Opinion
No. 37364-5-II.
September 15, 2009.
Appeal from the Superior Court, Clark County, No. 06-2-06481-3, Robert L. Harris, J., entered January 25, 2008.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Bridge-water, J.
Vancouver police officers arrested Snyder on a domestic violence charge after an altercation between Snyder, his wife, and Allison Parnell. During the dispute, Parnell called 911 to report a domestic dispute. She told 911 dispatch that Snyder had been displaying his gun all day and that the gun was missing. Over three years later, Snyder filed a lawsuit against Allison Parnell and her husband, Kelly, claiming intentional infliction of emotional distress, or "outrage." In his complaint, Snyder claimed that Parnell hid the gun herself and that her false claims to 911 officers amounted to intentional infliction of emotional distress. The Parnells successfully moved for summary judgment based on the statute of limitations. We affirm the trial court's dismissal.
FACTS
On June 16, 2003, Vancouver police officers responded to several calls reporting a domestic dispute involving a gun at the Snyders' apartment. Snyder called 911 three times. The first two calls disconnected, but on the third call, Snyder told 911 dispatchers "She's [Parnell] interfering in an argument I'm having with my wife . . . I've asked her to leave several times, and she won't." Appellant's Br. Ex. 3 at 2. In the background, Parnell told dispatch "[t]here's a gun involved." Appellant's Br. Ex. 3 at 2. Parnell then left the apartment and called 911. She told dispatch that Snyder was "badgering [his wife]" about a missing gun, had been "threatening her with it," and would not let his wife leave the apartment. Appellant's Br. Ex. 3 at 25. Parnell claimed that the gun had "disappeared" and that she did not know who had taken it. Appellant's Br. Ex. 3 at 25.
When the police arrived, Sara, Snyder's wife, told them that she gave the gun to Parnell, who hid the gun in Kelly Parnell's vehicle. She claimed that her husband carried the gun "around all day" and made "subtle threats" to her. Appellant's Br. Ex. 4 at 6. Specifically, she stated that Snyder told her that she would end up like Laci Peterson (a California woman murdered by her husband) shortly before he cleaned his gun.
Parnell corroborated Allison's statement. She told officers that Sara called her several times during the day to tell her that Snyder "was carrying his gun around and threatening her with it." Appellant's Br. Ex. 4 at 7. She admitted that Snyder had told her to leave the apartment but explained that she "feared for Sara's safety so she didn't go." Appellant's Br. Ex. 4 at 8. She told officers that her husband had the gun and provided his telephone number.
The police officers arrested Snyder for Felony Harassment (Domestic Violence) and took him to the Clark County Jail, where he remained while awaiting trial. During his incarceration, Snyder claims he attempted to request the 911 tapes but his "court-appointed attorney refused to get them." Appellant's Br. at 3. Snyder pleaded guilty to misdemeanor harassment and was released from custody in August 2003.
Snyder claims his "vigorous[] attempt[s]" to request the 911 transcripts are "well documented" but has not provided any such documentation with his appeal. Appellant's Br. at 3.
In October 2003, the Vancouver police department told Snyder how to request 911 tapes. He requested the tapes on November 7, 2003 and received them on December 11, 2003.
On December 8, 2006, Snyder filed a complaint in Clark County Superior Court alleging that the Parnells' "extreme and outrageous conduct" consisting of "actions, words, and deceptions of falsely reporting to the 911 representative and police officers" caused Snyder to suffer extreme emotional distress. Clerk's Paper's (CP) at 4. Snyder claims that difficulties obtaining counsel and locating the Parnells caused the significant delay between his discovery of Parnell's false statements to 911 dispatchers and his filing of the lawsuit.
After filing his complaint, Snyder hired private investigators to locate and serve the Parnells. Investigators served the Parnells on March 9, 2007, ninety-one days after Snyder filed his complaint.
On January 17, 2008, the Parnells filed a motion to dismiss Snyder's claim under Superior Court Civil Rule (CR) 12(b)(6) for failure to state a claim. Specifically, the Parnells alleged that the three year statute of limitations on Snyder's claim expired before Snyder filed the complaint or served the summons and complaint on the Parnells.
Snyder argued that his claim was not barred by the statue of limitations because Parnell's statements were made outside his presence and he had no knowledge of them until he received the 911 transcripts on December 11, 2003. He argued that under the discovery rule, the statute of limitations did not begin to accrue until he received the 911 transcripts. The Parnells noted that Snyder did not request the 911 tapes until four months after the domestic violence incident. Additionally, the Parnells argued that since Snyder failed to serve them within 90 days of filing, the lawsuit was properly dismissed. The Parnells alleged that the claim was frivolous and filed without reasonable cause, and they requested sanctions under CR 11 and attorney's fees under RCW 4.84.185.
