Foothills Development Co. v. Clark County Bd. of County Com'rs

• Decision Date: 29 December 1986
• Docket Number: No. 7998-4-II,7998-4-II
• Citation: 730 P.2d 1369,46 Wn.App. 369
• Court: Washington Court of Appeals
• Parties: FOOTHILLS DEVELOPMENT CO., an Oregon corporation, Appellant, v. CLARK COUNTY BOARD OF COUNTY COMMISSIONERS; Richard Granger, Bruce Frickelton and Connie Kearney and Clark County, Respondents.

Page 369

46 Wn.App. 369

730 P.2d 1369

FOOTHILLS DEVELOPMENT CO., an Oregon corporation, Appellant, v. CLARK COUNTY BOARD OF COUNTY COMMISSIONERS; Richard Granger, Bruce Frickelton and Connie Kearney and Clark County, Respondents.

No. 7998-4-II.

Court of Appeals of Washington,

Division 2.

Dec. 29, 1986.

Brian H. Wolfe, Wolfe, Mullins, Hannan & Mercer, P.S., Edward L. Dunkerly, Ihringer & Dunkerly, Vancouver, for appellant.

Willard Walker, Klingberg, Walker, Reitsch & Twining, Longview, Richard S. Lowry, Clark Co. Deputy Pros. Atty., Vancouver, for respondents.

ALEXANDER, Judge.

Foothills Development Company (Foothills) appeals the trial court's orders: (1) denying its motion to join Clark County as a defendant, and (2) dismissing its action against the Clark County Board of Commissioners (Board). We affirm.

On November 2, 1978, Foothills filed an "APPLICATION FOR WRIT OF REVIEW, COMPLAINT FOR DECLARATORY JUDGMENT AND COMPLAINT FOR MONEY DAMAGES" in Clark County Superior The Board filed a motion, pursuant to CR 12(b)(7), to dismiss the entire action for what it alleged was Foothills' failure to join persons necessary for just adjudication. ¹ Shortly thereafter, the Board filed another motion for partial dismissal of the action, contending that Foothills had failed to state a cause of action upon which relief could be granted. The trial court denied both motions.

                Court.   Foothills named the "Clark County Board of County Commissioners:  Richard Granger, Bruce Frickelton, and Connie Kearney" as the only defendants.   Foothills claimed in its pleadings that the Board had acted arbitrarily and capriciously and had exceeded its statutory authority in modifying Foothills' preliminary plat.   The Board's clerk acknowledged receipt of the pleadings on behalf of the Board
                

Foothills then filed a motion to amend its complaint and for joinder of Clark County as a defendant. Attached to the motion was a copy of a "proposed" amended complaint, in which Clark County was named as a defendant. Foothills' attorney noted the motions for a hearing to be held on March 14, 1980. However, apparently to accommodate one of the defense attorneys, Foothills' attorney agreed to reset the motion for a hearing date to be held after the conclusion of the writ of review proceedings.

The review proceedings were concluded on December 31, 1980. ² However, the trial court did not hear Foothills' motion to amend its complaint and for joinder of Clark County until January 11, 1984.

Foothills' attorney stated in his affidavit in support of the motion that he became aware in reviewing the file in The Board next filed a motion for a summary judgment dismissing the named commissioners as defendants, contending that the individual commissioners had never been served personally with a copy of the summons and complaint in the lawsuit. The trial court granted the Board's motion and entered an order dismissing the individual commissioners from the case. Foothills did not appeal that decision. The "Board," as distinguished from its commissioners, remained in the case.

                January 1983 that no order had ever been entered concerning Foothills' motion to amend the complaint to join Clark County.   The County opposed the joinder, contending that joinder should not be permitted for the reason that the statute of limitations had run on any claim against the County.   The County argued that an amended complaint adding Clark County as a party should not relate back to the date that Foothills originally filed its complaint, because Foothills had failed to meet its burden of proving that (1) the delay would not prejudice the County in maintaining a defense on the merits, and (2) that Foothills' failure to amend its complaint to join the County was excusable.   An attorney for the Board stated in his brief opposing the joinder of the County that the attorneys for the Board would represent Clark County as well, if Clark County were joined as a defendant.   The attorneys for the County and the Board conceded that Clark County had notice that it might be named as a defendant as early as February, 1980.   The trial court denied Foothills' motion to join Clark County as a defendant, but it permitted Foothills to amend its complaint to make its damage statement and request for declaratory judgment more definite
                

Foothills filed its amended complaint pursuant to the Court's order on February 8, 1984. In response, the Board filed an answer alleging as an affirmative defense that the Board was not a legal entity that could be sued. The Board then filed a motion to dismiss the action against the Board for that reason, and the trial court granted the motion. Foothills appeals to this court, alleging that the trial court

erred in denying its motion for joinder of Clark County and in granting the Board's motion to dismiss.

