Beal for Martinez v. City of Seattle
| Decision Date | 02 April 1998 |
| Docket Number | J,T,No. 1,No. 3,No. 2,No. 64848-4,1,2,3,64848-4 |
| Citation | 954 P.2d 237,134 Wn.2d 769 |
| Parties | John BEAL, as guardian ad litem for Michael MARTINEZ, Mirella Martinez, and Marcos Martinez, Petitioner, Shirley Bucher-Broderson and Mark Bucher, Plaintiffs, v. The CITY OF SEATTLE, John Doeohn Doeohn Doehe Seattle Police Department, Responents. |
| Court | Washington Supreme Court |
This wrongful death action, originally filed by petitioner as guardian ad litem for the minor children of the decedent, was dismissed by the trial court because it was not brought by the personal representative of the decedent's estate as required by law. The Court of Appeals affirmed the dismissal. Petitioner, who was appointed personal representative of the estate after the statute of limitations expired, contends the trial court should have permitted him to amend the complaint to name the personal representative as the real party in interest, with relation back of the amendment, thus allowing him to maintain the action. We agree that where the only change is a change in the representative capacity in which suit is brought, and there is no prejudice to the defendant, such an amendment is permitted by CR 15(c) and 17(a) and, accordingly, reverse.
FACTS
On June 1, 1989, Melissa Fernandez was killed by her estranged husband, Fernando, when she went to his apartment to get some of her family's belongings. At the time, Ms. Fernandez had a protective order against her husband. When she arrived at the apartment building, Melissa Fernandez was accompanied by her mother and brother. She went to a neighbor's apartment, from which they called 911. During the call they told the operator that Ms. Fernandez's husband was next door, and that he would not let her get her property out of the apartment. The operator asked if Ms. Fernandez had a court order authorizing her to take the property. She said no, and added that her husband beat her up the previous Sunday, went to jail, and was out on bail. She said he had been harassing her and threatening her, and she had been told in order not to break the no contact order she needed "a civil standby" to come out. CP at 117. Ms. Fernandez told the operator that she had heard Fernando had been seen with a gun, though she did not know for sure if he had one. She gave the operator Fernando's name and description when asked. She also About 20 minutes later, Fernando approached the truck in which she was waiting and shot and killed Ms. Fernandez and then himself. By the time of the shootings, no police officer had been dispatched in response to the call for stand-by assistance.
said that Fernando had taken her welfare check from the mailbox that day. The operator told her that "we're going to send somebody there" and "[w]e'll get the police over there for you okay?" CP at 119. Ms. Fernandez said she would wait outside in front with her mom
On July 19, 1989, attorney Stephen Smith obtained an order appointing John Beal guardian ad litem for Ms. Fernandez's three minor children. The order authorized Beal to enter a contingency fee agreement with Smith to pursue the children's claims for personal injuries. In July, Smith obtained an order compelling release of 911 tapes and other materials, but declared he did not receive the court-ordered production until October 24, 1991. In August 1990, Smith filed a notice of claim with the City of Seattle on behalf of the children.
On June 1, 1992, exactly three years after Ms. Fernandez's death, he filed a wrongful death action against the City, naming her mother, brother, and Beal, as guardian ad litem of the children, as the plaintiffs, and claiming the City was negligent in not promptly dispatching a police officer to provide Ms. Fernandez with stand-by assistance. The complaint alleges that Beal was the personal representative of the estate of Ms. Fernandez.
At the time the complaint was filed, however, Beal had not been appointed personal representative. On September 3, 1992, Beal was appointed personal representative of the estate. The same day, Smith moved ex parte under CR 15(a) to amend the complaint to name Beal as a plaintiff in his capacity as personal representative. Smith declared that "[s]ubsequent to filing herein counsel for Plaintiff recognized the need for the complaint to be brought in the name of the Estate...." CP at 249. The motion was granted and an ex parte order entered authorizing amendment of In May 1993, the City moved for summary judgment of dismissal, arguing that as a matter of law it was not liable. The motion was denied.
the complaint. Smith filed an amended complaint the same day. The City answered the complaint in [954 P.2d 240] October 1992, but did not challenge Beal's capacity as a plaintiff.
