Opinion
No. 25961-7-III.
November 4, 2008.
Appeal from a judgment of the Superior Court for Adams County, No. 03-2-00256-2, Adala A. Hillie, J. Pro Tem., entered February 5, 2007.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Korsmo, J.
UNPUBLISHED OPINION.
On September 11, 2000, Katherine M. Horst, age 19, died when her car collided with a car driven by Donald Bishop. Katherine's parents, James and Kathleen Horst, in their individual capacity, and Kathleen Horst, as the personal representative of her daughter's estate, brought this wrongful death action against Donald and Jane Doe Bishop. Prior to filing this action, Ms. Horst was designated as personal representative but failed to file an oath of personal representative.
After learning that a personal representative had not been appointed and that letters of administration had never been issued by the court, the Bishops moved for summary judgment. The Horsts did not file any response. At a rescheduled hearing on the motion, the Horsts' attorney requested a second continuance on the basis that he had been ill for an extended period of time and his office printer had broken down. The trial court denied the Horsts' motion for a continuance and granted the Bishops' motion for summary judgment. The Horsts appeal.
Mr. Bishop died during this litigation.
We conclude that the trial court did not abuse its discretion by denying the motion for continuance. The trial court also properly granted summary judgment in favor of the Bishops. Accordingly, we affirm.
FACTS
On September 7, 2000, drivers Katherine M. Horst and Donald Bishop were involved in an automobile accident at the intersection of State Route 17 and State Route 26 in Adams County, Washington. Katherine was transported to Deaconess Medical Center in Spokane where she died as the result of her injuries on September 11, 2000. At the time of the accident, Katherine was 19 years old and a full-time college student. James and Kathleen Horst are Katherine's parents.
Procedural History. On August 28, 2003, nearly three years after the death of their daughter, the Horsts, through their attorney, John A. Bardelli, filed an intestate probate action in Spokane County Superior Court. An "Order Granting Letters of Administration and Appointing Resident Agent," naming Katherine's mother, Kathleen Horst, as personal representative and appointing her as resident agent was entered nunc pro tunc on that same date. Clerk's Papers (CP) at 74-75. The order specifically states: "KATHLEEN S. HORST shall be and is confirmed as Personal Representative to serve without bond, upon filing an oath, and that KATHLEEN S. HORST is appointed resident agent." CP at 74 (emphasis added). However, an oath of personal representative was never filed and, therefore, the court did not issue letters of administration.
On September 8, 2003, the Horsts filed this wrongful death lawsuit seeking monetary damages on behalf of Katherine as the decedent, on their own behalf as the decedent's parents, and as administrator of the decedent's estate. The Horsts named Donald Bishop, Jane Doe Bishop, and the State of Washington Department of Transportation as defendants. The Bishops were served on November 24. It appears from the record that a second lawsuit against the State of Washington, Department of Transportation, was dismissed on summary judgment, based on the Horsts' failure to comply with the statutory claim statute and statute of limitations.
On September 22, 2004, the Spokane County Clerk of Court filed a notice of intent to dismiss the probate action pursuant to CR 41(b)(2). This rule allows for involuntary dismissal on the court's motion in cases where no action has been taken during the previous 12 months. The Horsts' attorney, Mr. Bardelli, did not respond. Consequently, on November 1, an order of dismissal was entered and the probate was dismissed without prejudice. No other probate has been filed.
On April 30, 2006, Mr. Bishop died. On May 12, the Bishops' attorney, Heather Yakely, notified Mr. Bardelli that Mr. Bishop died. In July 2006, while engaging in discovery, counsel for the Bishops attempted to obtain Katherine's medical records. Through their research, the Bishops discovered that Ms. Horst had never been formally appointed as personal representative of Katherine Horst's estate and that the probate action had been dismissed on the court's motion in November 2004 after more than one year without any action. Additionally, because an oath of personal representative was not filed, letters of administration were never issued by the court. Thus, a valid personal representative had not been appointed when the wrongful death lawsuit was filed by the Horsts or at any time thereafter.
Based on this information, the Bishops filed a motion for summary judgment on November 20, 2006. In their motion, the Bishops argued that: (1) the plaintiffs' wrongful death suit on behalf of the estate of decedent must be dismissed because Ms. Horst had no standing because she was not the personal representative; (2) the parents' individual claims must be dismissed because they did not file their survival action within the statute of limitations and they were not financially dependent on their daughter; and (3) the cause of action against Mr. Bishop abated upon his death. The Horsts received copies of the motion and supporting memorandum on November 15, as reflected by a date stamp placed on the documents by Mr. Bardelli's office.
