                                                                                           Filed
                                                                                     Washington State
                                                                                     Court of Appeals
                                                                                      Division Two

                                                                                       June 6, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
 CHRISTOPHER ENGLISH, an individual,                             No. 50031-1-II

                              Appellant,

        v.

 DENNIS ALVIN BUSS, individually,                          UNPUBLISHED OPINION

                              Respondent,

 STATE OF WASHINGTON, Department of
 Corrections, STATE OF WASHINGTON,
 Department of Social and Health Services,

                              Defendants.

       JOHANSON, P.J. — Christopher English filed a motion to amend a negligence complaint

to add Dennis Buss as a defendant. The existing defendants, Department of Social and Health

Services (DSHS) and Department of Corrections (DOC), did not oppose the amendment. Superior

Court Judge Vicki Hogan granted the unopposed motion allowing the amendment and ruled that

the amended complaint related back to the original complaint. This relation-back ruling defeated

Buss’s potential statute of limitations defense. After Buss was served notice of the lawsuit, he

filed a CR 60 motion for relief from the relation-back order and requested summary judgment

based on the statute of limitations. Superior Court Judge Edmund Murphy struck the relation-back
No. 50031-1-II


ruling and granted summary judgment with respect to English’s claim against Buss on statute of

limitations grounds.

       English appeals Judge Murphy’s order vacating Judge Hogan’s relation-back ruling and

Judge Murphy’s summary judgment dismissal of English’s claims against Buss. English argues

that (1) Judge Murphy violated Pierce County Local Rule (PCLR) 7(c)(5) when he reviewed Judge

Hogan’s relation-back order and (2) Judge Murphy improperly reviewed the CR 15(c) relation-

back ruling under a CR 60 motion for relief. English also argues that (3) even if Judge Murphy

could have reviewed the relation-back order, he erred when he concluded that English did not meet

the relation-back requirements and granted summary judgment.

       We hold that (1) English did not preserve the PCLR 7(c)(5) issue and (2) to the extent

Judge Murphy relied on CR 60, he erred when he reviewed the CR 15(c) relation-back ruling

because such interlocutory orders are not reviewable under CR 60. However, Judge Murphy had

the authority to address a due process violation and therefore properly considered Buss’s motion

for relief. Finally, (3) Judge Murphy properly found that English did not meet the relation-back

requirements and properly granted summary judgment. We affirm.

                                            FACTS

                                    I. BACKGROUND FACTS

       In 2011, Buss, a DSHS employee, directed four DOC inmates, including English, to help

him dismantle a travel trailer that was given to him for his personal use. Buss did not have DSHS

approval to use DOC inmates for his private purposes. On June 8, while breaking down the trailer,

English was seriously injured.




                                               2
No. 50031-1-II


       From June 2011 and throughout 2012, DSHS and the Washington State Executive Ethics

Board investigated this incident. DSHS concluded that Buss demonstrated significant lapses in

judgment and acted negligently when he directed the inmates to perform work for his individual

benefit and when he did not ensure they used proper safety equipment. DSHS attempted to

terminate Buss, but eventually allowed him to resign. The Ethics Board concluded that Buss

violated Washington statutory prohibitions regarding conflicts of interests, securing special

privileges from his public service employment, and using state resources for personal benefit.

          II. ORIGINAL COMPLAINT, ANSWER, DISCOVERY, AND SUMMARY JUDGMENT

       On June 3, 2014, English filed a complaint alleging negligence related to the June 8, 2011

incident. The complaint designated DSHS and DOC as the defendants under the “Parties and

Jurisdiction” section. English served notice of the complaint on DSHS and DOC. In this same

section, the complaint stated, “DENNIS ALVIN BUSS (‘DSHS Supervisor Buss’), was an

employee of the STATE OF WASHINGTON Department of Social and Health Services acting

within the course and scope of his employment at all relevant times herein.” 1 Clerk’s Papers (CP)

at 2. But the complaint did not name Buss as a defendant in his individual capacity, although the

complaint referred to Buss’s actions leading to English’s injury throughout the complaint. Buss

was not named in the caption of the complaint. English did not serve Buss with notice of the

complaint at this time.

       DSHS and DOC filed an answer, admitted Buss was a former DSHS employee, denied that

Buss had acted within the scope of employment during the June 8 incident, and referred to Buss

as a “nonparty.” For 15 months, English, DSHS, and DOC engaged in discovery. Buss did not




                                                3
No. 50031-1-II


participate in the discovery proceedings. On September 18, 2015, DSHS and DOC filed a motion

for summary judgment in which they claimed Title 51 RCW immunity.

