Grosse, C.j. Pekelis, J., and Pearson, J. Pro Tem., concur.
Rawland Taplett and Mary Taplett (Taplett) brought this action against Bhag Singh Khela and Nachhatter Kaur Khela (Khela) for contribution on partnership debts and recovery on a promissory note. Khela
counterclaimed for a partnership winding up and accounting. The trial court concluded that Taplett's claim was not barred by the statute of limitation, ordered Khela to pay Taplett $46,390 and awarded Taplett reasonable attorney fees. Khela appeals. We reverse.
In September of 1978, Khela, Taplett, and Jackie Don Prestridge and Carol Ann Prestridge (Prestridge) entered into an oral partnership agreement that was subsequently reduced to writing in February of 1979. The partners agreed to acquire and operate the Shasta Valley Inn in California. In an amendment to the partnership agreement dated July 20, 1979, Prestridge was removed as a partner. A foreclosure action was brought against the partnership real property and on July 21, 1980 Khela and Taplett agreed to allow the property to go back to the seller by forfeiture. Following this decision, the partners split the cash between them. Khela closed out the on-site operation and moved some partnership property back to Renton where it was stored in the home of the Khelas' son. Both parties had opportunities to inventory the property and neither did so. Neither party maintained adequate books or annual accountings, although the partnership agreement required it.
During the partnership, funds were borrowed from Rainier Bank and $150,000 was due in September 1980. The partners refinanced the loan to $100,000 after each party paid $25,000. Both parties signed a new note and Taplett posted security, but Khela did not. The partners each agreed to pay one half of the note in quarterly installments. Both parties paid through September 9, 1981. Subsequently Khela made three partial payments, the last on March 20, 1982.
Taplett brought an action on the note in 1982 which action was dismissed because Khela was not properly served. The current action commenced July 28, 1987. Khela asserted three defenses: accord and satisfaction, failure to join necessary parties, and action barred by statute of limitation. After a bench trial of 4 days, the trial court issued a
memorandum decision that determined the cause of action for an accounting accrued on the last payment by Khela to the third party bank (June 7, 1982). In findings of fact and conclusions of law the trial court confirmed its decision and concluded that Taplett's claim was not barred by the statute of limitation nor the doctrine of unclean hands. Further, the court concluded that Khela's demand for affirmative relief constituted a waiver of the statute of limitation defense. Finally, the court calculated an accounting of the partnership and determined that Khela paid $154,291.43 and Taplett $247,071.67 for a difference of $92,780.24, and ordered Khela to pay Taplett $46,390.12 with interest. Based on the partnership agreement, the trial court also awarded Taplett reasonable attorney fees of $18,500. Khela appeals.
The main issue presented in this case is whether Taplett's claims were barred by the statute of limitation for an accounting, RCW 25.04.430. Following the language of the uniform partnership act, the statute provides:
Accrual of actions. The right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.
Because the trial court concluded that the partnership dissolved on approximately July 21, 1980 (conclusion of law 23), RCW 25.04.430 and RCW 4.16.040*fn1 would bar the action since it was filed after July 21, 1986. The trial court erred in determining that the partners' activities during the winding up process tolled the statute of limitation.
No Washington case has interpreted RCW 25.04.430 on the issue presented here, although in Skok v. Snyder, 46 Wash. App. 836, 733 P.2d 547 (1987), the court assumed without deciding that the statute would preclude an action for an accounting if raised more than 6 years after the dissolution of the partnership.
[1-4] A statute that is clear and unambiguous is not open to judicial interpretation. Hines v. Data Line Sys., Inc., 114 Wash. 2d 127, 143, 787 P.2d 8 (1990). As Khela argues, the clear and unambiguous language of RCW 25.04.430 establishes that the action accrues at dissolution and not during or after the winding up period. The use of the term "shall" in the statute mandates that the action accrue at dissolution. See Nichols v. Snohomish Cy., 109 Wash. 2d 613, 619, 746 P.2d 1208 (1987). We are not at liberty to construe unambiguous statutes or add language we feel the Legislature omitted unintentionally. Bennett v. Hardy, 113 Wash. 2d 912, 926, 784 P.2d 1258 (1990). Further, it is clear that the Legislature was aware that it was choosing dissolution instead of the winding up process to begin accrual since dissolution is defined and ...