 5322, at 618 (1971); 18 C.J.S. Corporations § 468, at 1115-16 (1939). Having decided that a trust was created by establishing a special account for dividends, we must determine when the statute of limitations begins to run in favor of Puget.

In the case of a resulting trust, the statute of limitations begins to run when the trustee repudiates the trust and notice of such repudiation is brought home to the beneficiary. Arneman v. Arneman, 43 Wn.2d 787, 797, 264 P.2d 256, 45 A.L.R.2d 370 (1953). In the case of an express trust, the limitations period does not begin to run "so long as the trust subsists." Arneman, at 797. For a constructive trust the statute of limitations begins to run when the beneficiary discovers or should have discovered the wrongful act which gave rise to the constructive trust. Arneman, at 800.

Were we to find a resulting trust, Puget's appropriation of the dividends would constitute the earliest possible date of repudiation. However, the limitations period would have begun to run only when the beneficiaries became aware of the repudiation, if at all, at the beginning of this suit. Since the dividends were presumed abandoned after 7 years, see RCW 63.28.110, the statute of limitations would not have run against the beneficiaries prior to the statutory presumption of abandonment. Were we to find an express trust, the same analysis would apply since repudiation must be communicated to the beneficiary to begin the running of the limitations period. Hotchkin v. McNaught-Collins Imp. Co., 102 Wash. 161,172 P. 864 (1918).

In the case of a constructive trust, the appropriation would serve as the wrongful act. It is difficult to determine when the beneficiaries either did discover or could have discovered the appropriation. As with the resulting and express trust analyses, it is likely and reasonable that discovery would have been no earlier than the bringing of this suit since Puget routinely honored stale dividend checks. The honoring of the stale checks might also lead to the conclusion that Puget never repudiated its trust.

We need not determine what type of trust Puget held because under any type of trust the statute of limitations would not have run against the beneficiaries prior to the statutory presumption of abandonment. Puget therefore should have reported the dividends abandoned. Because the statute of limitations had not run against the owners at the time the dividends were presumed abandoned, Puget's failure to make the report and deliver the dividends and accumulated interest to the Department is a violation of the UPA. Furthermore, since the Department stands in the shoes of the owners and since the statute of limitations had not run against them, it had not run against the Department. We therefore affirm the trial court's judgment.³

Brachtenbach, Dolliver, Dimmick, Pearson, and Andersen, JJ., concur.

1 In 1983, RCW 63.28 was repealed and replaced by RCW 63.29. The change, however, does not impact the issues in this case.

2 RCW 63.28.225 became RCW 63.29.290 in 1983.

3 The dissent in this case states that Bellevue Sch. Dist. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 691 P.2d 178 (1984) overruled Pacific Northwest Bell Tel. Co. v. Department of Rev., 78 Wn.2d 961, 481 P.2d 556 (1971). Consequently, it argues, the statute of limitations cannot be enforced against the State. However, Brazier involved the State acting in its sovereign capacity. Bell, on the other hand, does not involve the State in its sovereign capacity. Rather, the State's rights are derivative. The UPA is an escheat statute and the State steps into the shoes of the owner when asserting rights against the holder. As a result, Brazier does not overrule Bell.

Bell is directly applicable to the instant case. It teaches that in an unclaimed property situation, the statute of limitations is the same for the State as for the owners of the property. Furthermore, the dissent cites no authority for its suggestion that deposits are held in trust and its conclusion that therefore the action is not time barred. Yet, there is ample authority for the majority's application of a trust fund analysis regarding the dividends.

As of 1979, the problem at issue here has been resolved. The Legislature closed the loophole by amending the UPA so that no holder may assert the statute of limitations against the State.