                                    III. AMENDED COMPLAINT

       On September 24, 10 weeks before trial, English filed a motion to amend his complaint.

English asked to bring additional claims against DSHS and DOC and also requested to add Buss

in his individual capacity as a defendant in order to bring claims “that will not be subject to Title

51 immunity.” 1 CP at 45.

       English requested under CR 15(c) that the amendment relate back to the original complaint

filing date. English argued that Buss would not be prejudiced if added because “[Buss] will most

likely be defended by the attorney general’s office.” 1 CP at 51. English further contended that

the complaint related back because Buss, DSHS, and DOC shared a community of interest and

because the amendment merely represented a change in Buss’s capacity when he was already

named in the original complaint’s parties section. Neither DSHS, DOC, nor English served Buss

with notice of the motion to amend the complaint.

       DSHS and DOC did not oppose the motion. On October 2, Judge Hogan granted the

motion to amend without a hearing. The order stated, “[T]hat the Amendments relate back to the

original filing of this case under [CR] 15(c).” 1 CP at 147.

       English filed the amended complaint and served Buss with the summons and complaint on

October 13. Trial was set for December 1. An attorney appeared for Buss on October 23. On

November 18, he filed a motion to dismiss, or in the alternative, to continue the trial date and

reopen discovery. In the motion, Buss argued that English’s amended complaint ran afoul of the




                                                 4
No. 50031-1-II


statute of limitations because English could not meet the requirements under CR 15(c) for the

amended complaint against Buss to relate back to English’s original complaint.

       Also on November 18, DSHS and DOC submitted a notice of settlement that also stated

that Buss remained a defendant. The superior court entered a stipulated judgment against DSHS

and DOC. On December 1, English and Buss stipulated to an order to continue the trial date to

May 1, 2016. The new case schedule provided that discovery would end February 29.

                              IV. BUSS’S CR 60 MOTION FOR RELIEF

       In January, Buss filed a CR 60 motion for relief from Judge Hogan’s relation-back order

granting English’s motion to amend the complaint. In his motion, Buss sought summary judgment

dismissal of the claim against him, raised a statute of limitations defense, and sought relief under

CR 60(b)(1), (4), and (11). The superior court transferred the motion and the case to Judge Murphy

as a matter of normal case management.

       Judge Murphy heard argument on Buss’s motion.              Buss argued that Judge Hogan

improperly granted the relation-back motion because the motion was unopposed, which deprived

the superior court of the information that English could not meet the elements of CR 15(c). Buss

admitted that he could not find case law in which a relation-back order was considered under a CR

60 motion for relief. But he argued that he was otherwise without a civil remedy to object to being

added as a party because he could not bring a reconsideration motion because he was served

outside the 10-day window to bring such a motion. Buss further argued that Judge Hogan should

not have ruled on a relation-back motion before he could be heard on that matter because it

effectively eliminated his meritorious statute of limitations defense.




                                                 5
No. 50031-1-II


       English argued that Buss’s motion should be denied because a CR 60 motion is not the

proper procedure to reconsider a relation-back ruling. English did not argue that consideration of

the relation-back ruling violated PCLR 7(c)(5).1 Without offering legal authority in support,

English further argued that it was a standard matter of course to bring a motion to amend with a

request that it relate back, even without the party being added present when the motion is argued.

And he argued that Buss must wait for an appeal to address the relation-back issue. English further

noted that he agreed to a six-month continuance of the trial requested by Buss’s attorney and sent

over all discovery and pleadings in order to alleviate prejudice.

       Judge Murphy noted that the parties did not provide authority that clarified whether a party

could challenge a relation-back ruling under CR 60. Judge Murphy concluded that this was

“[f]undamentally” a “due process issue.” Report of Proceedings (RP) at 35. He further concluded

that although English did not need to notify Buss that he was amending his complaint, Buss should

have been given the opportunity to defend against the relation-back motion. He concluded that,

based on the evidence presented, Buss never got notice of the lawsuit until October 2015, which

was outside of the statute of limitations.

       Judge Murphy concluded that this was not the typical case in which Buss “knew or should

have known” he would be added to the suit. RP at 37. Judge Murphy did not explicitly conclude

whether English’s failure to add Buss to the original complaint was due to inexcusable neglect.

Judge Murphy noted that from the record, he could glean only that English brought the motion to



1
  PCLR 7(c)(5) states, “No party shall reargue the same motion to a different judicial officer
without showing by affidavit, what motion was previously made, when and to which judicial
officer, what the order or decision was, and any new facts or other circumstances that would justify
seeking a different ruling from another judicial officer.”

