Doscher v. State

Decision Date26 April 2011
Docket Number39776-5-II
CourtWashington Court of Appeals


Quinn-Brintnall, J.

After Christian Doscher filed a complaint against the State of Washington and Thurston County, alleging $33 million in damages because Washington State Patrol (WSP) records incorrectly stated that he had been convicted of a felony rather than a misdemeanor, the trial court granted the defendants' motions for summary judgment. Doscher appeals, arguing that the trial court erred in finding his claims barred by the applicable statutes of limitations. Because the statutes of limitation ran before Doscher filed his claim, we affirm.


On December 2, 1988, Thurston County charged Doscher with the felony offense of first degree possession of stolen property. On January 24, 1990, an amended information reduced the charge to third degree possession of stolen property, a misdemeanor. In exchange for the State's agreement to recommend a deferred sentence and credit for time served Doscher pleaded guilty to the amended charge. The trial court sentenced him in accordance with the State's recommendation. After Doscher complied with the terms of his sentence, the court entered an order of dismissal on April 27, 1990.

Sometime in 1990, Doscher learned that WSP records indicated that he had pleaded guilty to second degree possession of stolen property, a felony. Doscher made several unsuccessful attempts to fix the error that year.

Eighteen years later, apparently after Doscher initiated the statutory process for correcting his criminal history records, Thurston County sent the WSP an order indicating that his 1990 conviction was for the misdemeanor offense of third degree possession of stolen property. After the WSP received the order on July 15, 2008, it corrected its records accordingly. In 2009, Doscher sued the State and Thurston County in tort alleging $33 million in damages as a result of the "false felony" noted in his criminal history for 18 years.

All parties moved for summary judgment. The trial court granted the State's and the County's motions, ruling that Doscher's claims were barred by the applicable statutes of limitations and that the State and County were entitled to dismissal as a matter of law.

Summary Judgment
A. Standard of Review

When reviewing a summary judgment order, we engage in the same inquiry as the trial court. Cummins v. Lewis County 156 Wn.2d 844, 852, 133 P.3d 458 (2006). We consider the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 198, 943 P.2d 286 (1997). Summary judgment can be granted only if the pleadings, affidavits, depositions, and admissions on file show the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Marshall v. Bally's Pacwest, Inc., 94 Wn.App. 372, 377, 972 P.2d 475 (1999). Once the moving party demonstrates the absence of a genuine issue of material fact the burden shifts to the nonmoving party to produce evidence sufficient to support a jury verdict in its favor. Hash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988). The nonmoving party's burden is not met by responding with conclusory allegations, speculative statements, or argumentative assertions. Pagnotta v. Beall Trailers of Oregon, Inc., 99 Wn.App. 28, 36, 991 P.2d 728 (2000); see also Roger Crane & Assoc., Inc. v. Felice, 74 Wn.App. 769, 779, 875 P.2d 705 (1994) (bare allegations do not raise genuine issue of material fact). A failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).

B. Statute of Limitations

The State and County successfully moved for summary judgment on the ground that Doscher's claims for defamation, invasion of privacy, outrage, fraud, and negligence were barred by the applicable statutes of limitations.[1]

A two-year statute of limitations governs claims for defamation and invasion of privacy. RCW 4.16.100; Albright v. State, 65 Wn.App. 763, 769 n.3, 829 P.2d 1114 (1992) (defamation); Eastwood v. Cascade Broad. Co., 106 Wn.2d 466, 474, 722 P.2d 1295 (1986) (invasion of privacy). The three-year limitations period governs Doscher's remaining claims of outrage, fraud, and negligence. RCW 4.16.080(2); Cox v. Oasis Physical Therapy, PLLC, 153 Wn.App. 176, 192, 222 P.3d 119 (2009) (outrage); In re Marriage of Angelo, 142 Wn.App. 622, 646 n.22, 175 P.3d 1096 (fraud), review denied, 164 Wn.2d 1017 (2008); Clare v. Saberhagen Holdings, Inc., 129 Wn.App. 599, 602, 123 P.3d 465 (negligence), review denied, 155 Wn.2d 1012 (2005).

