In re Kelly

• Citation: 170 Wash.App. 722,287 P.3d 12
• Decision Date: 18 September 2012
• Docket Number: Nos. 29210–0–III, 29746–2–III.,s. 29210–0–III, 29746–2–III.
• Court: Court of Appeals of Washington
• Parties: In re the Matter of Bette Lyn KELLY, Appellant, and Peter MOESSLANG, Respondent.

170 Wash.App. 722

287 P.3d 12

In re the Matter of Bette Lyn KELLY, Appellant, and Peter MOESSLANG, Respondent.

Nos. 29210–0–III, 29746–2–III.

Court of Appeals of Washington,

Division 3.

Sept. 18, 2012.

Allen Morris Gauper, Salina Sanger and Gauper, Spokane, WA, George M. Ahrend, Matthew C. Albrecht, Ahrend Albrecht PLLC, Ephrata, WA, for Appellant.

William C. Schroeder, Paine Hamblen LLP, Spokane, WA, for Respondent.

SWEENEY, J.

[170 Wash.App. 726]¶ 1 The trial court summarily dismissed a suit to establish the existence of a committed intimate relationship (CIR). The court concluded that suit had to be brought within three years of the end of the relationship and here it was not. We agree with the holding and therefore affirm the dismissal but we reverse the award of attorney fees and costs.

FACTS

¶ 2 Bette Lyn Kelly and Peter Moesslang began living together in 1984. From 1986 to 2006, they lived in a house in Liberty Lake, Washington. They dispute when their relationship ended. Ms. Kelly urges that it ended in 2006. She says that they had some rough patches between 1999 and 2001 and in 2004, but that they did not break up until 2006. At that time, she says Mr. Moesslang built a house for her in Spokane. There is no dispute that Ms. Kelly lived alone in a Spokane house titled in Mr. Moesslang's name beginning in the fall of 2006. Mr. Moesslang urges that the relationship ended in 1999. He says he was in a “significant romantic relationship” with another woman, Denise Cole, beginning in 1999.

¶ 3 Ms. Kelly filed a “complaint to divide property acquired during the [CIR] and for other relief” on October 9, 2009. Clerk's Papers (CP) at 3. She alleged facts supporting the proposition that the two were in a CIR from 1984 to 2006. She alleged that they acquired real property and business interests during the relationship. She also alleged that Mr. Moesslang promised that the Spokane house belonged to her. She sought (1) a judgment declaring that the two were in a CIR from 1984 to 2006, (2) an equitable division of property acquired during that period, (3) the Spokane house, and (4) “such other and further relief as the court deems just and equitable.” CP at 7.

¶ 4 Mr. Moesslang pleaded the statute of limitations as an affirmative defense. He moved for summary judgment on that issue. The court concluded that the three-year statute of limitations in RCW 4.16.080(3) (“an action upon a contract or liability, express or implied, which is not in writing”) applied to any action to establish a CIR and that such the equitable cause of action accrues when the relationship ends. The court ordered the parties to file briefs on whether there was a CIR and, if so, when it began and ended. Mr. Moesslang argued that the evidence showed that they were not in a CIR as of October 9, 2006 (the last day for the cause of action to accrue).

¶ 5 Kevin Peden, a computer forensics expert, recovered e-mails from Ms. Kelly to others that were stored on Mr. Moesslang's computer hard drives. In e-mails from 2003 to [170 Wash.App. 728]2005, Ms. Kelly acknowledges that she was “single” and that Mr. Moesslang was involved with Ms. Cole. A December 22, 2003 e-mail from Ms. Kelly to Yong Lee discusses the relationship between Mr. Moesslang and Ms. Cole and Ms. Kelly severing ties with Mr. Moesslang: “I purchased just one item for Peter[,] a travel guide book on New Mexico where he will be leaving for early morning on Xmas day. I'll include a note for his and Denise's Xmas together and my promise for our complete separation in 2004.” CP at 464. In a January 27, 2004 e-mail to Tim Murphy she explained her relationship with Mr. Moesslang: “He has not been a part of my personal life for a long, long time now—eons, as I've explained to you.... We remained ‘a family’ until [my son] finished school completely, but for years now, he lives his life and I live mine.” CP at 478. In a June 9, 2004 e-mail to Gordon Griffith, Ms. Kelly again confirmed that she was not in a relationship with Mr. Moesslang:

[T]oday we are still friends ... This worked quite well until about five years ago or so. At that time when we both realized that our lives would not be “together” in the future, we built a house at Trail Creek (up Paradise Valley) so I would have a place to call “home.” ... Peter has been with a woman for several years, but then he also sees “others” on the side as well. But Denise (his woman) lives in Seattle, so he now spends much time there ... And I've been “single” so to speak for many years now.