The initial hearing on the motion for summary judgment was scheduled for December 18, 2006. At Mr. Bardelli's request, the hearing was rescheduled for February 2, 2007. The record indicates that Mr. Bardelli was in trial. Mr. Bardelli made the request for a continuance only four or five days before the December 18 hearing date. The Bishops advised Mr. Bardelli that they would object to any briefing submitted by him because the request for a continuance occurred past the responsive pleading deadline.
The parties agree that Mr. Bardelli failed to file any responsive documents between the time the Horsts first received notice of the Bishops' motion for summary judgment on November 15, 2006, and the hearing on February 2, 2007.
At the hearing, and without notice, Mr. Bardelli provided Ms. Yakely and the court with an unfiled motion for a continuance of the Bishops' motion for summary judgment. Mr. Bardelli did not request a continuance of the February 2 hearing until his actual appearance at the hearing. The motion included the supporting affidavit of Mr. Bardelli in which he asserted that he was unable to respond previously due to unforeseen illness and printing difficulties.
In the affidavit, Mr. Bardelli alleged that he had been "quite ill for an extended period of time" and was just beginning to recover from unspecified medical and dental conditions that had been plaguing him since September 2006. CP at 27. Mr. Bardelli stated:
Throughout the months of September, October, November, December and the first half of January, my ability to focus on any legal matters at the present time is extremely limited because of the pain I was going through, the lack of sleep, general malaise, and an inability to focus or concentrate because of issues I was experiencing with an adjustment in prescriptive medications I am taking.
CP at 27-28. Mr. Bardelli admitted that the symptoms "have compromised to a large extent my effectiveness in practicing law" and that "I could not function nor come close to putting in the necessary time, concentration, research, and effort in addressing the needs of any of these cases because of the medical and dental conditions being faced at this time." CP at 27-28.
Mr. Bardelli also submitted to the trial court, in camera, three letters concerning the medical and dental issues he had been facing. The letters Mr. Bardelli provided were from Gordon E. Hawk, D.M.D., dated September 8, 2006; Peter D. Rinaldi, M.D., dated September 13, 2006; and Jeffrey E. Hartman, M.D., dated September 27, 2006. Because the letters pertained to the medial records of a nonparty, the trial court entered an order sealing the documents on November 15, 2007. In the Horsts' appellate brief, Mr. Bardelli acknowledges that he "presented argument and letters from three medical care providers to the Court and Defendants' counsel setting forth his inability to effectively engage in the practice of law due to health issues that he was undergoing at the time." Br. of Appellant at 3-4. However, the record shows that the Bishops' counsel was not allowed to review the medical provider's letters at the hearing.
In addition to his medical conditions, Mr. Bardelli also claimed that "the HP printer in my office broke down in December necessitating that I purchase a new state of the art HP Printer" and that "[f]or the first time over the past two months we can now generate a document and have it print first time, every time, without losing the document in some manner, shape or form." CP at 28-29.
With the exception of the continuance granted on December 22, 2006, Mr.
Bardelli admitted that he never contacted Ms. Yakely to discuss any further continuances. Nor were Ms. Yakely or the court ever notified that Mr. Bardelli suffered from any medical or dental condition or was otherwise in need of additional time due to printing issues. In fact, Mr. Bardelli admitted that he continued to work on other legal matters during that time.
The trial court noted that the documents were not appropriately before the court because they had not been filed properly. After reviewing the affidavit and allowing Mr. Bardelli to argue his request for a continuance, the trial court denied Mr. Bardelli's motion. The trial court then heard oral argument from both parties regarding the issues raised in the Bishops' motion for summary judgment. The trial court granted the Bishops' motion for summary judgment. This appeal followed.
ANALYSIS
Motion for Continuance. The Horsts contend that the court abused its discretion by denying their attorney's request for a continuance of the summary judgment motion. In his motion for a continuance, Mr. Bardelli claimed that he was unable to respond to the Bishops' motion for summary judgment because he had been ill for an extended period of time and his printer was broken. On appeal, he contends that his failure to comply with the deadline for filing a response was the result of excusable neglect. Mr. Bardelli argues that his clients should not be denied their right to have this case decided on the merits simply because their attorney's physical and mental conditions resulted in the dismissal of their case. Mr. Bardelli points out that his clients are in no way responsible for, and have been unaware of, these extraordinary circumstances.
