Opinion
No. 23065-1-III
Filed: May 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Franklin County. Docket No: 03-2-50810-4. Judgment or order under review. Date filed: 05/03/2004. Judge signing: Hon. Vic L Vanderschoor.
Counsel for Appellant(s), William J. Jr Flynn, Attorney at Law, 830 N Columbia Center Blvd Ste a, Kennewick, WA 99336-7756.
Counsel for Respondent(s), Robert Graham Schultz, Attorney at Law, 2415 W Falls Ave, Kennewick, WA 99336-3068.
A complaint is properly filed with the court when it is tendered to the clerk's office with the appropriate filing fee, not when the fee is finally `processed' by the clerk's office. The trial judge here dismissed this personal injury action because service was not effected within 90 days of the filing of the complaint. It was filed on the 91st day. The filing fee was paid when the complaint was filed but was not processed until three days later. The question then is whether the filing date is the date the papers and the check were handed to the clerk or whether it is the date the check was processed. We hold it is the former and affirm the trial court's dismissal of the complaint.
FACTS
Marilyn Arnzen sued Adam Boulton for injuries sustained in a car accident on November 17, 2000. Ms. Arnzen left a summons, complaint, and a filing fee with the court clerk on October 24, 2003. The court stamped the documents with a `filed' date of October 24, 2003. But the filing fee was processed on October 27. And the clerk sent Ms. Arnzen a receipt.
Ms. Arnzen tried unsuccessfully to serve Mr. Boulton with process. She then served under RCW 46.64.040 (Washington's non-resident motor vehicle statute). She served Washington's secretary of state on January 23, 2004, 91 days after the summons and complaint were filed with the court.
Mr. Boulton moved to dismiss because the suit had not been timely served (within 90 days). The court granted the motion and dismissed Ms. Arnzen's complaint.
DISCUSSION
Ms. Arnzen argues that a complaint is not officially filed until the filing fee has been paid. And here the filing fee was processed on October 27, 2003. The clerk therefore did not have the discretion to stamp the documents as `filed' on October 24, 2003.
Mr. Boulton responds that the summons, complaint, and filing fee were effective when tendered and accepted by the court — October 24, 2003. He concludes from this that Ms. Arnzen's service on January 23, 2004 was not within the required 90 days; it was instead the 91st day.
We review the trial court's grant of summary judgment de novo. Blumenshein v. Voelker, 124 Wn. App. 129, 133, 100 P.3d 344 (2004).
A personal injury action must be brought within three years from the date of the injury. RCW 4.16.080(2); Schwartz v. Douglas, 98 Wn. App. 836, 838, 991 P.2d 665 (2000). Filing a complaint commences the action and tolls the statute of limitations. RCW 4.16.170. The plaintiff then has 90 days to serve the summons. Id. But the action is commenced only if the summons is timely served. Id.
A complaint is properly filed with the court once it is tendered to the clerk's office with the appropriate filing fee. RCW 36.18.005(2) (definition of `filed'), .020(2) (filing fees), .060 (tender of fees). The fee must be `tendered' before the clerk may perform the services requested. RCW 36.18.060. The clerk does not have the discretion to file a complaint where the required fee has not been paid. Margetan v. Superior Chair Craft Co., 92 Wn. App. 240, 246, 963 P.2d 907 (1998).
`The officers mentioned in this chapter except the county sheriff shall not, in any case, except for the state or county, perform any official services unless the fees prescribed therefor are paid in advance, and on such payment the officer must perform the services required. . . . For every failure or refusal to perform an official duty when the fees are tendered, the officer is liable on his official bond.' RCW 36.18.060.
Ms. Arnzen argues that the summons and complaint were not filed until October 27, 2003 when the fee was processed and receipted, despite the fact that the documents were stamped `filed' on October 24, 2003. And she relied on a receipt from the clerk's office dated October 27, 2003. Her reliance is misplaced. The complaint was filed on October 24, 2003 when it was tendered with the filing fee to the clerk's office. RCW 36.18.005, .020, .060. The clerk's duty arose once the fees were `tendered,' not when they were processed and receipted. RCW 36.18.060.
Ms. Arnzen's service on January 23, 2004 was not, then, within 90 days of October 24, 2003. It was the 91st day. The three year statute of limitations then expired. RCW 4.16.080(2).
We affirm the summary dismissal of the complaint here.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and BROWN, J., Concur.