Superior Court County: King. Superior Court Cause No: 92-2-11379-1. Date filed in Superior Court: 10-25-93. Superior Court Judge Signing: J. Kathleen Learned.
Petition for Review Granted April 2, 1997,
Written by: Kennedy, A.c.j. Concurred by: Baker, C.j., Coleman, J.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- John Beal, who filed the instant wrongful death action in his capacity as the guardian ad item for the minor children of Melissa Fernandez, appeals the dismissal of the action, contending that the trial court erred in denying his CR 17(a) motion to amend the complaint so as to name Beal as plaintiff in his capacity as the personal representative of the estate of Melissa Fernandez. *fn1 After denying the motion to amend, the court granted the City's motion to dismiss the action under CR 12(b)(6) for failure to state a claim upon which relief may be granted based on Beal's failure to bring the action in the name of the statutory plaintiff. Because the record contains substantial evidence in support of the trial court's determination that the law suit was not brought by an improper party by reason of honest or understandable mistake, and indeed, shows conclusively that there was no mistake at all as to the proper statutory plaintiff, we affirm the trial court's rulings. We also conclude that the trial court did not err by denying Beal's motion for reconsideration. Accordingly, we do not reach the City's provisional cross-appeal seeking review of the trial court's denial of its motion for summary judgment of dismissal on grounds of lack of duty, lack of breach of duty, and lack of proximate cause.
On the afternoon of June 1, 1989, Melissa Fernandez went to the home of her estranged husband to collect some of her children's belongings. Fernandez, who had a domestic violence protection order, called 911 when she arrived and requested stand-by police assistance. The 911 operator told Fernandez, "We'll get the police over there for you". Clerk's Papers at 282. Within the next 20 minutes, while Fernandez was sitting in the cab of a truck in front of the residence waiting for a police officer to arrive, her husband approached, and shot her dead. He then shot and killed himself. The 911 tape containing the report of the shootings was made 22 minutes after the tape containing Fernandez's call for stand-by assistance. By the time of the shootings, no police officer had as yet been dispatched in response to the call for stand-by assistance.
On July 19, 1989, John Beal was appointed guardian ad item for Melissa Fernandez's three minor children. Beal obtained court approval to retain attorney Stephen G. Smith on a contingency fee basis on that same day. Smith obtained an order compelling release of 911 tapes and other investigative materials on July 24, 1989. Smith contends in a declaration contained in the record that it was not until October 24, 1991, that he finally received the court-ordered production. Some 7 months later, 3 years to the day from the day Fernandez was killed, a wrongful death action was instituted against the City of Seattle and others. The complaint alleged that the City had been negligent in not promptly dispatching a police officer to provide Fernandez with stand-by assistance. The complaint's caption identified the plaintiffs as "John Beal as Guardian ad Litem for Michael Martinez, Mirella Martinez, and Marcos Martinez[;] Shirley Bucher-Broderson, and Mark Bucher." Clerk's Papers at 242. However, paragraph 1.1 of the complaint states: "John Beal is an adult person, duly appointed to serve as Guardian ad Litem for the minor children, Michael Martinez, Mirella Martinez, and Marcos Martinez, of the decedent Melissa Fernandez and Personal Representative of the Estate of Melissa Fernandez." Clerk's Papers at 242 (emphasis added). At the time the complaint was filed, Beal had not been appointed personal representative of the Fernandez estate. The City was served with a summons and the complaint on August 31, 1992, the last possible day for service allowed by RCW 4.16.170.
On September 3, 1992, Beal was appointed personal representative of the estate. That same day, plaintiffs moved ex parte under CR 15(a) to amend the caption and complaint to name Beal as a plaintiff in his capacity as personal representative of the estate of Melissa Fernandez. In a declaration in support of the motion, Smith stated that " subsequent to filing herein counsel for Plaintiff recognized the need for the complaint to be brought in the name of the Estate[.]" Clerk's Papers at 249 (emphasis added). The motion was granted and an ex parte order was entered authorizing amendment of the complaint to include John Beal as personal representative for the estate of Melissa Fernandez as a party plaintiff. An amended complaint naming Beal as the duly appointed personal representative of the estate was filed the same day. The amended complaint was served on the City on September 21, 1992. On October 15, 1992, the City answered the complaint, generally denying the allegations raised in paragraph 1.1 of the complaint and raising eight affirmative defenses, but not including any challenge to Beal's capacity as a party plaintiff.
In May 1993, the City moved for summary judgment of dismissal, arguing the absence of duty, breach, and legal and proximate causation. Judge Nancy Holman heard and denied the motion, finding that issues of fact existed. The City's motion for reconsideration was denied.
In August 1993, the City moved to vacate the amended complaint and to dismiss the original complaint. In response to this motion, Beal conceded that it had been improper to move to amend ex parte under CR 15(a), and that the amended complaint should be vacated. Beal counter-moved to amend the complaint pursuant to CR 17(a), however, arguing that he was entitled, as the real party in interest (as personal representative of the estate), to a reasonable amount of time to ratify his prior actions which were taken as guardian ad litem. In support of this motion, attorney Smith filed a declaration in which he stated that he had realized before filing the suit that the action could only be brought by the personal representative of the estate, but that he had not had sufficient time to prepare and file the necessary paper work on the last day of the running of the statute of limitations. The City opposed this motion to amend, arguing that the facts did not support a finding of an honest or understandable mistake justifying relief under CR 17(a).
The motion to amend was heard on September 10 and 24, 1993, before Judge Kathleen Learned. The court determined that there was no mistake in this case, honest, understandable or otherwise:
It may be a very onerous and harsh result in this case; however, it is clear from the record that counsel and the plaintiff were aware at the time of filing this action that it was necessary that the personal representative bring the case on behalf of the estate. Counsel admits that that is why the body of the complaint does in fact relate Mr. Beal as the personal representative.
The only thing that's been presented to the Court by way of a mistake or excuse is the assertion that there was no time to have Mr. Beal appointed personal representative prior to the filing of the complaint prior to the filing [sic] of the statute of limitations. I see no reason in the record, however, why that should have been the case, why there was no time to do it. There's no indication that it is a lengthy process, other than simply getting the papers together and presenting them to the ex parte department, as was done subsequently in September. I will note that was three months later that it was finally followed-up on. This does not fall into the category of an honest mistake or an understandable mistake by analogy to any of the circumstances raised in the cases. Unfortunate as that may be for the plaintiff, I am constrained by the rule and by the decisions in this case to deny the motion.
Report of Proceedings, September 24, 1993, at 11-12. After the plaintiffs' attorney conceded that the children did not have an independent cause of action, the Judge granted the City's CR 12(b)(6) motion to dismiss based upon the failure to bring the action in the name of the personal representative and the court's denial of the motion to amend the complaint ...