CR 56(c) sets out the timetable for the nonmoving party to file its opposing memoranda, affidavits, and other documentation. This rule requires the adverse (nonmoving) party to file any responding documents at least 11 calendar days prior to the hearing on the motion for summary judgment. Although the court may accept affidavits at any time prior to issuing its final order on summary judgment, whether to accept or reject untimely filed affidavits lies within the trial court's discretion. CR 6(b); Brown v. People's Mortgage Co., 48 Wn. App. 554, 559, 739 P.2d 1188 (1987). Under CR 6(b), the trial court, for cause shown, may at any time in its discretion enlarge a time period set by court rule or court order. However, once the nonmoving party misses the original deadline set forth in CR 56(c), a showing of excusable neglect is required under CR 6(b)(2).
The Horsts contend that the trial court should have granted their motion for a continuance to give their attorney additional time to respond to the Bishops' motion for summary judgment. Under CR 56(f), a trial court may continue a motion for summary judgment if the affidavits of the nonmoving party show a need for additional time to obtain affidavits, take depositions, or conduct other discovery.
A party does not, however, have an absolute right to a continuance. Willapa Trading Co. v. Muscanto, Inc., 45 Wn. App. 779, 785, 727 P.2d 687 (1986). Rather, the granting or denial of a motion for a continuance is within the discretion of the trial court and is reversible error only if the ruling was a manifest abuse of discretion. Coggle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990). The trial court may deny a CR 56(f) motion for a continuance when "(1) the requesting party does not have a good reason for the delay in obtaining the evidence, (2) the requesting party does not indicate what evidence would be established by further discovery, or (3) the new evidence would not raise a genuine issue of fact." Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003).
The Bishops served their motion for summary judgment on the Horsts' attorney, Mr. Bardelli, on November 15, 2006. The initial hearing on the motion for summary judgment was scheduled for December 18, 2006. When Mr. Bardelli requested a continuance of the initial hearing four to five days prior to the December 18 hearing date, he had already missed the responsive pleading deadline as set forth in CR 56(c). On February 2, 2007, the previously scheduled motion was heard. Between the time the Horsts first received notice of the Bishops' motion for summary judgment on November 15, 2006, and the hearing on February 2, 2007, a period of about two and one-half months, Mr. Bardelli failed to file any responsive documents.
Despite his claims, during the months when the motion for summary judgment was pending, Mr. Bardelli failed to inform the court or opposing counsel that he had been suffering from any medical or dental condition or that he was experiencing computer and printing difficulties. In fact, Mr. Bardelli's motion for a continuance was first presented to the trial court and opposing counsel, unfiled, at the February 2, 2007 hearing. At the hearing, Mr. Bardelli offered no explanation as to why he delayed in requesting the continuance or why he made no effort to contact the Bishops' counsel to discuss the situation.
Mr. Bardelli requested the continuance, in part, on the basis that he suffered from unforeseen medical and dental conditions. However, according to the medical records provided, Mr. Bardelli had been suffering from these alleged conditions since September 2006, approximately four months prior to the actual hearing date.
The record suggests that Mr. Bardelli was not hampered in his ability to practice law and was not under a disability that prevented him from responding to the Bishops' summary judgment motion. While at the February 2 hearing, Mr. Bardelli informed the trial court that he was still experiencing the medical and dental problems but nevertheless appeared, engaged in oral argument, and otherwise continued to represent the Horsts. Moreover, Mr. Bardelli admitted at the hearing that he continued to work on other legal matters and performed responsibilities in his practice during the months in question. In addition, Mr. Bardelli requested the first continuance in December 2006 because he was trying another case.
In addition, Mr. Bardelli's computer and printing problems did not constitute excusable neglect under CR 6(b)(2). Mr. Bardelli alleged that he "experienced serious difficulties with computer, printing and copying equipment during this same time frame which necessitated replaced [sic] all computers, printers and copier in his office in order that he could be productive." Br. of Appellant at 4.
While Mr. Bardelli claimed that his printer broke down in December, he failed to inform the court or Ms. Yakely of his difficulties when requesting the first continuance or at any other time during the two months he allegedly experienced these problems. And as the Bishops noted at the hearing, there are numerous other options available for printing and word processing, such as at public libraries, 24-hour copy centers, or other law offices. Finally, and most importantly, Mr. Bardelli appeared to concede at the hearing that he had not even attempted to print a response to the summary judgment motion. Under these facts, Mr. Bardelli's claim that he had no print capabilities in his office was an insufficient ground for a continuance.