DENIAL OF JOINDER MOTION

We first consider whether the trial court abused its discretion in denying Foothills' motion to amend the complaint in order to join Clark County as a defendant. We conclude that the trial court did not err.

Motions to amend are governed by CR 15(a). ³ Here, the original motion for joinder of the County was brought pursuant to CR 19 (Joinder Of Person's Needed For Just Adjudication). However, argument on the motion focused on the propriety of permitting the joinder of Clark County after the statute of limitations had apparently expired on Foothills' claim against the County. Foothills argued that if it were permitted to join Clark County, its amended complaint would relate back to the date the action was originally commenced, a date which was long before expiration of the statute of limitations. ⁴

Apparently the trial court focused on the relation back issue in ruling on the joinder motion, finding it necessary to determine whether an amended complaint adding the County as a party would relate back to the date the suit was originally filed. This was a critical issue because if an amended complaint would not relate back, then justice A determination of relation back under CR 15(c) ⁶ rests within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Caruso v. Local Union No. 690 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer., 100 Wash.2d 343, 351, 670 P.2d 240 (1983). The Washington Supreme Court in Tellinghuisen v. King Cy. Coun., 103 Wash.2d 221, 223, 691 P.2d 575 (1984) held that an amendment adding a party will relate back to the date of the original pleading if three conditions are met:

                would hardly be served by permitting the amendment adding the County as a party, if the claim against the County would then be subject to dismissal for the reason that it was filed after the expiration of the applicable statute of limitations. 5  In order to determine if the trial judge was correct, we must analyze the provisions of CR 15(c) that govern the relation back of amendments
                

First, the added party must have had notice of the original pleading, so that he will not be prejudiced by the amendment. CR 15(c)(1). Second, the added party must have had actual or constructive knowledge that, but for a mistake concerning the proper party, the action would have been brought against him. CR 15(c)(2). Finally, the (Citations omitted.) Tellinghuisen, 103 Wash.2d at 223, 691 P.2d 575.

plaintiff's failure to timely name the correct party could not have been "due to inexcusable neglect."

The burden of proof is on the party seeking the relation back of an amendment to prove the conditions precedent under CR 15(c). Anderson v. Northwest Handling Sys., Inc., 35 Wash.App. 187, 191, 665 P.2d 449 (1983). The moving party also has the burden of proving that the mistake in failing to amend in a timely fashion was excusable. Woodcrest Inv. Corp. v. Skagit Cy., 39 Wash.App. 622, 626, 694 P.2d 705 (1985). When no reason for the omission appears from the record, the omission will be characterized as inexcusable. North Street Ass'n v. Olympia, 96 Wash.2d 359, 369, 635 P.2d 721 (1981). The absence of any of the CR 15(c) elements is fatal to the relation back of an amended complaint. Kiehn v. Nelsen's Tire Co., 45 Wash.App. 291, 724 P.2d 434 (1986).

Clark County argued that it would be prejudiced in maintaining a defense on the merits if the court allowed an amendment adding it as a party to relate back. We find it unnecessary to address this issue because we find that the trial court properly concluded, under CR 15(c), that there should be no relation back because Foothills failed to meet its burden of proving that the failure to amend its complaint in a timely fashion was excusable.

RCW 36.01.020 provides that the County itself, not its Board of County Commissioners, "must be" designated in any action "touching its corporate rights, property and duties." Therefore, the statute put Foothills on notice before the statute of limitations expired that Clark County was a proper party to the action. Indeed, Foothills' attorney, before expiration of the statute of limitations, filed and noted a motion to amend its complaint in order to add Clark County. This strongly suggests that Foothills was aware that the County should have been joined as a defendant. Despite this, Foothills did not renote its motion for joinder or in any way seek to have the proper order entered until long after the statute of limitations had run.

                Even after the writ of review proceedings were concluded, some 10 months remained before the statute of limitations expired within which Foothills could have sought to perfect the amendment of its complaint.   Under these circumstances, we can only conclude, as did the trial court, that failure to add Clark County as a proper party in a timely fashion was inexcusable
                

Foothills appears to argue that because the County's counsel knew about the action because they were also the Board's counsel, they had some duty to inform Foothills that...