                                                 6
No. 50031-1-II


amend in order to bring claims that would not be subject to Title 51 RCW immunity. He further

stated that although English claimed adding Buss was a mere “formality,” “it is much more than a

formality when the entity that was originally sued was out of the case, and Mr. Buss [was] left on

his own.” RP at 39.

        Judge Murphy ruled that he could address the relation-back ruling from a due process

perspective. Judge Murphy then ruled that the order granting the motion to amend the complaint

would stand, but that he “struck the language” with respect to “relating back under CR 15(c).” 3

CP at 597. Judge Murphy concluded that the complaint against Buss did not relate back and that

the statute of limitations barred English’s action against Buss. Accordingly, he granted Buss’s

motion for summary judgment “[p]ursuant to CR 60.” 3 CP at 597. Judge Murphy denied

English’s motion for reconsideration. English appeals Judge Murphy’s order vacating the relation-

back order and Judge Murphy’s summary judgment dismissal order.

                                             ANALYSIS

                                           I. PCLR 7(C)(5)

        First, English argues that Judge Murphy violated PCLR 7(c)(5) 2 when he revisited Judge

Hogan’s ruling that English’s amended complaint related back.3 We decline to review this issue

because it is raised for the first time on appeal.



2
  PCLR 7(c)(5) states, “No party shall reargue the same motion to a different judicial officer
without showing by affidavit, what motion was previously made, when and to which judicial
officer, what the order or decision was, and any new facts or other circumstances that would justify
seeking a different ruling from another judicial officer.”
3
  English also argues that if Buss’s motion were a reconsideration motion it was untimely because
it was filed more than 10 days after Judge Hogan’s order. This argument is correct but irrelevant
because Buss’s motion was not a motion for reconsideration.

                                                     7
No. 50031-1-II


       We may refuse to review any claim of error that was not raised in the trial court. RAP

2.5(a). However, a party may raise certain claimed errors for the first time in the appellate court.

RAP 2.5(a). English did not argue below that PCLR 7(c)(5) prevented Buss from challenging the

relation-back ruling before Judge Murphy. English also does not argue here that any RAP 2.5(a)

exceptions apply.

       The many reasons behind RAP 2.5(a) are well settled. See State v. Strine, 176 Wn.2d 742,

749, 293 P.3d 1177 (2013); State v. Weber, 159 Wn.2d 252, 271-72, 149 P.3d 646 (2006); State v.

Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012); State v. Scott, 110 Wn.2d 682, 685-86, 757

P.2d 492 (1988).4 English fails to provide any grounds on which we should reach this issue for

the first time on appeal. Thus, we decline to address Buss’s PCLR 7(c)(5) argument.

                                        II. CR 60 REVIEW

                 A. CR 60 MOTION FOR RELIEF FROM AN INTERLOCUTORY ORDER

       Next English argues that Judge Murphy erred when he considered Buss’s CR 60 motion

for relief because CR 60 does not apply to an interlocutory order granting a motion to amend; it

can only address relief from a final judgment. We agree that CR 60 does not apply.

       We review questions of law de novo. Wash. State Farm Bureau Fed’n v. Gregoire, 162

Wn.2d 284, 300, 174 P.3d 1142 (2007). Here, English presents the legal, procedural question of

whether a CR 15(c) relation-back ruling can be reviewed on a CR 60 motion. Thus, we review

this issue de novo.




4
 RAP 2.5(a) makes no distinction between civil and criminal cases. State v. WWJ Corp., 138
Wn.2d 595, 601, 980 P.2d 1257 (1999).

                                                 8
No. 50031-1-II


       CR 60(b) allows for review of final orders. Washburn v. Beatt Equip. Co., 120 Wn.2d 246,

300-01, 840 P.2d 860 (1992). CR 60(b) is not the proper vehicle to use where interlocutory orders

are concerned. Washburn, 120 Wn.2d at 300-01. A ruling on a CR 15 motion to amend is

interlocutory in nature. Taylor v. Bell, 185 Wn. App. 270, 297 n.25, 340 P.3d 951 (2014), review

denied, 183 Wn.2d 1012 (2015). Thus, we hold that to the extent Judge Murphy relied on CR 60,

he erred by reviewing and vacating an interlocutory CR 15(c) relation-back ruling as a matter of

law under a CR 60(b) motion for relief.

                        B. AUTHORITY TO REVIEW THE CR 15(C) RULING

       English next argues that Washburn establishes that the use of CR 60 motions to review

interlocutory orders is barred and that it is disingenuous for Buss to argue that his motion was

anything but a CR 60 motion. We hold that Judge Murphy had the authority and the duty to address

a due process violation and therefore properly considered Buss’s motion for relief.