The trial court did not abuse its discretion by denying Mr. Bardelli's motion for a continuance.
Motion for Summary Judgment. The Horsts also contend that the trial court erred by granting the Bishops' motion for summary judgment.
We review an order granting summary judgment de novo, engaging in the same inquiry as the trial court and considering all facts and reasonable inferences in the light most favorable to the nonmoving party. Seybold v. Neu, 105 Wn. App. 666, 675-76, 19 P.3d 1068 (2001). Summary judgment is proper if the record before the court shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 861, 93 P.3d 108 (2004).
The Wrongful Death Action was Properly Dismissed. The Horsts first contend that any acts engaged in by a personal representative who has not signed an oath are not void and may be cured by the subsequent filing of the oath. This argument is without merit. "In Washington, wrongful death actions are strictly creatures of statute." Atchison v. Great W. Malting Co., 161 Wn.2d 372, 376, 166 P.3d 662 (2007). The wrongful death statute, RCW 4.20.010, provides: "When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death." (Emphasis added.) This statute is read to require that only a personal representative may bring an action for wrongful death.
Atchison, 161 Wn.2d at 376. As a result, a wrongful death action cannot be brought until a personal representative is appointed. Id. at 378.
Former RCW 11.28.170 (1965), concerning the oath of personal representative, provides:
Before letters testamentary or of administration are issued, each personal representative or an officer of a bank or trust company qualified to act as a personal representative, must take and subscribe an oath, before some person authorized to administer oaths, that the duties of the trust as personal representative will be performed according to law, which oath must be filed in the cause and recorded.
A person is not qualified to act as the personal representative of the estate until the statutorily required oath and bond are timely filed. Williams-Moore v. Estate of Shaw, 122 Wn. App. 871, 878, 96 P.3d 433 (2004) (holding that neither CR 15(c), CR 17(a), nor the doctrine of equitable tolling will excuse a person's failure to comply with the oath and bond requirements of RCW 11.28.170 and .185).
An intestate probate was filed on August 28, 2003. The Horsts filed this wrongful death action on September 8, just days short of the statute of limitations. The probate action was dismissed over one year later on November 1, 2004. Prior to the dismissal of the probate, a valid personal representative had not been appointed. Although Ms. Horst filed a petition for letters of administration, none were ever issued by the court because she failed to file the oath of personal representative. Consequently, the Horsts were not authorized to file a wrongful death suit.
The Horsts rely on a treatise for the proposition that a personal representative can cure a defect by giving a bond at a later date. However, the Bishops' motion for summary judgment was not dependent upon an argument that the Horsts failed to file a bond. Rather, the Bishops' argument focused on the fact that the Horsts failed to file an oath of personal representative and that no letters of administration were issued from the court. As the statutes make clear, a personal representative must be lawfully appointed to file an action under RCW 4.20.010, .046, or .060.
Further, on November 1, 2004, the probate matter was dismissed. As a result, this action on behalf of the decedent's estate was initiated and proceeded without a valid personal representative, even after the Horsts were notified of the probate dismissal. Even if the Horsts were to obtain standing and re-file the suit as the decedent's personal representative, the wrongful death statute would not toll and the action would be time barred.
The Bishops Did Not Waive Any Defenses. The Horsts next contend that the Bishops were precluded from arguing any issues on summary judgment related to the statute of limitations, the probate action, or their failure to file against Mr. Bishop's estate. The Horsts argue that the Bishops waived any right to raise these defenses by not raising them in their answer and engaging in discovery. Relying on Blankenship v. Kaldor, 114 Wn. App. 312, 57 P.3d 295 (2002) and other insufficiency of service cases, the Horsts argue that a waiver of a defense occurs when (1) the defendant's assertion of the defense is inconsistent with the defendant's previous behavior, or (2) the defendant's counsel has been dilatory in asserting the defense.
The Horsts' waiver argument is unpersuasive. Here, there is no question regarding the proper service. The central issues concerning Ms. Horst's authority to act as personal representative and Mr. Bishop's death occurred nearly one year after the Bishops' answer was filed. In particular, the fact that Ms. Horst had not been formally appointed as personal representative was not discovered until the Bishops' counsel made a request for the decedent's medical records during discovery. Shortly after learning of the Horsts' error, the Bishops moved for summary judgment. Accordingly, there is no evidence of dilatory behavior by the Bishops.
