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Handy v. State

March 17, 1997

MICHAEL THERON HANDY, APPELLANT,
v.
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, AND OFFICE OF THE ATTORNEY GENERAL, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 94-2-04555-5. Date filed: 07/28/95. Judge signing: Hon. Charles V. Johnson.

Petition for Review Denied October 7, 1997,

PER CURIAM. Michael Handy appeals from the trial court's ruling dismissing his claims against the State of Washington, Department of Social and Health Services, for alleged malicious attempts to collect a child support obligation. We agree with the trial court that Handy's claims for conduct occurring more than 3 years before he filed this lawsuit were barred by the statute of limitation. The trial court also correctly dismissed Handy's claim for "slander of an undeserved poor credit history" under CR 12(b)(6). The State has failed, however, to establish that Handy can prove no set of facts that would entitle him to relief for his claim of outrage. Accordingly, we remand for further proceedings on this issue.

On February 22, 1994, Handy filed a Complaint for Damages and Tort of Outrage against the State of Washington, alleging that the Office of Support Enforcement (OSE) had undertaken malicious and tortious collection actions against him from February 15, 1990, through July 29, 1991. For purposes of this appeal, we assume that the following factual allegations in Handy's complaint are true.

Handy was the subject of 3 separate child support orders, including a temporary support order entered in King County Superior Court on December 11, 1987, and a dissolution order entered in Superior Court on October 18, 1989. He alleges that he followed the two support orders entered in Superior Court "in an adamant and dutiful manner." The State's attempts to collect an obligation arising under the third support order, an administrative decision entered by the OSE on December 28, 1987, form the basis for Handy's claims in this action.

On February 15, 1990, the OSE issued wage assignment orders to Handy's two employers, causing him "severe financial difficulty." Although his motion to quash the orders was unsuccessful, Handy prevailed in his appeal of the administrative ruling, and the Superior Court entered an order invalidating the administrative decision on September 11, 1990.

Despite the Superior Court order, the State continued its collection attempts, including a property lien and "tax refund intercept order" in October 1990. Handy maintains that these unlawful collection efforts continued until July 29, 1991, the date on which the Court of Appeals reversed the Superior Court ruling and reinstated the administrative OSE order. At this point, according to Handy, the OSE set up a payment plan of $90 per month to pay the accumulated debt from the administrative ruling, which was approximately $4,000.

Handy asserts that the State's malicious collection activities from February 1990 through July 1991 were undertaken for the purpose of destroying him "financially, emotionally, and slandering him with an undeserved poor credit history." As a result of the State's actions, Handy alleges that he lost his house in a foreclosure sale during March 1992. He seeks damages of $50,000 for the lost equity in his house, damages for the "slander of an undeserved poor credit history," and damages for "emotional suffering due to the severity of the outrage put upon him" by the OSE.

On July 17, 1995, the State moved to dismiss, arguing that Handy's claims for any conduct occurring more than 3 years before the filing of his lawsuit, i.e., before February 22, 1991, were barred by the statute of limitation. The State also argued that Handy's complaint failed to state a claim upon which relief could be based for any conduct occurring after February 22, 1991. CR 12(b)(6). On July 28, 1995, the trial court granted the motion to dismiss on the grounds urged by the State.

As a preliminary matter, the State has moved to strike the Supplemental Clerk's Papers designated by Handy, which include Handy's affidavit detailing the alleged tortious collection actions and some 170 pages of supporting documentation. The State argues that these documents were not considered by the trial court when ruling on the CR 12(b)(6) motion and should therefore not be considered on appeal.

When ruling on a CR 12(b)(6) motion, the trial court considers only the pleadings and any "hypothetical facts" conceivably raised by the complaint. Bravo v. Dolsen Companies, 125 Wash. 2d 745, 760, 888 P.2d 147 (1995). This court reviews the CR 12(b)(6) ruling de novo and solely on the basis of the pleadings. If the trial court considers matters outside the pleadings, the motion must be treated as one for summary judgment and all parties given a reasonable opportunity to submit materials as permitted by CR 56. CR 12(b). Because nothing in the record indicates that the trial court in this case considered the materials in conjunction with its CR 12(b)(6) ruling, they are not pertinent to Handy's appeal. Accordingly, the State's motion to strike is granted.

On appeal, Handy argues that the trial court erred in ruling that all claims based on acts occurring before February 22, 1991, i.e., more than three years before Handy filed suit, were barred by the 3-year statute of limitation. See RCW 4.16.080(2). Generally, a cause of action accrues at the time the act or omission occurs. In re Estates of Hibbard, 118 Wash. 2d 737, 744, 826 P.2d 690 (1992). Under the "discovery rule," however, the cause of action accrues at the time the plaintiff knew, or in the exercise of diligence should have known, all of the essential elements of the cause of action. Hibbard, 118 Wash. 2d at 744.

Handy argues that the statute of limitation did not begin to run on his claims until he learned of all of the damages caused by the State's misconduct and that his cause of action therefore did not accrue until March 13, 1992, when he lost his home in a foreclosure sale as a result of the State's actions. None of the authority that he cites supports this contention.

Handy's complaint establishes that he was aware of all of the factual elements of his claims at the time each allegedly improper collection action occurred. Under these circumstances, the discovery rule does not toll the statute of limitation, even if the plaintiff is not aware of the existence of a legal cause of action. See Gevaart v. Metco Constr., Inc., 111 Wash. 2d 499, 502, 760 P.2d 348 (1988). Nor does the discovery rule require that Handy be aware of the full extent of his damages; knowledge of some actual and appreciable damage is sufficient. Steele v. Organon, Inc., 43 Wash. App. 230, 235, 716 P.2d 920, review denied, 106 Wash. 2d 1008 (1986). The trial court did not err in ruling that Handy's claims for actions occurring prior to February 22, 1991, were barred by the statute of limitation.

Handy next argues that the trial court erred in dismissing Handy's claims under CR 12(b)(6) as to all conduct occurring after February 22, 1991. The trial court's ruling on a CR 12(b)(6) motion is a question of law and is reviewed de novo. Fondren v. Klickitat Cy., 79 Wash. App. 850, 854, 905 P.2d 928 (1995). The motion must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief." Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wash. 2d 959, 961, 577 P.2d 580 (1978). A CR 12(b)(6) motion should be granted "only sparingly and with care"; the motion must be denied if the plaintiff can assert "any hypothetical factual scenario that ...


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