English v. Buss
| Decision Date | 06 June 2017 |
| Docket Number | No. 50031-1-II,50031-1-II |
| Court | Washington Court of Appeals |
| Parties | CHRISTOPHER ENGLISH, an individual, Appellant, v. DENNIS ALVIN BUSS, individually, Respondent, STATE OF WASHINGTON, Department of Corrections, STATE OF WASHINGTON, Department of Social and Health Services, Defendants. |
JOHANSON, P.J. — Christopher English filed a motion to amend a negligence complaint to add Dennis Buss as a defendant. The existing defendants, Department of Social and Health Services (DSHS) and Department of Corrections (DOC), did not oppose the amendment. Superior Court Judge Vicki Hogan granted the unopposed motion allowing the amendment and ruled that the amended complaint related back to the original complaint. This relation-back ruling defeated Buss's potential statute of limitations defense. After Buss was served notice of the lawsuit, he filed a CR 60 motion for relief from the relation-back order and requested summary judgment based on the statute of limitations. Superior Court Judge Edmund Murphy struck the relation-back ruling and granted summary judgment with respect to English's claim against Buss on statute of limitations grounds.
English appeals Judge Murphy's order vacating Judge Hogan's relation-back ruling and Judge Murphy's summary judgment dismissal of English's claims against Buss. English argues that (1) Judge Murphy violated Pierce County Local Rule (PCLR) 7(c)(5) when he reviewed Judge Hogan's relation-back order and (2) Judge Murphy improperly reviewed the CR 15(c) relation-back ruling under a CR 60 motion for relief. English also argues that (3) even if Judge Murphy could have reviewed the relation-back order, he erred when he concluded that English did not meet the relation-back requirements and granted summary judgment.
We hold that (1) English did not preserve the PCLR 7(c)(5) issue and (2) to the extent Judge Murphy relied on CR 60, he erred when he reviewed the CR 15(c) relation-back ruling because such interlocutory orders are not reviewable under CR 60. However, Judge Murphy had the authority to address a due process violation and therefore properly considered Buss's motion for relief. Finally, (3) Judge Murphy properly found that English did not meet the relation-back requirements and properly granted summary judgment. We affirm.
In 2011, Buss, a DSHS employee, directed four DOC inmates, including English, to help him dismantle a travel trailer that was given to him for his personal use. Buss did not have DSHS approval to use DOC inmates for his private purposes. On June 8, while breaking down the trailer, English was seriously injured.
From June 2011 and throughout 2012, DSHS and the Washington State Executive Ethics Board investigated this incident. DSHS concluded that Buss demonstrated significant lapses in judgment and acted negligently when he directed the inmates to perform work for his individual benefit and when he did not ensure they used proper safety equipment. DSHS attempted to terminate Buss, but eventually allowed him to resign. The Ethics Board concluded that Buss violated Washington statutory prohibitions regarding conflicts of interests, securing special privileges from his public service employment, and using state resources for personal benefit.
On June 3, 2014, English filed a complaint alleging negligence related to the June 8, 2011 incident. The complaint designated DSHS and DOC as the defendants under the "Parties and Jurisdiction" section. English served notice of the complaint on DSHS and DOC. In this same section, the complaint stated, "DENNIS ALVIN BUSS ('DSHS Supervisor Buss'), was an employee of the STATE OF WASHINGTON Department of Social and Health Services acting within the course and scope of his employment at all relevant times herein." 1 Clerk's Papers (CP) at 2. But the complaint did not name Buss as a defendant in his individual capacity, although the complaint referred to Buss's actions leading to English's injury throughout the complaint. Buss was not named in the caption of the complaint. English did not serve Buss with notice of the complaint at this time.
DSHS and DOC filed an answer, admitted Buss was a former DSHS employee, denied that Buss had acted within the scope of employment during the June 8 incident, and referred to Buss as a "nonparty." For 15 months, English, DSHS, and DOC engaged in discovery. Buss did notparticipate in the discovery proceedings. On September 18, 2015, DSHS and DOC filed a motion for summary judgment in which they claimed Title 51 RCW immunity.