Claims Under the Survival Statutes were Properly Dismissed. Unlike wrongful death statutes, which compensate relatives who have suffered loss because of the decedent's death, survival statutes attempt to compensate the victim himself or herself (through the estate of the decedent) for losses suffered as a result of premature death. 16 David K. Dewolf Keller W. Allen, Washington Practice: Tort Law and Practice § 6.1, at 229-30 (3d ed. 2006). "Washington's survival statutes, RCW 4.20.046 and 4.20.060, do not create a new cause of action; they preserve the causes of action that the decedent could have maintained if still alive." Otani v. Broudy, 114 Wn. App. 545, 548, 59 P.3d 126 (2002), aff'd, 151 Wn.2d 750, 92 P.3d 192 (2004).
Under RCW 4.24.010, one of Washington's special personal injury survival statutes, parents can maintain an action for the wrongful death or injury to a minor child or a child on whom they are dependent for support. Likewise, under a second special survival statute, RCW 4.20.060, the personal representative of a decedent's estate is granted authority to bring a cause of action for personal injuries and then only if the injuries were the cause of death. Recovery under RCW 4.20.060 is for the benefit of the decedent's beneficiaries as designated in the statute. The statute does not require that surviving spouses and children of the decedent establish their dependency in order to bring an action. Higbee v. Shorewood Osteopathic Hosp., 105 Wn.2d 33, 39, 711 P.2d 306 (1985). RCW 4.20.046(1) permits a decedent's personal representative to recover damages for the decedent's pain and suffering, anxiety, emotional distress, and humiliation experienced by the decedent prior to death, but only for the beneficiaries listed in RCW 4.20.020.
As with the wrongful death statute, a personal representative may file a survival statute action only when statutory survivors exist. RCW 4.20.060. Significantly here, the survival statutes do not permit the parents of an adult child to recover damages when the parent was not financially dependent on the child. Philippides v. Bernard, 151 Wn.2d 376, 386, 88 P.3d 939 (2004). Parents must establish their dependency on the decedent in order to bring an action or recover damages. Higbee, 105 Wn.2d at 39.
Here, the Horsts have not established that their daughter was survived by a spouse or children, both of whom are beneficiaries under the survival statutes. Nor have they established that they were financially dependent on their daughter. As a result, their direct action under RCW 4.24.010 was properly dismissed. Likewise, the decedent's own action for personal injuries under RCW 4.20.060 failed for lack of a valid personal representative and on the basis that the Horsts were not statutory beneficiaries.
Actions Against Mr. Bishop Abated Upon his Death. Mr. Bishop died in April 2006. A cause of action for wrongful death abates upon the death of the wrongdoer. Rinker v. Hurd, 69 Wash. 257, 258, 124 P. 687 (1912). At the time the Bishops moved for summary judgment, seven months after Mr. Bishop's death, the Horsts had not moved to amend their complaint to add Mr. Bishop's estate as a named party. However, had they attempted to do so, they would have been unsuccessful, as the probate was dismissed and there was no personal representative to amend the claim to include Mr. Bishop's estate.
Further, even if the Horsts could re-open the closed probate, or file a new probate action, the statute of limitations ran on September 11, 2003. As noted above, any new personal representative would be outside the statute of limitations and, thus, could not file against Mr. Bishop's estate. There are no tolling provisions which would provide for the Horsts' failure to file the oath of the personal representative, or amend the current defective action, as against Mr. Bishop's estate, not Mr. Bishop. Accordingly, any claim against Mr. Bishop's estate would now fail because the statute of limitations ran almost five years ago.
The statute of limitations for a wrongful death action in Washington is three years under RCW 4.16.080(2). The wrongful death action accrues at the time of death. See Atchison v. Great W. Malting Co., 161 Wn.2d 372, 378, 166 P.3d 662 (2007).
In summary, Ms. Horst was not qualified to act as personal representative of her daughter's estate due to her failure to file an oath and, therefore, she had no authority to bring any action against the Bishops under the wrongful death or survival statutes. Moreover, because the Horsts did not establish that they are financially dependent on their daughter, they are not beneficiaries for purposes of the wrongful death or survival statutes. Similarly, they did not establish the existence of any other statutory beneficiary as designated in RCW 4.20.020. As a result, their individual claim under RCW 4.24.010 was properly dismissed. Finally, the Bishops are no longer the proper parties to the suit. For all of the above-stated reasons, summary judgment was appropriate.
Accordingly, we affirm.
A majority of the panel has determined 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.
KORSMO, J., SCHULTHEIS, C.J., concur.