                                                                         FILED
                                                                     OCTOBER 1, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

THOMAS SILVER, an individual, and all         )
those similarly situated,                     )         No. 36165-9-III
                                              )
                     Appellant,               )
                                              )
       v.                                     )
                                              )         PUBLISHED OPINION
RUDEEN MANAGEMENT COMPANY,                    )
INC., a Washington corporation,               )
                                              )
                     Respondent.              )

       KORSMO, J. — Thomas Silver appeals from the dismissal at summary judgment of

his class action against a property management company. We affirm the trial court’s

determination that his claim was barred by the statute of limitations.

                                          FACTS

       Mr. Silver rented an apartment managed by respondent Rudeen Management

Company for about 40 months. Upon entering into the tenancy, Mr. Silver paid Rudeen a

$300 damage deposit. He vacated the premises June 30, 2015, after giving timely notice

of his intention. On that same day, Rudeen provided Silver a “preliminary” “Deposit

Disposition” statement. The disposition claimed Silver owed $2,516.00 for excessive
No. 36165-9-III
Silver v. Rudeen Mgmt. Co.


wear and tear. On August 18, 2015, Rudeen sent Silver a “final” “Deposit Disposition”

statement claiming a revised amount of $2,281.35 for excessive wear and tear.

       Rudeen sometime thereafter began efforts to collect on its claim. Silver responded

by filing this action. On August 10, 2017, he filed a complaint for damages against

Rudeen. The complaint asserted the existence of a class of plaintiffs and a single cause

of action: a contention that Rudeen had violated the Residential Landlord-Tenant Act of

1973 (RLTA), ch. 59.18 RCW, by not providing within twenty-one days a final statement

concerning the damage deposit pursuant to RCW 59.18.280. Plaintiff requested that the

court refund each class member’s security deposit, give each class member double the

amount of the deposit, and award attorney fees costs. Clerk’s Papers (CP) at 10.

       Rudeen eventually moved for summary judgment, arguing that the action was filed

outside the two-year statute of limitations. Silver contended that his action was subject to

the three-year statute of limitations governing recovery of personal property. The trial

court concluded that the only cause of action asserted was a violation of the RLTA

governed by a two-year statute of limitations. The court granted summary judgment and

dismissed the case for untimely filing.

       Mr. Silver timely appealed to this court. A panel considered his appeal without

hearing oral argument.




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No. 36165-9-III
Silver v. Rudeen Mgmt. Co.


                                        ANALYSIS

       The sole issue presented is whether the two- or three-year statute of limitations

period applied to this complaint. We agree with the trial court that the two-year period

applied.

       The issue of which statute of limitations applies is a legal question that this court

considers de novo. Sorey v. Barton Oldsmobile, 82 Wn. App. 800, 802, 919 P.2d 1276

(1996). If there is uncertainty about which statute applies, “the longer statute will be

applied.” Stenberg v. Pac. Power & Light Co., 104 Wn.2d 710, 715, 709 P.2d 793

(1985).

       The RLTA does not contain a statute of limitations. Typically, when a statute

does not contain its own statute of limitations, RCW 4.16.130 applies. That statute

provides:

       An action for relief not hereinbefore provided for, shall be commenced
       within two years after the cause of action shall have accrued.

However, not every cause of action predicated on statutory liability is subject to the two-

year statute of limitations. Sorey, 82 Wn. App. at 805. Here, Mr. Silver argues that a

three-year limitation period applies:

       An action for taking, detaining, or injuring personal property, including an
       action for the specific recovery thereof, or for any other injury to the person
       or rights of another not hereinafter enumerated;

RCW 4.16.080(2).


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No. 36165-9-III
Silver v. Rudeen Mgmt. Co.


       Mr. Silver pleaded his action under RCW 59.18.280. In pertinent part, that statute

provides:

       Within twenty-one days after the termination of the rental agreement and
       vacation of the premises . . . the landlord shall give a full and specific
       statement of the basis for retaining any of the deposit together with the
       payment of any refund due the tenant under the terms and conditions of the
       rental agreement.

RCW 59.18.280(1). In case of violation of § 280, the legislature provided that the entire

damage deposit would be returned to the tenant and the trial court was authorized to

provide for damages in double the amount of the damage deposit and reasonable attorney

fees. RCW 59.18.280(2). These were the remedies demanded by the complaint. Clerk’s

Papers (CP) at 10.

       Mr. Silver argues that his claim is for return of his damage deposit and

accompanying damages and should be considered an action for return of personal

property under the three-year statute of limitations. He likens his situation to that in

Seattle Professional Engineering Employees Ass’n v. Boeing Co., 139 Wn.2d 824, 991

P.2d 1126 (2000) (SPEEA). There, new Boeing employees were required to attend a

“pre-employment” orientation session without pay. Id. at 827. An employee union

brought a class action suit against the company, arguing that the mandatory unpaid

orientation violated state wage and hour laws. Id. at 827-28. As relevant to this appeal,

the court ruled that the three-year statute of limitations of RCW 4.16.080(3) governing

unjust enrichment applied rather than the two-year catchall statute. Id. at 836-38. In

                                              4
No. 36165-9-III
Silver v. Rudeen Mgmt. Co.


doing so, the court also rejected the employees’ argument that RCW 4.16.080(2) applied.

Id. at 836-37. The court noted that the right being asserted was protected both by law and

statute. Id. at 838. However, not all tort-related actions were governed by the three-year

statute. Id. at 837.

       Rudeen argues that where the common law creates a right of recovery and a statute

supplements that cause of action, the three-year limitation statute applies, but where the

statute creates its own new cause of action unrelated to an existing action, the two-year

catchall is applicable. It finds support for this view in the noted comments from SPEEA

and the synthesis of the case law found in Lewis v. Lockheed Shipbuilding &

Construction Co., 36 Wn. App. 607, 676 P.2d 545 (1984). In Lewis, the court found that

an employment discrimination claim based on the Washington Law Against

Discrimination, ch. 49.60 RCW, enforced a “valuable right or privilege enjoyed by

Lewis.” Id. at 612. Canvassing the case authority, Lewis ruled that where a defendant

“directly invades a legally protected interest,” the three-year limitation statute applied.

Id.

       Thus, the ultimate question concerns the nature of the right invaded. Silver argues

that he was seeking return of his damage deposit, a property right protected by RCW

4.16.080(2). If he had filed a replevin action, we would agree with him. However, his

complaint is expressly predicated on the landlord’s duty under RCW 59.18.280(1) to

respond within twenty-one days by either returning a damage deposit or providing a final

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No. 36165-9-III
Silver v. Rudeen Mgmt. Co.


statement justifying the withholding of some or all of the deposit. He seeks the remedies

accorded by that statute. He does not assert that he did less than $300 damage to the

apartment.

       We conclude that this is an action to enforce the statute, not an action for return of

property. It is the difference between saying "I did not do $300 worth of damage, return

my deposit," and saying "you did not respond in a timely fashion as required, so pay me

the statutory remedies." The former involves a personal right of the plaintiff to

possession of his own funds. The latter involves a breach of statutory duty in derogation

of the plaintiffs rights.

       This was an action to enforce the deposit return obligation of the RLTA. It was

not an action for return of personal property. The two-year statute of limitations period

applied. RCW 4.16.130.

       This action was brought more than two years after it had accrued. The trial court

correctly determined that it was untimely.

       Affirmed.




WE CONCUR:



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