Elliott v. Peterson
| Decision Date | 13 September 1979 |
| Docket Number | No. 45964,45964 |
| Citation | 599 P.2d 1282,92 Wn.2d 586 |
| Parties | Ralph D. ELLIOTT, Administrator of the Estate of Mary Ellen Elliott, Deceased, Respondent, v. C. Dirk PETERSON, D.D.S., and Jane Doe Peterson, his wife, and Crown Hill Dental Center, P.S., a professional service corporation, Petitioners. |
| Court | Washington Supreme Court |
Karr, Tuttle, Koch, Campbell, Mawer & Morrow, P.S., James R. Dickens, Seattle, for petitioners.
Geraghty & VanDerhoef, Kenneth D. VanDerhoef, Seattle, for respondent.
In this action, the plaintiff seeks damages for the death of his wife, allegedly resulting from negligence of the defendant dentists. The controversy was before this court earlier in Elliott v. Kundahl, 89 Wash.2d 639, 574 P.2d 732 (1978), where we held that the plaintiff's motion for voluntary nonsuit had been erroneously denied. It was further held in that case that the court had erred in granting the defendant's motion to dismiss with prejudice. The judgment was reversed.
Shortly after our decision in that case was filed, both parties presented orders to the trial court granting the plaintiff's motion for voluntary nonsuit, and both were signed by the court. Within a few days, this action was commenced, the complaint alleging essentially the same facts as those alleged in the former complaint. The defendants promptly moved for summary judgment, asserting the statute of limitations. That motion was denied, and this court granted discretionary review.
It appears that at the time of the plaintiff's original motion for voluntary nonsuit, a period of some 2 months remained before the expiration of the applicable statute of limitations. The period of limitations expired long before the appeal was decided. Thus when this court reversed the trial court's denial of the plaintiff's motion for voluntary nonsuit, he was left without a right of action, if the statute of limitations is controlling in these circumstances. Such a result would mean that a plaintiff, successfully challenging a lower court's denial of the right given him under CR 41(a), would be denied the fruits of his appeal in every case in which he intended to pursue his claim and the statute of limitations had run during the pendency of the appeal.
While the opinion of this court in Elliott v. Kundahl,supra, did not expressly order a new trial, this was its intent and import. This court ruled upon the admissibility of evidence of a covenant not to sue, a ruling which could be significant only in a new trial. Where this court reverses a judgment and makes no final disposition of the case, the usual procedure contemplated is a new trial. Rousseau v. Rosche, 158 Wash. 310, 290 P. 806 (1930); Richardson v. Carbon Hill Coal Co., 18 Wash. 368, 51 P. 402, 51 P. 1046 (1897). This is true when it is fairly apparent from the court's discussion of the case that the cause is remanded with that object in view. See State ex rel. Moore & Co. v. Superior Court, 97 Wash. 250, 166 P. 628 (1917); Rousseau v. Rosche, supra. Under our holding, then, the plaintiff was entitled to a new trial if he desired to pursue the same.
The right to a voluntary nonsuit is fixed at the time the motion is made. McKay v. McKay, 47 Wash.2d 301, 287 P.2d 330 (1955); Krause v. Borjessan, 55 Wash.2d 284, 347 P.2d 893 (1959). In order to accord to the plaintiff the full benefit of that right, it must be held that his right to file a new suit based on the same claim is also fixed as of that moment. An important aspect of that right is the period of time remaining before the expiration of the statute of limitations. Accordingly, when the right to a nonsuit is erroneously denied, and it is so held on appeal, a plaintiff is entitled to an equal period of time, after the remittitur, within which to file a new action. Otherwise, the right is but a delusion in all cases where the statute of limitations expires pending appeal.
This court, in Elliott v. Kundahl, supra, reversed the trial court's order denying the plaintiff's motion for voluntary nonsuit. The effect of this was to grant that motion; and the subsequent motions for nonsuit filed by both parties were superfluous, as were the lower court's orders granting these motions. These procedures did not disturb the right of the plaintiff to bring a new action within the period of time remaining before the expiration of the statute of limitations, when the original motion was made.
The defendants argue that it is contrary to the intent of the legislature, as expressed in the statutes which govern the limitation of actions, to allow the plaintiff a period of time after the appellate decision in which to file a new action. It is true that those statutes contain no express exception for a situation of this kind. RCW 4.16.240 provides that where an action is commenced within the time prescribed therefor and a judgment for the plaintiff is reversed on appeal, he shall have 1 year to commence a new action. 1 No provision is made for the case where a judgment for the defendant is reversed on appeal. It would seem apparent that the reason for this is that such a reversal almost invariably results in the entry of a judgment for the plaintiff or the granting of a new trial. In either case, an extension of the time in which to bring a new action is unnecessary.
