Nearing v. Golden State Foods Corp.

792 P.2d 500, 114 Wash. 2d 817, 1990 Wash. LEXIS 64, 57 Fair Empl. Prac. Cas. (BNA) 671
CourtWashington Supreme Court
DecidedJune 7, 1990
Docket55857-4
StatusPublished
Cited by52 cases

This text of 792 P.2d 500 (Nearing v. Golden State Foods Corp.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nearing v. Golden State Foods Corp., 792 P.2d 500, 114 Wash. 2d 817, 1990 Wash. LEXIS 64, 57 Fair Empl. Prac. Cas. (BNA) 671 (Wash. 1990).

Opinions

Callow, C.J.

— This case began when David Nearing commenced an action against Golden State Foods Corporation. Nearing served a summons, but not a complaint, on Golden State on October 18, 1985, shortly before the statute of limitations would have run on his cause of action. Thereafter Nearing changed counsel and, on January 16, 1986, within 90 days of the service of the summons, filed a new summons together with a complaint. A new summons and complaint were served on Golden State January 31, 1986.

The findings of fact were not challenged by either party. "An unchallenged finding of fact is a verity on appeal." Metropolitan Park Dist. v. Griffith, 106 Wn.2d 425, 433, 723 P.2d 1093 (1986). The following chronology sets forth the relevant dates as established by the findings of fact:

October 23, 1982: Plaintiff terminated by defendant. Finding of fact 4.
October 18, 1985: Plaintiff served defendant with a summons which stated that the cause of action was based on a breach of contract. Finding of fact 1.
January 16, 1986: Second summons and complaint were filed. This occurred within 90 days of service of the summons. Finding of fact 1.

Golden State moved to dismiss the action on the grounds that it was time barred by the 3-year statute of limitations because Nearing initially failed to serve a complaint with [819]*819the summons. The trial court held that Nearing's October 18, 1985, service of the summons alone was ineffective under Superior Court Civil Rules 3 and 4 to toll the statute of limitations. The trial court, therefore, granted Golden State's motion to dismiss.

The Court of Appeals reversed, holding that CR 3 and 4 did not supersede RCW 4.16.170 and that RCW 4.16.170 controlled. The court did not decide whether Nearing complied with the court rules concerning the commencement of actions, but only whether he complied with the statutory requirements for tolling the statute of limitations. Nearing v. Golden State Foods Corp., 52 Wn. App. 748, 764 P.2d 242 (1988). We affirm the Court of Appeals.

The issue is whether the statute of limitations is tolled by service of a summons upon the defendant when the summons is not served with an accompanying complaint. Golden State argues that service of a summons should not be the sole requirement for tolling the statute of limitations. Golden State contends this would allow attorneys to merely serve a form summons without informing themselves about the facts of the case and the impact of the law thereon. Golden State suggests that such a rule will permit attorneys to prepare and serve a summons without knowledge of the cause of action.

Golden State's theory is based on the fact that in 1978, the court rules were changed by the adoption of CR 4(d)(1). The rule states that the "summons and complaint shall be served together." CR 4(d)(1). See 90 Wn.2d 1143 (1978). Golden State contends that the definition of commencement of an action must control over the summons only rule in RCW 4.16.170 in accordance with CR 81(b).1 Golden State suggests that the court rule modified the statute so as to treat the tolling event as either the filing of the complaint or the service of the summons and complaint.

[820]*820Nearing argues that RCW 4.16.170 and CR 3 explicitly allow service of a summons alone in order to toll the statute of limitations, if the summons and complaint are filed within 90 days of service of the summons. We agree.

The statute of limitations for actions involving racial discrimination under RCW 49.60.180 is 3 years. Lewis v. Lockheed Shipbuilding & Constr. Co., 36 Wn. App. 607, 613, 676 P.2d 545 (1984). RCW 4.16.170 provides:

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.

Thus, an action is tentatively commenced by service of a summons or the filing of a complaint and the statute of limitations is tolled pending filing of the summons and complaint within 90 days from the date of service. Insofar as it is inconsistent, Matthies v. Knodel, 19 Wn. App. 1, 3, 573 P.2d 1332 (1977) is modified. See also Hansen v. Watson, 16 Wn. App. 891, 559 P.2d 1375 (1977). Either of these acts will toll the statute of limitations as long as the summons and complaint are filed within 90 days. RCW 4.16.170. Sterling v. County of Spokane, 31 Wn. App. 467, 471, 642 P.2d 1255 (1982).

The statutory provision which governs the tolling of the statute of limitations and the court rule governing the commencement of actions are reconcilable. 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 [821]*821or filing a complaint in order to commence a civil action. Whenever there is a conflict between a procedural statute and a court rule, the court's rulemaking power is supreme. Petrarca v. Halligan, 83 Wn.2d 773, 776, 522 P.2d 827 (1974). Apparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible. Emwright v. King Cy., 96 Wn.2d 538, 543,

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Cite This Page — Counsel Stack

Bluebook (online)
792 P.2d 500, 114 Wash. 2d 817, 1990 Wash. LEXIS 64, 57 Fair Empl. Prac. Cas. (BNA) 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nearing-v-golden-state-foods-corp-wash-1990.