1.     STANDARD OF REVIEW AND RULES OF LAW

       “We review questions of law, including constitutional due process guaranties, de novo.”

State v. Derenoff, 182 Wn. App. 458, 465, 332 P.3d 1001 (2014). “Due process requires ‘notice

reasonably calculated to apprise a party of the pending proceedings affecting him and an

opportunity to present his objections before a competent tribunal.’” Conner v. Universal Utils.,

105 Wn.2d 168, 173, 712 P.2d 849 (1986) (quoting State v. Ralph Williams’ N. W. Chrysler

Plymouth, Inc., 87 Wn.2d 327, 335, 553 P.2d 442 (1976), dismissed, 430 U.S. 952 (1977)).

“Procedural due process ‘[a]t its core is a right to be meaningfully heard, but its minimum

requirements depend on what is fair in a particular context.’” Derenoff, 182 Wn. App. at 466

(alteration in original) (quoting In re Det. of Stout, 159 Wn.2d 357, 370, 150 P.3d 86 (2007)).


                                                9
No. 50031-1-II


       We may affirm on any basis supported in the record. Deep Water Brewing, LLC v. Fairway

Res. Ltd., 170 Wn. App. 1, 11, 282 P.3d 146 (2012). Application of CR 15(c), which permits the

relation back of an amendment changing a defendant, must comport with the minimal due process

requirements of giving the new party an opportunity to be heard at a meaningful time and in a

meaningful manner. Pub. Util. Dist. No. 1 of Klickitat County v. Walbrook Ins. Co., 115 Wn.2d

339, 349, 797 P.2d 504 (1990).

       Division One of this court has also held that “because interlocutory orders are not

automatically appealable, permitting a trial court to correct any mistakes prior to entry of final

judgment serves the interests of judicial economy.” Alwood v. Harper, 94 Wn. App. 396, 400-01,

973 P.2d 12 (1999).

2.     DUE PROCESS CONCERNS ALLOWED JUDGE MURPHY TO EXERCISE REVIEW

       Judge Murphy stated that he considered Buss’s ability to contest the relation-back ruling

“[f]undamentally” a “due process issue.” RP at 35. And Judge Murphy stated that Buss should

have had, but was denied, the opportunity to contest the relation-back ruling. We agree.

       Application of CR 15(c) must comport with the minimal due process requirements of

giving the new party an opportunity to be heard at a meaningful time and in a meaningful manner.

Pub. Util. Dist. No. 1 of Klickitat County, 115 Wn.2d at 349. We review the particular context of

a case to determine if the minimum due process requirements are met. Derenoff, 182 Wn. App. at

466. Here, Judge Hogan found that English’s claim related back without hearing from Buss on

October 2. English did not serve Buss with the summons and the complaint until October 13.

Thus, Buss was not a party to the lawsuit at the time Judge Hogan ruled on the relation-back

motion. Since Buss was not a party to the lawsuit and did not get notice reasonably calculated to


                                               10
No. 50031-1-II


apprise him of the hearing affecting him and an opportunity to present his objections before a

competent tribunal, Buss was denied due process.5 Conner, 105 Wn.2d at 173.

       We hold that where Buss was not notified of English’s relation-back motion such that Buss

was left without an option besides litigating the case and appealing later, Buss was not afforded

appropriate procedural safeguards, leaving him without opportunity to be heard at a meaningful

time and in a meaningful manner. Pub. Util. Dist. No. 1 of Klickitat County, 115 Wn.2d at 349;

Derenoff, 182 Wn. App. at 466.

       This view comports with precedent that where a party may be added to a suit under a

relation-back motion, the added party should be given timely notice in order to defend against a

relation-back motion. See Martin v. Dematic, 182 Wn.2d 281, 286, 340 P.3d 834 (2014) (in which

the trial court heard a summary judgment motion from the party that the plaintiff sought to add as

a defendant); Miller v. Campbell, 164 Wn.2d 529, 535, 192 P.3d 352 (2008) (in which a party that

the plaintiff sought to add was given timely notice such that the party was able to submit an answer

to the motion, objecting to being added); Kommavongsa v. Haskell, 149 Wn.2d 288, 294, 67 P.3d

1068 (2003) (same).