While the legislature did not take cognizance of the peculiar problem arising where a plaintiff is erroneously denied the right to a voluntary nonsuit, judgment is entered for the defendant, and the statute of limitations runs pending the plaintiff's appeal, it is evident that it intended that a plaintiff should not be denied the fruits of his appeal because of the passing of the period of limitations. This view also finds support in RCW 4.16.230, 2 which provides for the tolling of the statute where the commencement of an action is stayed by injunction. A judgment of dismissal with prejudice is not technically an "injunction." Still, its effect is to prevent the filing of another suit upon the same claim, since such a suit would be vulnerable to a plea of res judicata.
Recognition of the plaintiff's right to further pursue his claim is implicit in our decision in Elliott v. Kundahl, supra. That right is not only necessitated in order to effectuate his right to a voluntary nonsuit but is in accord with the spirit, if not the letter, of the exceptions found in the statute of limitations.
We conclude that the trial court did not err in refusing to dismiss the action.
The order is affirmed and the cause is remanded for further proceedings.
I dissent from the court's decision in this case. In reaching its conclusion, the court has created a new exception to the statutes of limitation with no compelling reason to do so.
The facts of this case can be summarized as follows:
Mary Ellen Elliott died on March 27, 1973, when she developed complications from anaesthesia administered to her for dental work. The plaintiff, Ralph D. Elliott, as administrator of her estate, commenced a wrongful death action against Peterson and others under Cause No. 771287 in King County on September 27, 1973. Subsequently, Elliott settled with one of the co-defendants, Kundahl, for the amount of $125,000, and the claim against Kundahl was dismissed prior to trial. The action against Peterson proceeded to trial. On January 12, 1976, Elliott moved for a voluntary nonsuit without prejudice. In argument before this court, Elliott's counsel stated that his purpose for seeking a nonsuit was to bring the case again before a different trial judge, because the judge trying the initial case had made several rulings adverse to Elliott. The motion for a voluntary nonsuit was denied by the trial judge, and when plaintiff did not proceed further with his case Peterson's motion for an involuntary dismissal with prejudice was granted.
Appeal from those orders was taken to this court. On February 9, 1978, the court reversed several of the trial court's rulings. This court held that Elliott was improperly denied a voluntary nonsuit and that the trial court improperly granted Peterson's motion to dismiss. Elliott v. Kundahl, 89 Wash.2d 639, 574 P.2d 732 (1978).
After this court's decision in Elliott v. Kundahl, supra, Elliott returned to superior court and moved for a voluntary dismissal of the action. It is curious why Elliott again sought the voluntary nonsuit, since the case had been reassigned. On February 17, 1978, an order was entered by the superior court granting plaintiff's motion for a voluntary nonsuit without prejudice. On March 8, 1978, Elliott commenced a second action, King County Cause No. 842014, based on the same incident. By the time he commenced the second action, Elliott must have become aware that he had a problem regarding the statute of limitation because he inserted in his pleadings under the title "Limitations Stayed":
3.1 The statute of limitations on the commencement of this action has been stayed due to an appeal from Cause No. 771 287 which concerned the same torts and the Superior and Appellate Courts of Washington.
It is noteworthy that none of the courts involved in this action had issued any type of stay of the statute of limitation, nor was one requested by Elliott at any point in the procedure.
Peterson moved to dismiss the second action on the ground that the 3-year statute of limitation applicable to malpractice claims pursuant to RCW 4.16.080 had run in 1976 during the pendency of Elliott v. Kundahl, supra. The trial court denied Peterson's motion and discretionary review was granted by this court. By its decision today, this court has affirmed the trial court's denial of Peterson's motion to dismiss. I would reverse the trial court's action.
The legislature has clearly provided for certain exceptions to the limitations periods set forth in the chapter. One...
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State v. T.T.
... ... remanded with that object in view.'" State v ... Jones, 148 Wn.2d 719, 722, 62 P.3d 887 (2003) (quoting ... Elliot v. Peterson, 92 Wn.2d 586, 588, 599 P.2d 1282 ... (1979)). Division One of this court has held that when we ... remand "for further proceedings" or ... ...
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State v. T.T.
...the cause is remanded with that object in view.'" State v. Jones, 148 Wn.2d 719, 722, 62 P.3d 887 (2003) (quoting Elliot v. Peterson, 92 Wn.2d 586, 588, 599 P.2d 1282 (1979)). Division One of this court has held that when we remand "for further proceedings" or instruct a trial court to ente......
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State v. Jones
...is fairly apparent from the court's discussion of the case that the cause is remanded with that object in view." Elliott v. Peterson, 92 Wash.2d 586, 588, 599 P.2d 1282 (1979) (citations omitted). The Court of Appeals plainly stated in Jones's first appeal that it was reversing his convicti......
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Greenlaw v. Renn, 13647-3-II
...by the posture of the case at the time the motion is made, and the right to a dismissal is fixed at that point. Elliott v. Peterson, 92 Wash.2d 586, 588, 599 P.2d 1282 (1979). After a plaintiff rests his or her case, the right to a voluntary nonsuit, pursuant to CR 41(a)(1)(B), is no longer......