Levy v. State

• Court: Washington Court of Appeals
• Writing for the Court: BRIDGEWATER; HOUGHTON, C.J., and ARMSTRONG
• Citation: Levy v. State, 957 P.2d 1272, 91 Wn.App. 934 (Wash. App. 1998)
• Decision Date: 26 June 1998
• Docket Number: No. 21864-0-II
• Parties: Cynthia L. LEVY, Appellant, v. STATE of Washington, Western State Hospital, and Jerry E. Woods, D.D.S., Respondents.

Page 934

91 Wn.App. 934

957 P.2d 1272

Cynthia L. LEVY, Appellant, v. STATE of Washington, Western State Hospital, and Jerry E Woods, D.D.S., Respondents.

No. 21864-0-II.

Court of Appeals of Washington Division 2.

June 26, 1998.

Robert Charles Hargreaves, Assistant Attorney General, Olympia, for Respondents.

Joseph John Ganz, Law of Joseph Ganz & Assoc., Seattle, for Appellant.

BRIDGEWATER, Judge.

Cynthia Levy was sexually molested while a patient at Western State Hospital. The claim for damages, signed by her attorney and filed with the State Office of Risk Management, was not verified. A complaint was subsequently filed but the case was dismissed for want of prosecution three years after Levy's attorney withdrew. A new attorney moved to vacate the order of dismissal, but the motion was denied. We hold that, because the claim was not verified as required by statute, the superior court lacked jurisdiction and dismissal was proper. We affirm.

It is alleged that, while a patient at Western State Hospital, Levy was sexually molested by a dentist, Dr. Jerry Woods, at the hospital on November 4, 7, and 10, 1988. Levy's first attorney filed a claim for damages with the State Office of Risk Management in April 1991. Levy never verified the claim. Instead, her attorney simply signed the claim "on behalf of Claimant Cynthia L. Levy." The claim was neither sworn under penalty of perjury, nor signed or acknowledged before a notary public. The State sent Levy's attorney a notice approximately one week later indicating its receipt of the claim. Levy's attorney filed a complaint against the State in Thurston County Superior Court on November 4, 1991. Little discovery was conducted and the State never answered. Levy's first attorney filed a notice of intent to withdraw in February 1993, which became effective in March 1993.

In June 1996, the Thurston County Clerk's Office filed a notice of dismissal for want of prosecution. Levy did not receive actual notice because she no longer lived at the address on record; the letter of notice was returned to the Clerk's Office as undeliverable. The case was dismissed for want of prosecution in July 1996. On November 1, Levy's new attorney filed a motion to vacate the order of dismissal. Levy's new attorney argued that, during the period of time that she represented herself pro se, Levy was only "borderline competent" to handle her affairs. Dr. Stuart Greenberg, a psychologist retained to assess Levy's mental abilities, testified as to Levy's mental condition since July 1996. The trial court denied the motion to vacate, reasoning that Levy's failure "to verify her claim is fatal and that the court is without jurisdiction to hear this case. Supporting that conclusion is my finding that the affidavit of Dr. Greenberg is not sufficient to establish that plaintiff was incapacitated from verifying, presenting and filing the claim in 1991." With declarations by Levy's first attorney and his paralegal submitted to support a finding that Levy was incapacitated and unable to verify the claim in 1991, Levy moved for reconsideration. The trial court denied the motion, stating in its oral opinion that the record "does not establish any reason by which I can find that she was incapacitated under the meaning of that statute. Therefore the signature of her lawyer, whether it be considered only as a signature or signature and verification, makes no difference in my analysis. The signature of her lawyer was not adequate." Levy appeals.

I

Levy argues both that the State waived its objection to the sufficiency of the claim by failing to assert it and that the State "is estopped to raise the verification issue at this point." Citing Miotke v. Spokane, 101 Wash.2d 307, 678 P.2d 803 (1984), Levy notes that "the State can waive its claim filing requirement by failing to assert the defense." In Miotke, the Supreme Court held that the state waived its objection to the owner's failure to file a claim pursuant to RCW 4.92.110 because substantial litigation had occurred before the defense was raised. 101 Wash.2d at 337, 678 P.2d 803. The defense was not raised until three years after litigation began and after the first phase of litigation was completed. Miotke, 101 Wash.2d at 337, 678 P.2d 803. Several days of hearings had been conducted, and the trial court had already entered its first set of findings and conclusions. Miotke, 101 Wash.2d at 337, 678 P.2d 803. "In view of the substantial litigation which had occurred before the defense was raised, we agree with the trial court that defendants had waived any objections to plaintiffs' failure to file under RCW 4.92.110." Miotke, 101 Wash.2d at 337, 678 P.2d 803.

