Jody Ann Gropp, V. Christopher David Stevens

• Court: Court of Appeals of Washington
• Decided: April 22, 2025
• Docket: 58983-4
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

April 22, 2025

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II JODY ANN GROPP, No. 58983-4-II

Appellant,

v.

CHRISTOPHER DAVID STEVENS, UNPUBLISHED OPINION

Respondent.

GLASGOW, J.—Jody Gropp sued Dr. Christopher Stevens in February 2023 for injuries

allegedly caused by dental work performed between 2014 and 2016. Gropp first realized there was

a problem with the work and demanded a refund in 2019, and then she threatened litigation in

2020.

Stevens moved for summary judgment, arguing that the complaint was filed after

expiration of the three-year statute of limitations. The trial court granted Stevens’ motion and

dismissed the case. The trial court also denied reconsideration.

Gropp appeals, arguing that the trial court misapplied the discovery rule and ignored

disputed issues of material fact when it dismissed her claims. Gropp also argues that she was

deprived of her constitutional right to a jury trial. We disagree and affirm. However, we deny

Stevens’ request for attorney fees under RAP 18.9(a). No. 58983-4-II

FACTS

I. BACKGROUND

Between 2014 and 2016, Stevens performed dental work on Gropp, including crowns,

veneers, and root canals. Gropp’s veneers were painful and did not heal promptly and she began

to experience neurological symptoms in 2016. Gropp confronted Stevens in 2019, asking for a

refund for the allegedly faulty dental work so she could “go get it fixed somewhere else.” Clerk’s

Papers (CP) at 94. In June 2020, Gropp called Stevens’ office threatening litigation. In September

2020, Gropp retained counsel and sent Stevens a letter stating she anticipated filing a lawsuit due

to “severe injuries and damages she received” from Stevens’ dental treatment. CP at 151. Gropp

also requested copies of her x-rays in 2020 but was told that any records over five years old had

been purged.

II. LITIGATION

Gropp filed a dental malpractice complaint against Stevens in February 2023, alleging that

Stevens performed unneeded and incorrect procedures, failed to obtain informed consent, and

negligently administered harmful levels of an injectable anesthetic, causing cognitive problems.

In her complaint, she asserted that she “first realized a problem in 2019” and that she “obtained

professional confirmation of several problems” in 2020. CP at 8.

Stevens moved for summary judgment on statute of limitations grounds. Gropp responded,

arguing that her complaint was timely under the discovery rule. Gropp acknowledged that she

began experiencing neurological symptoms in 2016 and knew of “‘a problem’” in 2019, but she

was not yet aware that the problem was caused by malpractice. CP at 43. Instead, she asserted that

“Summer 2021 was when [Gropp] learned that toxic levels of [the anesthetic] can cause paralysis

2 No. 58983-4-II

and brain damage,” and “January 2022 was when the documents were received conclusively

establishing [Stevens’] responsibility” for her injuries. CP at 44.

The trial court denied Stevens’ motion without prejudice and discovery followed. After

deposing Gropp, Stevens moved again for summary judgment. Stevens attached Gropp’s

deposition testimony explaining that the allegedly faulty work was performed between 2014 and

2016 and that she confronted Stevens in 2019 asking for a refund.

Gropp responded, requesting “eight years tolling” because she pursued other avenues for

relief before filing her complaint. CP at 103. She also filed medical records showing that she

complained to the clinic in June and July of 2019 about allegedly faulty veneers and that she called

the clinic in June 2020 threatening to file a lawsuit against Stevens.

The trial court heard oral argument, where Gropp repeated that she realized there was “a

problem” with her dental work in 2019. Verbatim Rep. of Proc. at 5. The trial court then granted

Stevens’ motion for summary judgment and dismissed the case. The trial court also denied

reconsideration.

Gropp appeals.