       Additionally, permitting a trial court to correct any mistakes in an interlocutory order

before final judgment serves judicial economy interests. Alwood, 94 Wn. App. at 400-01. English

suggests that Buss should have gone to trial and appealed the relation-back order only after a final



5
  English asserts that Buss should have filed a reconsideration motion. But Buss was not in a
position to file a reconsideration motion as English suggests. Because Buss was not served with
notice of the lawsuit until 11 days after the relation-back ruling, he was prevented from filing a
motion for reconsideration, which had to be filed 10 days after the entry of the order. PCLR
7(c)(2); CR 59(b). Further, it is doubtful that Buss, as a nonparty to the hearing, had standing to
file a reconsideration motion.

                                                11
No. 50031-1-II


verdict. This suggestion would not serve judicial economy, and we see no reason to adopt such a

view. We hold that it was in the interest of judicial economy for Judge Murphy to correct Judge

Hogan’s relation-back ruling, rather than having Buss submit to trial and wait until a final judgment

to appeal. We thus hold that Judge Murphy properly exercised review to afford relief as justice

and judicial economy required in order to ensure Buss’s due process rights.

                   III. CR 15(C) RELATION-BACK CLAIM AND SUMMARY JUDGMENT

          English next argues that even if Buss had properly challenged the amendment order, Judge

Murphy incorrectly concluded that the CR 15(c) relation-back requirements were not met and

thereby erred when he granted summary judgment on the basis that the statute of limitations had

run. We disagree.

                            A. STANDARD OF REVIEW AND RULES OF LAW

          We review whether the CR 15(c) requirements have been met de novo. Martin, 182 Wn.2d

at 287-88. CR 15(c) provides that if a party amends their complaint and meets the requirements

of the rule, their amended complaint “relates back” to the date of the original pleading and thus is

considered timely. Martin, 182 Wn.2d at 288.6 “CR 15(c) has two textual and one judicially



6
    The full text of CR 15(c) states,
          Relation Back of Amendments. Whenever the claim or defense asserted in the
          amended pleading arose out of the conduct, transaction, or occurrence set forth or
          attempted to be set forth in the original pleading, the amendment relates back to the
          date of the original pleading. An amendment changing the party against whom a
          claim is asserted relates back if the foregoing provision is satisfied and, within the
          period provided by law for commencing the action against the original party, the
          party to be brought in by amendment (1) has received such notice of the institution
          of the action that the new party will not be prejudiced in maintaining her or his
          defense on the merits, and (2) knew or should have known that, but for a mistake
          concerning the identity of the proper party, the action would have been brought
          against the new party.

                                                   12
No. 50031-1-II


created requirements.” Martin, 182 Wn.2d at 288.7 All three requirements must be satisfied in

order for a claim to relate back. Stansfield v. Douglas County, 146 Wn.2d 116, 122, 43 P.3d 498

(2002).

          The party seeking to amend its complaint has the burden to prove the two textual

requirements under CR 15(c) for relation back to occur. Martin, 182 Wn.2d at 288-89.

          First, the text requires that “the added party must have received notice of the action within

the limitations period such that he or she will not be prejudiced in maintaining his or her defense

on the merits.” Martin, 182 Wn.2d at 288; CR 15(c)(1). Notice may be actual or constructive to

fulfill CR 15(c). Beal v. City of Seattle, 134 Wn.2d 769, 780, 954 P.2d 237 (1998). Second, “the

added party must have known or should have known that but for a mistake concerning his or her

identity, the action would have been brought against him or her.” Martin, 182 Wn.2d at 288; CR

15(c)(2).

          Washington courts have also followed federal precedent to add an “inexcusable neglect”

requirement to the text of the rule. Martin, 182 Wn.2d at 289. Under that requirement, plaintiffs

may not add new defendants if they delay in doing so “‘due to inexcusable neglect.’” Martin, 182

Wn.2d at 289 (quoting N. St. Ass’n v. City of Olympia, 96 Wn.2d 359, 368, 635 P.2d 721 (1981)).




7
 CR 15(c) also has a threshold requirement that the claim “asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth . . . in the original pleading.” Here, the
parties agree that English’s amended claim arose out of the same occurrence as the original claim.
We accept the parties’ agreement on this factor.

                                                   13
No. 50031-1-II


                                B. NO NOTICE AND PREJUDICE

1.     NOTICE

       English argues that within the statute of limitations period, Buss received notice of the

lawsuit because he knew or should have known that he could be named in the suit. Again we

disagree.8

       a.     NO CONSTRUCTIVE NOTICE BASED ON DSHS AND ETHICS BOARD INVESTIGATIONS

       First, English argues that Buss had constructive notice that he would be named as a party

because of the DSHS and Ethics Board investigations of his conduct, DSHS’ attempt to terminate

him, the Ethics Board decision, and his knowledge of English’s injuries. Buss argues that

constructive notice of the suit cannot be imputed to him based on these investigations. We agree

with Buss.