The plaintiff in Mercer v. State, 48 Wash.App. 496, 501, 739 P.2d 703, review denied, 108 Wash.2d 1037 (1987), also cited Miotke for the argument that the state waived its right to object to Mercer's failure to file a claim under RCW 4.92.110. Mercer filed her complaint two years and eight months after her cause of action arose, and the state asserted in its answer that she had not complied with RCW 4.92.110. Mercer, 48 Wash.App. at 501-02, 739 P.2d 703. The court concluded that the "unique facts establishing a waiver in Miotke are not present here." Mercer, 48 Wash.App. at 501, 739 P.2d 703. Similarly, Levy filed her complaint the week that the statute of limitations expired. Little discovery was conducted in the case and the State never filed an answer. Even if the State had answered and had asserted the defense in its answer, the statute of limitations would have already run and Levy would not have had an opportunity to refile her claim. Like Mercer, the unique facts establishing waiver in Miotke are not present here.

The plaintiff in Kleyer v. Harborview Med. Ctr., 76 Wash.App. 542, 549, 887 P.2d 468 (1995), argued that "he was misled into believing that he had complied with the claim filing procedures by the fact that the University risk management office attempted to settle the claim. Thus, Kleyer suggests that the University either waived the filing requirement, or should be estopped from raising the failure to file a claim as an affirmative defense." (footnote omitted).

Under RCW 4.92.110, filing a claim with the office of risk management in Olympia is a prerequisite to the commencement of an action, not the initiation of settlement negotiations. Therefore, the University's attempt to settle Kleyer's claim had no impact on Kleyer's statutory obligation to file a claim with the office of risk management in Olympia before filing a suit against the University.

Kleyer, 76 Wash.App. at 549 n. 6, 887 P.2d 468. See also Andrews v. State, 65 Wash.App. 734, 738, 829 P.2d 250 (1992); Jones v. University of Wash., 62 Wash.App. 653, 814 P.2d 1236 (1991), review denied, 118 Wash.2d 1026, 827 P.2d 1393 (1992). Here, Levy waited until the week the limitations period expired to file her complaint, conducted little discovery, and never requested an answer from the State. The State did not waive its objection to Levy's claim for damages merely by indicating its receipt of the claim.

In order to establish equitable estoppel, a party must show: (1) an admission, statement, or act, inconsistent with the claim afterward asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury to such other party arising from permitting the first party to contradict or repudiate such admission, statement, or act. Mercer, 48 Wash.App. at 500, 739 P.2d 703 (citing Shafer v. State, 83 Wash.2d 618, 623, 521 P.2d 736 (1974)). "Equitable estoppel, however, is not favored and requires every element be proved with clear, cogent and convincing evidence." Mercer, 48 Wash.App. at 500, 739 P.2d 703 (citing Pioneer Nat'l Title Ins. Co. v. State, 39 Wash.App. 758, 760-61, 695 P.2d 996 (1985)). Here, there was no admission, statement, or act made by the State that was inconsistent with the State's subsequently asserted position that the claim was insufficient because not verified. The State notified Levy in a letter dated April 26, 1991, "We are in receipt of a copy of your client's claim against the State of Washington in the amount of $1,000,000.00, which was filed with the Office of Risk Management on April 15, 1991." Nor was there any admission, statement, or act on the part of the State that Levy relied on in failing to file a proper claim. Levy filed her complaint in Thurston County Superior Court the same week that the statute of limitations ran. Even if the State had answered and asserted as an affirmative defense that Levy's claim was unverified, the statute of limitations would have already run.

The plaintiff in Mercer relied exclusively on the State's inaction to support her estoppel argument. The court held:

In Pioneer Nat'l Title v. State, supra, however, the court held that where "no State advice or communication ... is alleged ... State inaction, alone, even if a breach of duty, does not constitute an inconsistent admission, statement or act." Pioneer, at 761, 695 P.2d 996. Accordingly, because Mercer has failed to present any evidence establishing an admission, statement or act, inconsistent with the claim, she has failed to satisfy the requirements of equitable estoppel.

Mercer, 48 Wash.App. at 501, 739 P.2d 703. Levy similarly claims that the State is estopped to raise the verification issue because of its inaction as it failed to notify Levy earlier that the claim was not properly verified. There is no evidence establishing an admission, statement, or act by the State that is inconsistent with the defense asserted. Thus, Levy fails to satisfy the requirements of equitable estoppel.

The plaintiff in Hardesty v. Stenchever, 82 Wash.App. 253, 258-59, 917 P.2d 577, review denied, 130 Wash.2d 1005, 925 P.2d 988 (1996), filed her claim for damages at the Office of Risk Management at the University of Washington (UW), rather than at the Office of Risk Management...