Appeal from Superior Court of King County. Docket No: 95-2-11488-1. Date filed: 12/20/95. Judge signing: Hon. James W. Bates Jr.
Authored by H. Joseph Coleman. Concurring: Mary K. Becker, Ann L. Ellington.
The opinion of the court was delivered by: Coleman
COLEMAN, J.-- In his suit against the City of Seattle, David Rubens filed an initial and then an amended complaint. Within ninety days of filing, Rubens served the City with a summons and a copy of the initial complaint rather than the amended complaint. We are asked to decide whether such service was sufficient to toll the statute of limitation. We hold that the service of a summons with a superseded complaint does not constitute valid service because it would mislead a defendant as to the true nature of the claims. Moreover, serving a superseded complaint does not constitute substantial compliance with the statute's objective because it does not provide the defendant with the requisite notice of the current claims alleged. We therefore affirm.
In 1990, Rubens applied to the City for a permit to develop property that he had recently purchased. In 1992, the City canceled his application, and Rubens sued. Excepting his inverse condemnation claim, which is subject to a ten-year statute of limitation, his claims are subject to a three-year statute of limitation. The three-year statute expired on May 8, 1995.
Rubens filed his original complaint on May 5, 1995, and an amended complaint on May 10, 1995. *fn1 On August 3, 1995, within ninety days of filing, Rubens served the City with a summons and a copy of the original complaint rather than the amended one. Rubens admits that the service of the original complaint was a mistake.
Two months later, Rubens filed a second amended complaint, which he incorrectly titled the "Amended Complaint." The City answered this complaint a few weeks later, asserting the statute of limitation amongst other affirmative defenses.
About a week after answering, the City moved to dismiss, arguing that service of a superseded complaint was insufficient process. Rubens responded on November 20, 1995, by serving the City with three separate summons and a copy of all three complaints--the original, the first amended, and the second amended. Rubens then claimed that since the City had not alleged that the statute of limitation had run in its motion to dismiss, his service on November 20, 1995, cured any defects in service. In its reply, the City argued that all claims except for inverse condemnation should be dismissed with prejudice because Rubens' failure to serve the City properly resulted in the expiration of the statute of limitation.
The lower court determined that because the filing of the amended complaint on May 10, 1995, superseded the original complaint of May 5, 1995, service of the original complaint on August 3, 1995, was insufficient process to toll the statute of limitation. The court concluded that all claims subject to the three-year statute of limitation were time barred and dismissed them with prejudice. The court dismissed the inverse condemnation claim without prejudice.
Rubens argues that the court erred in dismissing his claims because to toll the statute of limitation, he needed only to serve a summons within ninety days of filing his complaint. Thus, he claims that the service of a superseded complaint is irrelevant.
When reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. U.S. Life Credit Life Ins. Co. v. Williams, 129 Wash. 2d 565, 569, 919 P.2d 594 (1996). Summary judgment should be granted only when, after considering the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Williams, 129 Wash. 2d at 569.
Under CR 3, a civil action is commenced by service of the summons and a copy of the complaint or by filing a complaint. The rule also provides that an action is not deemed commenced for the purpose of tolling a statute of limitation except as provided by RCW 4.16.170. CR 3(a). That statute provides that for purposes of tolling a statute of limitation, an action is commenced when the complaint is filed or summons is served, whichever occurs first. RCW 4.16.170. If the action is commenced by filing the complaint, the plaintiff must serve the defendant within ninety days from the date of filing. RCW 4.16.170. If, in turn, the action is commenced by serving the summons, the plaintiff must file the summons and complaint within ninety days from the date of service. If this is not accomplished, the action is not deemed to have been commenced for purposes of tolling the statute of limitation. RCW 4.16.170.
Rubens relies on Nearing v. Golden State Foods Corp., 114 Wash. 2d 817, 820, 792 P.2d 500 (1990), to argue that when an action is commenced by filing a complaint, service of a summons alone is sufficient to toll the statute of limitation. In Nearing, the court recognized an apparent conflict between RCW 4.16.170 and CR 3 and 4. The rules state that a summons and complaint must be served together to commence an action. CR 3(a); CR 4(d)(1). By contrast, the statute states that for purposes of tolling the statute of limitation, the action is commenced when a complaint is filed or a summons is served, whichever occurs first. Thus, when an action is commenced by service, the statute does not require the plaintiff to ...