       A party must have actual or constructive notice regarding the possible claim sought to be

raised against them by an amended pleading. CR 15(c)(1); Beal, 134 Wn.2d at 780. Notice may

come from sources other than the original complaint. RTC Transp., Inc. v. Walton, 72 Wn. App.

386, 395-96, 864 P.2d 969 (1994).

       English relies on RTC Transport, Inc. for the proposition that the DSHS and Ethics Board

investigations against Buss were adequate to notify Buss that he could be named as a defendant.

English’s reliance on this case is misplaced. RTC Transport, Inc. involved only the addition of

claims, not added parties. 72 Wn. App. at 396.




8
  There was no actual notice given to Buss within the statute of limitations period. RCW
4.16.080(2).

                                                 14
No. 50031-1-II


       Additionally, Division Three of this court in RTC Transport, Inc. analyzed cases in which

pretrial proceedings—including briefing on a summary judgment motion, oral argument on

pleadings and discovery—notified established parties that an opposing party would make an

additional claim. See 72 Wn. App. at 396. And in RTC Transport, Inc., the parties conducted

extensive discovery related to the claim at issue and the party adverse to the added claim

specifically asked the other party if they would make such a claim before they did so. 72 Wn.

App. at 396.

       The DSHS and Ethics Board investigations took place between 2011 and 2012. English

provides no authority suggesting that the fact of these investigations, their conclusions, Buss’s

resignation, or his awareness of English’s injuries gave Buss constructive notice that he would be

added to English’s negligence complaint like the pretrial proceedings gave notice of additional

claims against established parties in RTC Transport, Inc. We hold that these investigations do not

establish constructive notice as English contends.

       b.      NO CONSTRUCTIVE NOTICE IN LIGHT OF CHANGED CAPACITY

       Second, English argues that Buss had constructive notice because Buss was named “in the

parties section” and throughout the original complaint, and the amended complaint merely

changed Buss’s capacity to a formal defendant “in both his individual and official capacity.” Br.

of Appellant at 20. Buss argues that this case is not analogous to those English relies on such that

it establishes Buss had notice. We agree with Buss.

       English relies on Beal, Miller, Kommavongsa, and Craig v. Ludy, 95 Wn. App. 715, 976

P.2d 1248 (1999), to argue that “change in the person’s capacity in the litigation satisfies the notice

requirement of the CR 15(c) test.” Br. of Appellant at 19. English oversimplifies the holdings


                                                  15
No. 50031-1-II


from these cases and fails to establish that they apply here to show that Buss had constructive

notice.

          Beal, Kommavongsa, and Miller all involve factual situations in which a plaintiff brought

a CR 15(c) claim to amend their original complaints to change only the plaintiff’s representative

capacity in which the suit was brought. See 134 Wn.2d at 773; 149 Wn.2d at 294; 164 Wn.2d at

535. In these cases, the notice requirements of CR 15(c) were met where the defendants had actual

notice of the lawsuit and accordingly were not prejudiced, and where the real party plaintiff in

interest ratified the lawsuit or sought to be substituted as plaintiff within a reasonable time after

objection by the adversary. Kommavongsa, 149 Wn.2d at 317 (substituting a motorist as the real

party plaintiff in interest in legal malpractice action rather than the guardians ad litem for a

motorist’s wife and daughter who originally brought the legal malpractice action); and see Beal,

134 Wn.2d at 781 (allowing a plaintiff to bring a wrongful death claim in the capacity of a personal

representative of a decedent, rather than in the capacity of a guardian ad litem for children of the

decedent as in the original filing); Miller, 164 Wn.2d at 536 (allowing a bankruptcy debtor to

substitute the bankruptcy trustee as the real party in interest in this case).

          English argues that as in these cases, the amended complaint “was more in the nature of a

change in Buss’s capacity” where Buss’s name appears in the original complaint and the amended

complaint then added him to the caption as a “formal defendant.” Br. of Appellant at 20. But

English adding Buss as a named defendant in the amended complaint does not illustrate the type

of representative capacity change as found in Beal. There, the change was from a named plaintiff’s

status as a guardian ad litem to a personal representative. And in Kommavongsa, the change was

from the guardians ad litem for a motorist’s wife and daughter to the motorist. Finally, in Miller,


                                                  16
No. 50031-1-II


the change was from a bankruptcy debtor to a bankruptcy trustee. In those cases, the added

plaintiffs’ connections to the original plaintiffs were such that the added plaintiffs knew about the

suit or knowledge of the suit could be imputed to the added plaintiff. See Beal, 134 Wn.2d at 775;

Kommavongsa, 149 Wn.2d at 294; Miller, 164 Wn.2d at 535. Here, there is no such evidence

illustrating that Buss had actual or imputed knowledge of English’s negligence suit.

