Opinion
No. 51835-6-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-13591-9. Judgment or order under review. Date filed: 01/10/2003. Judge signing: Hon. Jay V White.
Counsel for Appellant(s), Alvin Dwight Jr Mayhew, Attorney at Law, 112 W Meeker, PO Box 247, Puyallup, WA 98371-0026.
Mark C. Smythe, Attorney at Law, 306 So. 7th St. Ste 209a, Tacoma, WA 98402-3776.
Counsel for Respondent(s), Randall W. Redford, Attorney at Law, 900 4th Ave Ste 1400, Seattle, WA 98164-1047.
During eviction proceedings, Sharon Blincoe filed pleadings in which she claimed that her nonpayment of rent should be excused because unsafe conditions on the rental property had damaged her health, and asserted that she had medical proof of the connection. More than three years later, Blincoe sued her landlord for negligence. The trial court correctly dismissed the claim on summary judgment because the statute of limitations had run. And the court did not err during the summary judgment hearing by failing to consider an affidavit Blincoe had filed for an earlier motion because counsel never drew the court's attention to the affidavit during the hearing. We affirm.
From 1992 through January 1999, Blincoe rented a single family home from Mark Morse and his wife. In late 1998, Blincoe fell far behind in her rent. The Morses brought an unlawful detainer action. In a pro se response to the complaint for unlawful detainer, Blincoe contended that her failure to pay rent resulted from health problems caused by the house's defective sewage septic system. She claimed she had medical proof of that connection and argued that she had suffered a constructive eviction that excused nonpayment of rent. The court commissioner that heard the case concluded that Blincoe could not show a constructive eviction because she did not bring the condition of the premises to the attention of the landlord during the tenancy.
Blincoe's sister Darrlyn also lived in the house intermittently during that time and is an additional plaintiff. We do not specifically address her claims, however, because in the trial court and on appeal the parties have treated her legal position as identical with Sharon Blincoe's. The rental was managed by Around the Clock, Inc., (ATC) also a named defendant. References to the Morses in this opinion include ATC.
Blincoe hired an attorney who filed a motion to revise the commissioner's ruling in February 1999. In the motion, the attorney represented that Blincoe had withheld rent because her health and safety were in danger due to the house's defects. The court denied the motion to revise. Blincoe filed suit against the Morses in May 2000, but filed a voluntary nonsuit in October 2001. Blincoe then refiled the suit in June 2002.
The Morses moved for summary judgment, contending that the statute of limitations had run because Blincoe had notice of the alleged defect and the harm it caused no later than February 1999, more than three years before filing the lawsuit. Blincoe contended that she had no notice until July 1999, when a doctor examined her and determined that her medical problems were caused by conditions in the house. The trial court granted the motion. Blincoe appeals.
We review a grant of summary judgment de novo, considering `only evidence and issues called to the attention of the trial court.' RAP 9.12; Youngblood v. Schireman, 53 Wn. App. 95, 99, 765 P.2d 1312 (1988). Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' CR 56(c). `The facts and all reasonable inferences therefrom must be considered in the light most favorable to the nonmoving party.' Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 198, 943 P.2d 286 (1997). Questions of law are reviewed de novo. Rivett v. City of Tacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994).
The discovery rule is a limited exception to the general rule of the accrual of a cause of action. See generally, In re Estates of Hibbard, 118 Wn.2d 737, 745-50, 826 P.2d 690 (1992). The purpose of the rule is to provide a remedy `when, from the circumstances of the wrong, the injured party would not in the usual course of events know he had been injured until long after the statute of limitations had cut off his legal remedies[.]' Ruth v. Dight, 75 Wn.2d 660, 665, 453 P.2d 631 (1969); see also In re Estate of Peterson, 102 Wn. App. 456, 463, 9 P.3d 845 (2000), review denied, 142 Wn.2d 1021 (2001). The discovery rule postpones the running of a limitations statute until a time when a plaintiff, through the exercise of due diligence, should have discovered the factual basis for the cause of action. `The key consideration under the discovery rule is the factual, not the legal, basis for the cause of action.' Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992). A cause of action will accrue on that date even if the actual discovery of a legal remedy did not occur until later. Gevaart v. Metco Constr., Inc., 111 Wn.2d 499, 502, 760 P.2d 348 (1988) (citing Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 733 P.2d 530 (1987)).
The parties agree that the applicable statute of limitations is three years. RCW 4.16.080(2). The question is therefore whether Blincoe had knowledge of the factual basis of her cause of action more than three years before June 2002. The Morses supported their motion for summary judgment with copies of Blincoe's answer and motion to revise in the unlawful detainer action. In the answer, Blincoe claimed that [the house's] sewage problems have created serious and continuing health problems for me that have very nearly cost me my life and my job of 20 years at Boeing Commercial Airplane Group. I can back up my claim of injury and disability with documentation from my physicians and from the Boeing Company itself.
She also asserted that the problems with the house violated the Morses' duties as her landlord and constituted constructive eviction that excused the nonpayment of rent. In the motion to revise Blincoe's attorney similarly claimed that `[f]rom approximately 1996, Ms. Blincoe noticed extreme moisture build-up which was accompanied by strong offensive odors and the growth of mold' and `began suffering from health problems caused by such defects.'
These unrebutted documents established that the cause of action accrued at the latest by February 1999 because by then Blincoe knew `or in the exercise of due diligence should have known, all the essential elements of the cause of action, specifically duty, breach, causation and damages.' In re Estate of Hibbard, 118 Wn.2d at 752.
Blincoe contends that her pro se pleadings should not be taken at face value because the statements `were unsworn and their tone appears to be that of a frustrated pro se litigant expressing anger rather than a calm recital of the facts.' But the statements were clearly admissible under ER 801(d)(2) as statements of a party opponent, were not objected to, and regardless of their tone, made factual assertions not only that Blincoe had knowledge of all elements of the claim, but that she had corroboration from her doctor and employer. And contrary to Blincoe's argument, the attorney's statement, knowledge of which is properly imputed to her, further demonstrated her awareness of the link between the conditions of the house and her health problems. See State v. Williams, 79 Wn. App. 21, 27, 902 P.2d 1258 (1995) (attorney's statement can qualify as an admission by the client).
Blincoe's second assignment of error is that the trial court erroneously failed to consider for summary judgment purposes an affidavit she filed in response to a motion to dismiss that the Morses brought, but abandoned, earlier in the litigation. But the affidavit was not part of Blincoe's response to the motion for summary judgment. When the trial court characterized the defense summary judgment materials as unrebutted, Blincoe's counsel did not contend otherwise or even mention the affidavit, but argued rather that it was unnecessary to rebut the defense materials. Nor did counsel object to the order on summary judgment that did not list the affidavit among the materials the court considered.
Blincoe suggests that these omissions were merely a misstep by her counsel that should have no legal consequence, but acknowledges she has no case law supporting her position on this issue. Because it is clear that the affidavit was not drawn to the trial court's attention, we cannot rely on that material in our review or fault the court for not addressing it. RAP 9.12.
Affirmed.
APPELWICK, KENNEDY and COLEMAN, JJ.