The purpose of such limitation periods is to protect the defendant and the courts from litigation of stale claims where plaintiffs have slept on their rights and evidence may have been lost. Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 813, 818 P.2d 1362 (1991). A party must exercise reasonable diligence in pursuing a legal claim and, if such diligence is not exercised in a timely manner, the cause of action will be barred by the statute of limitations. Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 772, 733 P.2d 530 (1987).

A limitation period begins to run when the plaintiff's cause of action accrues. Crisman v. Crisman, 85 Wn.App. 15, 20, 931 P.2d 163, review denied, 132 Wn.2d 1008 (1997). Generally, this occurs when the plaintiff suffers actual injury or damage and has the right to apply to a court for relief. Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 219, 543 P.2d 338 (1975); Crisman, 85 Wn.App. at 20.

The State and County maintain that Doscher knew of his injury and the right to seek relief in 1990. When the County asked Doscher to explain the actions he took to fix the error in his criminal records, Doscher responded as follows:

After first hearing about this in 1990, I contacted the Thurston Court clerk, who acknowledged that SCOMIS incorrectly showed a felony, but she didn't know how to answer the question, told me this [was] not correctable by a Court Clerk, and refused to discuss possible solutions, fearing she'd be giving legal advice.
I then went to Washington State Patrol, also in 1990 and told them to correct this error. They said the charging document shows felony, they cannot do anything about it, and refused to give more advice via fear it would be legal advice.
I then consulted my original public defender William Kopp, also in 1990, and he said I was reporting a civil rights violation, and declined to advise on the grounds that this was not the area of law he practiced.
I then inquired of Rodney Franzen in 1990, the original deputy prosecutor on this case, and he said he could not force WSP to change their records, and declined further advice due to the clear conflict of interest.
I then went to Edward Holms, also in 1990, to inquire how to fix this error, and he said the same thing as Franzen: he had no legal authority to change information in Washington State Patrol records.
I then went to private Attorney William W. Messer, in 1991, to inquire about this, and he was unable to supply a solution, except to say that I should keep trying. I hired him later in 1997 to file my chapter 13 bankruptcy in Tacoma. He is now deceased.
I then inquired of an Olympia-based attorney in 1990, whose name I cannot recall, who said the same as Messer.
I made various future attempts through the years to fix this error, with the Thurston County Court clerk giving the same answer they gave in 1990 and with WSP following suit.

Clerk's Papers at 168.

It was not until 2008, however, that Doscher availed himself of the statutory procedure for correcting the inaccurate criminal history reflected in the WSP's records. See RCW 10.97.080. The WSP's Identification and Criminal History Section serves as the state repository for criminal history information. RCW 10.97.045; RCW 43.43.745. The Criminal Records Privacy Act allows for the inspection of criminal history records and for written challenges to the accuracy of those records. RCW 10.97.080; WAC 446-20-120. If the WSP refuses any such challenge, it must inform the person of the reasons for its refusal as well as the procedures for reviewing that refusal. State v. Breazeale, 144 Wn.2d 829, 843, 31 P.3d 1155 (2001) (citing WAC 446-20-140). A person may appeal the WSP's refusal to correct inaccurate information to the superior court for a de novo hearing. Breazale, 144 Wn.2d at 843 (citing RCW 43.43.730).

Doscher could have employed these procedures in 1990, but he did not do so until 2008, and he did not file his tort action until 2009. Doscher alleges in his amended complaint that on or about February 23, 1990, a Thurston County clerk sent a falsified court order to the WSP and he adds that on or about April 27, 1990, a Thurston County clerk informed the WSP that his 1990 conviction was not only a misdemeanor but had been dismissed. Thus, according to Doscher's own allegations, his injury occurred in 1990. As a result, his actions for defamation and invasion of privacy were due by April 27, 1992, and his actions for outrage, fraud, and negligence were due by April 27, 1993. RCW 4.16.100; RCW 4.16.080(2).

Doscher argues, however, that the discovery rule tolls the applicable limitation periods. See Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992) (discovery rule postpones running of statute of limitations until plaintiff should have discovered basis for cause of action, but action accrues when plaintiff knows or should know the relevant facts, regardless of...

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