On September 24, 10 weeks before trial, English filed a motion to amend his complaint. English asked to bring additional claims against DSHS and DOC and also requested to add Buss in his individual capacity as a defendant in order to bring claims "that will not be subject to Title 51 immunity." 1 CP at 45.
English requested under CR 15(c) that the amendment relate back to the original complaint filing date. English argued that Buss would not be prejudiced if added because "[Buss] will most likely be defended by the attorney general's office." 1 CP at 51. English further contended that the complaint related back because Buss, DSHS, and DOC shared a community of interest and because the amendment merely represented a change in Buss's capacity when he was already named in the original complaint's parties section. Neither DSHS, DOC, nor English served Buss with notice of the motion to amend the complaint.
DSHS and DOC did not oppose the motion. On October 2, Judge Hogan granted the motion to amend without a hearing. The order stated, "[T]hat the Amendments relate back to the original filing of this case under [CR] 15(c)." 1 CP at 147.
English filed the amended complaint and served Buss with the summons and complaint on October 13. Trial was set for December 1. An attorney appeared for Buss on October 23. On November 18, he filed a motion to dismiss, or in the alternative, to continue the trial date and reopen discovery. In the motion, Buss argued that English's amended complaint ran afoul of thestatute of limitations because English could not meet the requirements under CR 15(c) for the amended complaint against Buss to relate back to English's original complaint.
Also on November 18, DSHS and DOC submitted a notice of settlement that also stated that Buss remained a defendant. The superior court entered a stipulated judgment against DSHS and DOC. On December 1, English and Buss stipulated to an order to continue the trial date to May 1, 2016. The new case schedule provided that discovery would end February 29.
In January, Buss filed a CR 60 motion for relief from Judge Hogan's relation-back order granting English's motion to amend the complaint. In his motion, Buss sought summary judgment dismissal of the claim against him, raised a statute of limitations defense, and sought relief under CR 60(b)(1), (4), and (11). The superior court transferred the motion and the case to Judge Murphy as a matter of normal case management.
Judge Murphy heard argument on Buss's motion. Buss argued that Judge Hogan improperly granted the relation-back motion because the motion was unopposed, which deprived the superior court of the information that English could not meet the elements of CR 15(c). Buss admitted that he could not find case law in which a relation-back order was considered under a CR 60 motion for relief. But he argued that he was otherwise without a civil remedy to object to being added as a party because he could not bring a reconsideration motion because he was served outside the 10-day window to bring such a motion. Buss further argued that Judge Hogan should not have ruled on a relation-back motion before he could be heard on that matter because it effectively eliminated his meritorious statute of limitations defense.
English argued that Buss's motion should be denied because a CR 60 motion is not the proper procedure to reconsider a relation-back ruling. English did not argue that consideration of the relation-back ruling violated PCLR 7(c)(5).1 Without offering legal authority in support, English further argued that it was a standard matter of course to bring a motion to amend with a request that it relate back, even without the party being added present when the motion is argued. And he argued that Buss must wait for an appeal to address the relation-back issue. English further noted that he agreed to a six-month continuance of the trial requested by Buss's attorney and sent over all discovery and pleadings in order to alleviate prejudice.
Judge Murphy noted that the parties did not provide authority that clarified whether a party could challenge a relation-back ruling under CR 60. Judge Murphy concluded that this was "[f]undamentally" a "due process issue." Report of Proceedings (RP) at 35. He further concluded that although English did not need to notify Buss that he was amending his complaint, Buss should have been given the opportunity to defend against the relation-back motion. He concluded that, based on the evidence presented, Buss never got notice of the lawsuit until October 2015, which was outside of the statute of limitations.
Judge Murphy concluded that this was not the typical case in which Buss "knew or should have known" he would be added to the suit. RP at 37. Judge Murphy did not explicitly conclude whether English's failure to add Buss to the original complaint was due to inexcusable neglect. Judge Murphy noted that from the record, he could glean only that English brought the motion toamend in order to bring claims that would not be subject to Title 51 RCW immunity. He further stated that although English claimed adding Buss was a mere "formality," "it is much more than a formality when the entity that was originally sued was out of the case, and Mr. Buss [was] left on his own." RP at 39...
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