On January 25, 2008, the trial court found that the statute of limitations barred Snyder's claim and granted Parnells' motion to dismiss. Specifically, the trial court found that Snyder "had reasonable opportunity to discover any of [the] information necessary" and he "did not take timely action." Report of Proceedings (RP) at 11. Additionally, the trial court determined that Snyder's claim was frivolous and advanced without reasonable cause and awarded sanctions and fees to the Parnells. Snyder now appeals.
ANALYSIS
I. Statute of Limitations
Snyder argues that the trial court improperly determined that the statute of limitations began to accrue on the date of the domestic violence incident (June 16, 2003) rather than on the date he received the 911 transcripts (December 11, 2003). He claims, "the [June] incident . . . was insufficient by itself to create a cause of action" without Parnell's "specific statements" from the 911 transcript and that the discovery rule should apply. Appellant's Br. at 7. His argument fails because Snyder's own statements to 911 dispatchers demonstrate that, as of June 2003, Snyder knew or should have known of the facts that gave rise to his claim of outrage.
A statute of limitations provides fixed periods for bringing claims. Statutes of limitation encourage litigants to bring claims while witnesses have a clear memory of events and evidence is available. Summerrise v. Stephens, 75 Wn.2d 808, 811, 454 P.2d 224 (1969). Under CR 12(b)(6), a defendant may ask a trial court to dismiss a claim brought after the statute of limitations has expired. See, e.g., Atchison v. Great W. Malting Co., 161 Wn.2d 372, 374, 166 P.3d 662 (2007). We review a trial court's dismissal of a claim under CR 12(b)(6) de novo. Tenore v. ATT Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998).
CR 12(b)(6) authorized defendants to file a motion to dismiss for failure to state a claim upon which relief can be granted.
Generally, the limitation period begins to run when the factual elements for a cause of action exist and the injured party knows or should know that they exist. See In re Estate of Hibbard, 118 Wn.2d 737, 744-45, 826 P.2d 690 (1992) (citing White v. Johns-Manville Corp., 103 Wn.2d 344, 348, 693 P.2d 687 (1985)); Beard v. King County, 76 Wn. App. 863, 868, 889 P.2d 501 (1995). In circumstances where there is a gap between the injurious act and the plaintiff's knowledge of the injury, a trial court may apply the "discovery rule." Crisman v. Crisman, 85 Wn. App. 15, 20, 931 P.2d 163 (1997). Under the discovery rule, the statue of limitations accrues from the time the plaintiff "actually knew or reasonably should have known [of the facts that supported] their cause[] of action." Stuart v. Coldwell Banker Commercial Group, Inc., 109 Wn.2d 406, 415, 745 P.2d 1284 (1987). The discovery rule requires a plaintiff to exercise reasonable diligence in discovering the basis for their cause of action. Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 772, 733 P.2d 530 (1987). It postpones accrual only until the time the plaintiff should have discovered the basis for the cause of action. See Interlake Porsche + Audi, Inc. v. Bucholz, 45 Wn. App. 502, 516-17, 728 P.2d 597 (1986). The plaintiff bears the burden of proving that the facts constituting the claim were not and could not have been discovered by due diligence within the applicable period. Clare v. Saberhagen Holdings, Inc., 129 Wn. App. 599, 603, 123 P.3d 465 (2005) (citing G.W. Constr. Corp. v. Prof'l Serv. Indus. Inc., 70 Wn. App. 360, 367, 853 P.2d 484 (1993)). Determinations as to when the plaintiff should have discovered the injury or if the plaintiff exercised due diligence are questions of fact. Mayer v. City of Seattle, 102 Wn. App. 66, 76, 10 P.3d 408 (2000) (citing Pepper v. J.J. Welcome Constr. Co., 73 Wn. App. 523, 539, 871 P.2d 601 (1994), overruled on other grounds by Phillips v. King County, 87 Wn. App. 468, 490, 943 P.2d 306 (1997)).
Washington courts disagree about whether outrage claims are governed by the three-year statute of limitations, RCW 4.16.080(2) or the two-year statute of limitations, RCW 4.16.100. See Doe v. Finch, 133 Wn.2d 96, 101, 942 P.2d 359 (1997) (noting, but declining to resolve, the disagreement).
RCW 4.16.080(2) provides that "[t]he following actions shall be commenced within three years[] . . . [a]n action for taking, detaining, or injuring personal property . . . or for any other injury to the person or rights of another not hereinafter enumerated."