CP at 47–48. In another e-mail, sent on August 13, 2004, Ms. Kelly referred to herself as single: “She's single, like myself, and we're both lousy ‘daters.’ ” CP at 493. Finally, a November 8, 2005 e-mail to Uta Menzel also confirmed that Ms. Kelly and Mr. Moesslang were no longer in a relationship. Ms. Kelly wrote:

Denise has consumed his life. He pretty much lives in Seattle, returning to Liberty Lake only for work reasons, in the middle of each week. He leaves each and every weekend (sometimes for three or four days), so it feels like he lives in Seattle, and only commutes to work here.... They (Peter and Denise) appear to be closer than I had ever expected of him.... I am treated more like just an employee now. We do nothing whatsoever socially together—never.

CP at 87–88. In his own declaration, Mr. Moesslang stated that he had been in a “significant romantic relationship” with Ms. Cole since 1999 or 2000. CP at 62. He confirmed that he had spent between 20 and 42 weekends with Ms. Cole every year from 2000 to 2008. He attached credit card statements and flight records as proof of his weekend activities.

¶ 6 Ms. Kelly responded and declared that everything in the complaint was true and correct. She declared that she “was shocked and horrified to read the declaration of Peter Moesslang discussing his alleged relationship with Denise Cole during the time we were living as a family.” CP at 203. She also declared that she began looking for her own home in 2004 because “our living arrangement was becoming increasingly difficult.” CP at 375. She said that she believed that Mr. Moesslang constructed the Spokane house “partially [to] reassure me that we were a family” and “as a partial satisfaction of our relationship rights.” CP at 375. She further explained that, in 2007, she was nervous because she and Mr. Moesslang did not have a formal agreement. She decided to get legal advice. She and Mr. Moesslang tried to negotiate a settlement for the next two years. She said that she delayed filing an action because she was living in the Spokane house and believed that the issues between her and Mr. Moesslang would be resolved.

¶ 7 Ms. Kelly's son, Ty Kelly, also filed a declaration. He said that “[t]he first time Peter ever mentioned the name ‘Denise Cole’ to me was in approximately 2006 when Peter and my mother were building the River Run house. However, Peter only referred to Denise Cole as his friend or his ‘hiking friend.’ ” CP at 380.

¶ 8 Ms. Kelly also filed several declarations suggesting that Mr. Moesslang gave Ms. Kelly the Spokane house. Dr. Peter Holtappels, a friend from Germany, declared:

It was not until late 2008 or early 2009 that Peter Moesslang mentioned the possibility of a separation between himself and Bette Lyn Kelly during one of his visits to Hamburg. ‘BL has difficulty growing old’ was the reason given. When Peter Moesslang realized that my wife reacted strongly to this apparent lack of tact, [however,] he confirmed [that] he had given her a house next to Spokane. Needless to say [that] he never mentioned any other women.

CP at 384. Tom Sanner and Tim Murphy also filed declarations stating that Ms. Kelly had lived in Spokane alone in the Spokane house since 2006.

¶ 9 The court granted summary judgment based on the statute of limitations. As an alternative basis for dismissing the claim, the court concluded that the claims were also barred by the doctrine of laches.

¶ 10 The court gave Ms. Kelly leave to amend her complaint to include any other equitable claims. Ms. Kelly filed an amended complaint. The allegations were almost identical to those in the first, but the amended complaint did add promissory estoppel and part performance. The court dismissed these claims after concluding that they were barred by the statute of frauds. The court ordered that Ms. Kelly be ejected from the Spokane property. Mr. Moesslang moved for CR 11 sanctions because of alleged misrepresentations in Ms. Kelly's affidavits. The court ultimately awarded attorney fees and sanctions to Mr. Moesslang. Ms. Kelly appeals.

DISCUSSION

Statute of Limitations—Committed Intimate Relationship

¶ 11 Ms. Kelly contends that property acquired during a CIR is analogous to community property acquired during a marriage. She argues that, like in a marriage, the parties to a CIR have a “present, undivided and fully vested interest” in the property acquired. Br. of Appellant at 25. And so the court's assumption that the cause of action here accrued when the CIR ended is wrong. She analogizes the situation here to a defunct marriage in which parties hold property as tenants in common. In a defunct marriage, no cause of action accrues until one spouse ousts the other and adversely possesses their jointly owned property. According to Ms. Kelly, she timely brought her claim because she did so within a year of Mr. Moesslang ousting her from the Spokane house.

¶ 12 Mr. Moesslang responds that Ms. Kelly's claim (that they were in a CIR that bestowed certain property rights on her) is a claim in equity for equitable relief. He argues that a claim for equitable relief must be filed within three years after it accrues and that the cause of action accrued when she knew the facts needed to establish her claim. Here, Ms. Kelly knew those facts no later than 1999, but did not sue until October 9, 2009. According to Mr. Moesslang, Ms. Kelly's claim is therefore untimely.

¶ 13 Whether the...