ANALYSIS

SUMMARY JUDGMENT

Gropp argues that the trial court erred in granting Stevens’ summary judgment motion and

denying her motion for reconsideration because the trial court failed to properly apply the

3 No. 58983-4-II

discovery rule, ignored the evidence she presented to the court, erroneously concluded there were

no disputed material facts, and denied her due process by depriving her of a jury trial. We disagree.1

We review summary judgment rulings de novo. Vargas v. Inland Wash., LLC, 194 Wn.2d

720, 728, 452 P.3d 1205 (2019). We view all facts and take inferences in the light most favorable

to the nonmoving party. Id. Summary judgment is appropriate when there is no genuine dispute of

material fact and the moving party is entitled to judgment as a matter of law. Id.

The statute of limitations for medical malpractice is three years after the act or omission

that forms the basis for the claim or one year after discovery of the facts giving rise to the claim,

whichever is later. RCW 4.16.350(3); Adcox v. Child.’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d

15, 35, 864 P.2d 921 (1993). Additionally, the limitations period is tolled “upon proof of fraud [or]

intentional concealment” until the patient learns of the fraud or concealment, after which the

patient has one year to file a complaint. RCW 4.16.350(3). Summary judgment based on the statute

of limitations is warranted if “no genuine issue of material fact exists regarding when the statutory

period began.” B.R. v. Horsley, 186 Wn. App. 294, 298, 345 P.3d 836 (2015).

Here, because Gropp did not file her claim within three years after the dental work that

forms the basis of her claim, she must have filed no later than one year after she “discovered or

reasonably should have discovered that the injury or condition was caused by” the treatment she

received from Stevens. RCW 4.16.350(3). Gropp alleged in her complaint, testified at her

deposition, and argued at the summary judgment hearing that she discovered a problem with her

1 In Gropp’s complaint, she also raised claims of defamation and violation of the Health Insurance Portability and Accountability Act of 1996. Gropp does not argue on appeal that the trial court erred when it dismissed these claims. See Holder v. City of Vancouver, 136 Wn. App. 104, 107, 147 P.3d 641 (2006) (We do not consider issues abandoned on appeal.).

4 No. 58983-4-II

dental work and asked Stevens for a refund in 2019. Moreover, Gropp submitted evidence to the

trial court showing that she was well aware of the facts underlying the alleged malpractice in June

2019 when she complained about the work. And to the extent Gropp argues that the trial court

ignored her medical expert’s testimony, the record does not contain any indication that she

submitted an expert’s declaration or deposition transcript for the court’s consideration. Thus,

taking Gropp’s facts as true and viewing them in the light most favorable to her, the statute of

limitations expired by June 2020, one year after the evidence shows she was aware of the facts

underlying her malpractice claim.

Additionally, we note that Gropp submitted evidence showing that she was aware of the

legal basis for her claim in June 2020 when she threatened to sue Stevens. When applying the

discovery rule, our focus is the “factual, as opposed to the legal, basis of the cause of action,” but

if we did consider the date when she was aware of a legal basis for her claim, the statute of

limitations would have expired in June 2021. Adcox, 123 Wn.2d at 35. Similarly, in her brief to

this court, she asserts that she learned of additional essential facts related to her claim in January

2022, but even taking that date at face value, she would have had until January 2023 to file, at the

very latest. Yet, it was not until February 2023 that Gropp filed her complaint. Therefore, the

undisputed facts show that Gropp filed her complaint after the statute of limitations expired.

In her brief to this court, Gropp alleges that she discovered new evidence in April 2023

showing that Stevens injected her with a toxic amount of an anesthetic that caused her neurological

injury. Gropp does not indicate what evidence she obtained in April 2023 but cites her complaint,

where she alleged that Stevens negligently administered harmful levels of the anesthetic causing

cognitive problems. But Gropp alleged below that her neurological problems began in 2016 and

5 No. 58983-4-II

that she learned in 2021 that the anesthetic could cause neurological damage. Thus, she had the

facts necessary to bring her claim for neurological injury by 2021, and any further discovery in

2023 would not have extended the expiration of the statute of limitations.