       English’s reliance on Craig similarly fails. In Craig, plaintiffs brought an action against a

motorist who was in a traffic accident. 95 Wn. App. at 716-17. The superior court dismissed the

action because the motorist died and his estate had not been joined as a party within the limitations

period. Craig, 95 Wn. App. at 717. Division Three of this court held that notice received by the

motorist’s insurer of action brought after the motorist’s death could be imputed to the motorist’s

estate. Craig, 95 Wn. App. at 720. Thus, the Craig court permitted a CR 15(c) amendment

substituting the estate as the defendant to relate back to filing of the original complaint. 95 Wn.

App. at 720.

       English’s original complaint did not name Buss as a defendant in his official capacity, or

in any capacity, nor did it name him in the caption, although it referred to Buss’s actions leading

to English’s injury throughout. English fails to establish how mention of Buss in the original

complaint and his addition as a defendant in the amended complaint is analogous to the decedent’s

estate being substituted for the decedent. We hold that English’s argument that Buss had

constructive notice as a result of a mere change in capacity fails.




                                                 17
No. 50031-1-II


       c.      NO CONSTRUCTIVE NOTICE BY VIRTUE OF A COMMUNITY OF INTEREST

       Third, English argues that this case is akin to those in which the notice requirement is met

where the added and the original defendants share a community of interest. This argument fails.

       English argues that this case is analogous to cases in which CR 15(c) was satisfied where

notice to an insurer could be imputed to the insured’s estate due to a community of interest

including Perrin v. Stensland, 158 Wn. App. 185, 240 P.3d 1189 (2010), LaRue v. Harris, 128

Wn. App. 460, 115 P.3d 1077 (2005), Schwartz v. Douglas, 98 Wn. App. 836, 837, 991 P.2d 665

(2000), and Craig, 95 Wn. App. at 719-20. This is unpersuasive.

       Perrin helpfully summarizes each of these cases:

       In each case, we concluded the amendment related back under a theory of imputed
       notice. As noted in Craig, federal courts have held timely notice may be imputed
       to a defendant added in an amended complaint if there is a community of interest
       between the originally named defendant and the party to be added, as with
       insurance carriers and the estates of their insureds.

158 Wn. App. at 196 (emphasis added). In each of these cases, the reviewing courts found a

community of interest between an insurer and the insured’s estate because the insurer would have

had to defend a suit either for the deceased insured or for his or her estate after death, and thus

notice to the insurer or to the estate could be imputed to the other. See Perrin, 158 Wn. App. at

196; Craig, 95 Wn. App. at 719-20; Schwartz, 98 Wn. App. at 840; LaRue, 128 Wn. App. at 465.

       Here, English fails to establish how Buss’s former employment created a community

interest between Buss and DSHS and DOC as existed in the cases English relies on. In Perrin,

Craig, Schwartz, and LaRue, a community of interest existed where the insurer would have had to

defend a suit either for the deceased insured or for his or her estate after death. Here, Buss was no

longer a DSHS employee for two years when English brought his original negligence claim. And


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No. 50031-1-II


there is nothing in the record to suggest that DSHS and DOC had a contractual obligation to defend

Buss as an insurer would to defend an insured or their estate.

       DSHS and DOC did not defend Buss. In their answer to English’s original complaint,

DSHS and DOC denied that Buss had acted within the scope of employment during the June 8

incident and referred to Buss as a “nonparty.” We hold that English’s argument that Buss had

notice by virtue of his community interest with DSHS and DOC fails.9 Further, we hold that none

of English’s arguments illustrate that Buss had notice of the lawsuit. We next analyze whether

this lack of notice prejudiced Buss in maintaining his defense pursuant to CR 15(c)(1)’s first

textual requirement.

2.     PREJUDICED

       English argues that Buss was not prejudiced because the superior court should have tolled

the statute of limitations where the State was properly served, and such tolling is appropriate for

unserved defendants pursuant to RCW 4.16.170. Buss argues that tolling does not apply here and

that he was prejudiced by the lack of notice. We hold that tolling does not apply here and that the

lack of notice prejudiced Buss such that English failed to meet CR 15(c)’s first textual requirement.