In this case, we assume without deciding that the three-year statute of limitations governs Snyder's outrage claim. RCW 4.16.080(2). Neither party disputes that Snyder filed his complaint more than three years after the June incident. The sole issue in this case is whether the trial court properly determined that as of June 16, 2003, Snyder knew or should have known the facts that give rise to his claim of outrage. Because Snyder's statements to 911 dispatchers demonstrate that he suspected Parnell made false statements to 911 dispatchers, the trial court properly concluded that Snyder knew of the alleged injury on June 16, 2003. Accordingly, the trial court properly determined that the statute of limitations began to accrue on that date.
The discovery rule prevents accrual of the cause of action only until the claimant reasonably suspects that a specific wrongful act has occurred. Beard, 76 Wn. App. at 868. Conclusive proof of the wrongful act is not required. Beard, 76 Wn. App. at 868. "A smoking gun is not necessary to commence the limitation period." Beard, 76 Wn. App. at 868. A plaintiff's allegations that a wrongful act occurred demonstrates a reasonable suspicion that activates the limitation period even if the allegations are not confirmed by specific facts until later. Beard, 76 Wn. App. at 868; See e.g., E.R.B. v. Church of God, 89 Wn. App. 670, 686, 950 P.2d 29 (1998) (holding that plaintiffs' actions related to the sexual abuse of their child were time-barred even if the discovery rule applied), rev'd on other grounds by C.J. C. v. Corp. of the Catholic Bishop of Yakima, 138 Wn.2d 699, 714, 729, 985 P.2d 262 (1999) (holding that plaintiffs' actions were not time-barred under a statute addressing childhood sexual abuse, without addressing the discovery rule). In E.R.B., this court stated that the plaintiffs had a reasonable suspicion that a wrongful act had occurred when they submitted a letter and incident report to their church, alleging that a minister had molested their son. 89 Wn. App. at 686. Accordingly, we concluded that the limitations period began no later than the date that the plaintiffs contacted the Church rather than the date when the son confirmed the abuse years later. E.R.B., 89 Wn. App. at 686. Similarly, in Beard, Division One of this court determined that the limitation period began when the plaintiffs filed a claim for damages with King County alleging that King County police officers had improperly revealed confidential information to a law firm rather when the firm's lawyers admitted that they received confidential information several months later. 76 Wn. App. at 866-68.
Turning to the argument Snyder makes in this case, we find that as of June 16, 2003, Snyder had a reasonable suspicion of Parnell's alleged false reports to 911 dispatchers, and we therefore uphold the trial court's determination that the limitation period began in June, not in December when Snyder received the 911 transcripts.
On June 16, 2003, Snyder told 911 dispatchers that Parnell was "accusing me of things that she doesn't know what she's talking about." Appellant's Br. Ex. 3 at 7. Additionally, he expressed concern that he would be "taken down on the ground and arrested because my neighbor [Parnell] decided to make something up." Appellant's Br. Ex. 3 at 15. Like the plaintiffs in E.R.B. and Beard, who suspected a wrongful act had been committed some time before receiving specific facts that validated their suspicions, Snyder accused Parnell of making false statements to 911 dispatchers several months before he received the 911 transcripts. Accordingly, the limitation period on Snyder's outrage claim began when he accused Parnell of "[making] something up" in order to get him arrested, not several months later when the 911 transcripts allegedly validated his accusations. Appellant's Br. Ex. 3 at 15. Because the limitations period expired well before Snyder filed his complaint, we need not address the 90 day service/concealment claim. We affirm the trial court's dismissal of Snyder's claims.
II. Attorney Fees
The Parnells request attorney fees under R.A.P. 18.9(a) and In re Marriage of Penry, 119 Wn. App. 799, 82 P.3d 1231 (2004). That rule authorizes sanctions against a party who "files a frivolous appeal." RAP 18.9(a). An appeal is frivolous if there are no debatable issues upon which reasonable minds can differ and is so totally devoid of merit that there was no reasonable possibility of reversal. Delany v. Canning, 84 Wn. App. 498, 510, 929 P.2d 475 (1997) (quoting Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980)). We resolve all doubts against finding an appeal frivolous and we consider the record as a whole. Delany, 84 Wn. App. at 510.
Looking at this appeal as a whole, this is not a frivolous appeal. Snyder invokes the language of the appropriate RCWs and applicable case law. The trial court was clearly correct in denying Snyder the benefit of the discovery rule in this case. At the same time, Snyder raised an issue regarding the level and detail of his knowledge on the day of the 911 call that was at least debatable, and thus, we deny attorney fees.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and BRIDGEWATER, J., concur.