Furthermore, Gropp argues that Stevens’ concealment or fraud should also have tolled the

statute of limitations. But the tolling provision for fraud and concealment is “aimed at conduct or

omissions intended to prevent the discovery of negligence or of the cause of action.” Gunnier v.

Yakima Heart Ctr., Inc., 134 Wn.2d 854, 867, 953 P.2d 1162 (1998); see RCW 4.16.350(3). Gropp

has not alleged any facts that would constitute fraud or concealment aimed at concealing the facts

that constitute her claim of malpractice, so there is no genuine issue of material fact as to this basis

for tolling. And even if she had alleged fraud or concealment within the meaning of the statute,

she admitted that she still had sufficient facts to be aware of both the factual and legal basis for her

claim by June 2020 when she threatened to sue Stevens, and she failed to bring her lawsuit within

one year of even that date. Therefore, there is no genuine dispute of material fact as to whether

Gropp’s claim was timely filed. See B.R., 186 Wn. App. at 298.

Finally, Gropp argues for the first time in this appeal that she was deprived of her

constitutional right to a jury trial on disputed material facts. We generally do not consider

unpreserved errors raised for the first time on appeal. RAP 2.5(a). Even if we were to consider this

issue, the Washington Supreme Court has explained that “[w]hen there is no genuine issue of

material fact, . . . summary judgment proceedings do not infringe upon a litigant’s constitutional

right to a jury trial.” LaMon v. Butler, 112 Wn.2d 193, 199 n.5, 770 P.2d 1027 (1989). This claim

also fails.

6 No. 58983-4-II

We affirm the trial court because the undisputed facts show that Gropp filed her complaint

after the statute of limitations expired. We need not consider Gropp’s additional arguments related

to whether there was genuine dispute of material fact regarding the underlying injury or causation.

ATTORNEY FEES

Stevens requests attorney fees under RAP 18.9(a), arguing that Gropp’s appeal is frivolous.

Under RAP 18.9(a), we have discretion to award sanctions, terms, or compensatory damages when

a party files a frivolous appeal. “An appeal is frivolous if, considering the entire record, the court

is convinced that the appeal presents no debatable issues upon which reasonable minds might

differ, and that the appeal is so devoid of merit that there is no possibility of reversal.” Advocs. for

Responsible Dev. v. W. Wash. Growth Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010).

We resolve doubts about frivolousness in the appellant’s favor. Id.

The alleged malpractice occurred almost ten years ago, and Gropp has never presented

evidence, or even alleged facts that could plausibly have extended the statute of limitations until

the time of filing. She has also cited nonexistent cases in her briefing. See Br. of Appellant at 27

(citing Hoggatt v. City of Seattle, 137 Wn.2d 939, 977 P.2d 621 (1999)); Br. of Appellant at 25,

38-39, 42 (citing Guerra v. Johnson, 179 Wn.2d 722, 317 P.3d 239 (2014)).

But Gropp’s delayed filing seems to have been a product of misunderstanding rather than

malice. For instance, in her notice of appeal, she discusses her desire to complete an investigation

and obtain all the relevant facts before filing her complaint—understandable for a self-represented

litigant unfamiliar with the discovery process. She also seems to have misunderstood the law

regarding tolling, thinking that discovering more evidence would restart the clock on the statute of

limitations.

7 No. 58983-4-II

Though she does not prevail, we resolve doubts about the frivolousness of this appeal in

Gropp’s favor. Advocs. for Responsible Dev., 170 Wn.2d at 580. And the rule gives us discretion

as to whether to impose attorney fees even where arguments are frivolous. RAP 18.9(a). We

decline to award attorney fees to Stevens.

CONCLUSION

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.

GLASGOW, J. We concur:

MAXA, J.

VELJACIC, A.C.J.