Elliott v. Peterson

599 P.2d 1282, 92 Wash. 2d 586, 1979 Wash. LEXIS 1430

• Court: Washington Supreme Court
• Decided: September 13, 1979
• Docket: 45964
• Status: Published

Opinions

Rosellini, J.

In this action, the plaintiff seeks damages for the death of his wife, allegedly resulting from negligence of the defendant dentists. The controversy was before this court earlier in Elliott v. Kundahl, 89 Wn.2d 639, 574 P.2d 732 (1978), where we held that the plaintiff's motion for voluntary nonsuit had been erroneously denied. It was further held in that case that the court had erred in granting the defendant's motion to dismiss with prejudice. The judgment was reversed.

Shortly after our decision in that case was filed, both parties presented orders to the trial court granting the plaintiff's motion for voluntary nonsuit, and both were signed by the court. Within a few days, this action was commenced, the complaint alleging essentially the same facts as those alleged in the former complaint. The defendants promptly moved for summary judgment, asserting the statute of limitation. That motion was denied, and this court granted discretionary review.

It appears that at the time of the plaintiff's original motion for voluntary nonsuit, a period of some 2 months remained before the expiration of the applicable statute of limitation. The period of limitations expired long before the appeal was decided. Thus when this court reversed the trial court's denial of the plaintiff's motion for voluntary non-suit, he was left without a right of action, if the statute of limitation is controlling in these circumstances. Such a result would mean that a plaintiff, successfully challenging a lower court's denial of the right given him under CR 41(a), would be denied the fruits of his appeal in every case in which he intended to pursue his claim and the statute of limitation had run during the pendency of the appeal.

While the opinion of this court in Elliott v. Kundahl, supra, did not expressly order a new trial, this was its intent and import. This court ruled upon the admissibility of evidence of a covenant not to sue, a ruling which could be significant only in a new trial. Where this court reverses a judgment and makes no final disposition of the case, the usual procedure contemplated is a new trial. Rousseau v. Rosche, 158 Wash. 310, 290 P. 806 (1930); Richardson v. Carbon Hill Coal Co., 18 Wash. 368, 51 P. 402, 1046 (1897). This is true when it is fairly apparent from the court's discussion of the case that the cause is remanded with that object in view. See State ex rel. Moore & Co. v. Superior Court, 97 Wash. 250, 166 P. 628 (1917); Rousseau v. Rosche, supra. Under our holding, then, the plaintiff was entitled to a new trial if he desired to pursue the same.

The right to a voluntary nonsuit is fixed at the time the motion is made. McKay v. McKay, 47 Wn.2d 301, 287 P.2d 330 (1955); Krause v. Borjessan, 55 Wn.2d 284, 347 P.2d 893 (1959). In order to accord to the plaintiff the full benefit of that right, it must be held that his right to file a new suit based on the same claim is also fixed as of that moment. An important aspect of that right is the period of time remaining before the expiration of the statute of limitation. Accordingly, when the right to a nonsuit is erroneously denied, and it is so held on appeal, a plaintiff is entitled to an equal period of time, after the remittitur, within which to file a new action. Otherwise, the right is but a delusion in all cases where the statute of limitation expires pending appeal.

This court, in Elliott v. Kundahl, supra, reversed the trial court's order denying the plaintiff's motion for voluntary nonsuit. The effect of this was to grant that motion; and the subsequent motions for nonsuit filed by both parties were superfluous, as were the lower court's orders granting these motions. These procedures did not disturb the right of the plaintiff to bring a new action within the period of time remaining before the expiration of the statute of limitation, when the original motion was made.

The defendants argue that it is contrary to the intent of the legislature, as expressed in the statutes which govern the limitation of actions, to allow the plaintiff a period of time after the appellate decision in which to file a new action. It is true that those statutes contain no express exception for a situation of this kind. RCW 4.16.240 provides that where an action is commenced within the time prescribed therefor and a judgment for the plaintiff is reversed on appeal, he shall have 1 year to commence a new action.¹ No provision is made for the case where a judgment for the defendant is reversed on appeal. It would seem apparent that the reason for this is that such a reversal almost invariably results in the entry of a judgment for the plaintiff or the granting of a new trial. In either case, an extension of the time in which to bring a new action is unnecessary.

While the legislature did not take cognizance of the peculiar problem arising where a plaintiff is erroneously denied the right to a voluntary nonsuit, judgment is entered for the defendant, and the statute of limitation runs pending the plaintiff's appeal, it is evident that it intended that a plaintiff should not be denied the fruits of his appeal because of the passing of the period of limitations. This view also finds support in RCW 4.16.230,² which provides for the tolling of the statute where the commencement of an action is stayed by injunction. A judgment of dismissal with prejudice is not technically an "injunction." Still, its effect is to prevent the filing of another suit upon the same claim, since such a suit would be vulnerable to a plea of res judicata.

Recognition of the plaintiff's right to further pursue his claim is implicit in our decision in Elliott v. Kundahl, supra. That right is not only necessitated in order to effectuate his right to a voluntary nonsuit but is in accord with the spirit, if not the letter of the exceptions found in the statute of limitation.

We conclude that the trial court did not err in refusing to dismiss the action.

The order is affirmed and the cause is remanded for further proceedings.

Utter, C.J., Wright and Horowitz, JJ., and Hamilton, J. Pro Tern., concur.

1 "If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on error or appeal, the plaintiff, or if he dies and the cause of action survives, his heirs or representatives may commence a new action within one year after reversal." RCW 4.16.240.

2 ”When the commencement of an action is stayed by injunction or a statutory prohibition, the time of the continuance of the injunction or prohibition shall not be a part of the time limited for the commencement of the action." RCW 4.16.230.