9
  English also cites to Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1400 (9th Cir.
1984), DeSantis v. Angelo Merlino & Sons, Inc., 71 Wn.2d 222, 225, 427 P.2d 728 (1967), and
Hendrix v. Memorial Hospital of Galveston County, 776 F.2d 1255, 1257-58 (5th Cir. 1985), for
the proposition that a community interest is established where defendants are represented by the
same agent. But English does not offer any reasoned analysis explaining why that scenario would
be analogous to the facts here. “Passing treatment of an issue or lack of reasoned argument is
insufficient to merit judicial consideration.” Holland v. City of Tacoma, 90 Wn. App. 533, 538,
954 P.2d 290 (1998); RAP 10.3(a)(6). We hold that English’s listing of these cases does not merit
judicial consideration.

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No. 50031-1-II


       a.      TOLLING

       RCW 4.16.170 states that for the purpose of tolling any statute of limitations an action

commences when a complaint is filed or summons is served. Additionally, “[i]f service has not

been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more

of the defendants to be served personally, or commence service by publication within ninety days

from the date of filing the complaint.” RCW 4.16.170. Although this statute allows service on

one defendant to toll a statute of limitations as to an unserved defendant, this presumes the

unserved defendant is a named defendant. See Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325,

327, 815 P.2d 781 (1991) (analyzing whether statute of limitations on service tolled with respect

to added defendants named in a complaint); Kim v. Lakeside Adult Family Home, 185 Wn.2d 532,

561, 374 P.3d 121 (2016).

       Here, although Buss was mentioned in the body of the complaint, Buss was not a named

defendant in the caption or body of English’s complaint. Thus, contrary to English’s argument,

RCW 4.16.170 does not apply such that service on DSHS and DOC should toll the statute of

limitations against Buss. See Sidis, 117 Wn.2d at 327; Kim, 185 Wn.2d at 561.

       b.      PREJUDICE FROM A FORECLOSED DEFENSE

       English argues that Buss was not prejudiced by the amendment. Buss argues that he was

prejudiced because the lack of notice inhibited his ability to properly prepare a defense and

foreclosed the possibility of a meritorious statute of limitations defense. We agree Buss was

prejudiced.

       CR 15(c)(1) requires that “the added party must have received notice of the action within

the limitations period such that he or she will not be prejudiced in maintaining his or her defense


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No. 50031-1-II


on the merits.” Martin, 182 Wn.2d at 288. Undue delay on the part of the movant proposing the

amendment of a claim is grounds to deny a motion to amend only where such delay works undue

hardship or prejudice upon the opposing party. Caruso v. Local Union No. 690 of Int’l Bhd. of

Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 100 Wn.2d 343, 349, 670 P.2d 240

(1983). Delay alone is not sufficient reason to deny a motion, though as a practical matter, the risk

of prejudice increases with time. Caruso, 100 Wn.2d at 350.

       As discussed above, English requested to add Buss in his individual capacity as a defendant

only after the State claimed Title 51 RCW immunity and after the statute of limitations had run on

the claim. English’s delay in notifying Buss about the relation-back claim foreclosed Buss from

contesting the relation-back motion by bringing a timely statute of limitations defense. English

and Buss conceded at oral argument that a statute of limitations defense is a defense on the merits

for the purpose of CR 15(c). Wash. Court of Appeals oral argument, English v. Buss, No. 50031-

1-II (Apr. 10, 2017), at 21 min., 00 sec. through 22 min., 26 sec., and 30 min., 48 sec., through 31

min., 20 sec. (on file with court). Thus, we hold that English’s delay in amending the complaint

to add Buss as a party, and the resulting delay in serving the summons and notice of complaint

until after the statute of limitations had run, prejudiced Buss.




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No. 50031-1-II


3.     CONCLUSION

       English had the burden to prove CR 15(c)’s first textual requirement that Buss received

actual or constructive notice of the action within the limitations period such that he was not

prejudiced. We hold that English failed to do so.10

                              C. FINDING AND SUMMARY JUDGMENT

       We review an order of summary judgment de novo and perform the same inquiry as the

superior court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary

judgment is appropriate where the pleadings, admissions on file, and 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 statute of limitations for personal injury actions in Washington

is three years. RCW 4.16.080(2).

       English served Buss with the summons and complaint nearly four years and four months

after English sustained injury. And because English failed to meet the requirements under CR

15(c) for his amended complaint to relate back to the original complaint, English’s claim against

Buss was outside the statute of limitations period. Accordingly Judge Murphy’s grant of summary

judgment on the basis that the statute of limitations barred English’s claim was appropriate.




10
  Because all three elements must be met, and English fails to prove the first element, we need
not address English’s arguments regarding the remaining elements.
                                               22
No. 50031-1-II


        We affirm.

        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 in accordance with RCW 2.06.040,

it is so ordered.



                                                    JOHANSON, P.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




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