In August 1993, the City moved to vacate and dismiss the amended complaint. Beal conceded that it had been improper to move to amend ex parte under CR 15(a) and agreed the amended complaint should be vacated. He then moved to amend the complaint pursuant to CR 17(a), arguing that he was entitled as the real party in interest to have a reasonable period of time in which to ratify his prior actions taken as guardian ad litem to commence the action. Attorney Smith filed a declaration stating that he knew before the complaint was filed that the action could be brought only by the personal representative of the estate and knew that Beal had not been appointed personal representative, but he had not had time to prepare and file the necessary paperwork to have Beal appointed as personal representative before the statute of limitations ran on the wrongful death action. 1 This explanation contradicted his earlier declaration. In his briefing to this court, Smith acknowledges he knew before the complaint was filed of the need to name the personal representative.
The trial court denied the motion, reasoning that amendment was improper because there had been no honest or understandable mistake made in failing to name the personal representative of the estate as plaintiff. The court thereafter granted the City's motion for dismissal under CR 12(b)(6).
Beal appealed, arguing his motion to amend the complaint should have been granted and the amendment Beal's petition for review was granted. A motion by the City to strike Beal's brief as overlong was denied by this court.
should have related back to the time of filing the original complaint; thus, dismissal of the action was improper. The City cross-appealed the denial of its motion for summary judgment on the liability issue. The Court of Appeals held the trial court properly denied the amendment and affirmed dismissal of the action. The court did not reach the issue raised by the City's cross-appeal. Beal v. Seattle, 83 Wash.App. 217, 920 P.2d 1235 (1996), review granted, 131 Wash.2d 1014, 936 P.2d 416 (1997).
ANALYSIS
Motion to amend the complaint to name personal representative
A wrongful death action must be brought by the personal representative of the decedent's estate and cannot be maintained by the decedent's children or other survivors. RCW 4.20.020; Benton v. Associated Indem. Corp., 195 Wash. 446, 449, 81 P.2d 507 (1938). Here, Beal was appointed as guardian ad litem for Melissa Fernandez's children within two months of her death on June 1, 1989, and was authorized to retain attorney Smith to maintain a wrongful death action. The complaint in the action was filed three years to the day after Fernandez's death, the last day of the three year statute of limitations period. See RCW 4.16.080. However, when the complaint was filed, neither Beal nor anyone else had been appointed personal representative of the estate of the decedent. Thus, the action was not brought by the personal representative of the decedent's estate as required. Although the complaint did describe Beal as the personal representative, attorney Smith knew when the complaint was filed that Beal had not been appointed as personal representative and knew that the action had to be brought by the personal representative.
Although petitioner agrees that he was improperly named as a plaintiff by his ex parte CR 15(a) motion, he contends the trial court should have granted his motion to amend the complaint under CR 17(a). 2
CR 17(a) provides that every action shall be brought in the name of the real party in interest and states:
No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
Where a state rule parallels a federal rule, analysis of the federal rule may be looked to for guidance, though such analysis will be followed only if the reasoning is found to be persuasive. American Mobile Homes of Wash., Inc. v. Seattle-First Nat'l Bank, 115 Wash.2d 307, 313, 796 P.2d 1276 (1990). CR 17(a) is identical to Fed.R.Civ.P. 17(a). The last sentence (with the relation back provision) was added to the federal rule by amendment in 1966. The Advisory Committee Note to the amendment states that the sentence was added
in the interests of justice.... [T]he modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.
3A James Wm. Moore et al., Moore's Federal Practice § 17.01 (2d ed. 1996).
The Court of Appeals in this case also recognized a second purpose of the rule: to expedite litigation by not permitting technical or narrow...
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