                                                                                                     LEO
                                                                                           COURT         APPEALS




                                                                                          2015 JUN - 9    tkM 8: 146

                                                                                           STATE`    V A+SI ENGTON
                                                                                            BY_




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II


TACOMA SCHOOL DISTRICT NO. 10, a                                                 No. 46198 -6 -II
political subdivision of the State of
Washington,


                                 Respondent,


        v.



 OSKAR SCHOCK, " JANE DOE" SCHOCK,                                      UNPUBLISHED OPINION
husband and wife, and any other individuals
residing at 19607 Bay Road KPS,

                                 Appellants.


        JOHANSON, C. J. —        Oskar       and    Birdie Schock ( Schock) appeal the superior court' s


summary judgment     order   in favor   of   Tacoma School District No. 10 ( the District). The superior


court summarily dismissed Schock' s counterclaims. Because Schock' s counterclaims are barred

by the applicable 30 -day statute of limitations, we affirm.

                                                      FACTS


        In 1968, Oskar Schock    moved       into   Camp Joshua Taylor (the Camp), a property the District

owns.   Since then, Schock has lived     at   the   Camp,   served as   its   caretaker, and performed custodial
No. 46198 -6 -II



and maintenance -related duties in exchange for free rent and utilities and use of the Camp' s

facilities.   In 1971 or 1972, Schock discussed making improvements to the Camp with the

District' s business       manager,    Toney    Shelton.    Between 1971 and 1988, Schock made several


substantial improvements to the Camp. Shelton retired from the District in 1980 and died in 1986.

         In 1987, the District corresponded with Schock about his responsibilities and activities at

the   Camp    and   his   alleged agreement with      Shelton regarding the improvements.     The District' s


business manager asked Schock for a copy .of the agreement and any documentation of the

improvements Schock had actually             made.   Schock responded in January 1988, stating that he did

not have a copy of the agreement, explaining his understanding of his agreement with the District,

and   listing the   improvements he had         made.      Specifically, Schock described his agreement with

Shelton:


         1.   We will use the real estate appraisal method to reimburse improvements made.
         2. If for some reason the property is for sale, I have the first option to buy.

Clerk' s Papers ( CP)       at   91. Although Schock alleges that Shelton told him that the agreement was


noted in his personnel file, neither Schock nor the District ever located a written agreement.


         In February 1989, the District met with Schock to discuss its expectations of him as

caretaker     and   to    address   the issue   of compensation     for improvements.   In March 1990, the


District' s Superintendent Lillian Barna sent Schock a letter attempting to clarify Schock' s

responsibilities as caretaker and addressed Schock' s claim for compensation for the improvements:

         A review of information you have given the District also indicates that it is your
         position that Toney Shelton, a former business manager for the District, had agreed
         to allow you to receive the increased valuation of the property as a result of your
         efforts to improve it. Specifically, you claim the right to receive the increased value
         of the property due to your remodeling or construction of buildings on the land. I
         note, however, that the vast majority of the improvements were performed without
         the specific approval of the District. In fact, it appears that some occurred after you

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No. 46198 -6 -II



           had been told not to make additional changes to the property without specific
           authorization, such as the addition in 1987 or 1988 of barbed wire fences abutting
           the cabins. A review of our records and all of the information you have provided
           us to date about the alleged arrangement with Mr. Shelton does not substantiate
           your    claim.      Furthermore,     the records indicate that you have been amply
           compensated for your labor as well as materials which may have been used with
           District approval for improvements on the property. Therefore, I am denying your
           claim   for   reimbursement       based   on   the increased       value    to the property.          If you
           disagree with this determination, it should be raised with the Board of Directors
           within 30 calendar days or the District will consider the matter resolved.


CP   at   98 ( emphasis     added).    Schock appealed Barna' s decision to the District' s Board of Directors


 the Board)       and    the Board    denied his   appeal on      May   8, 1990.       Schock did not appeal from the


Board' s decision.


           In July 1990, in response to Schock' s appeal to the Board, Barna wrote Schock that if he

does not have any new information about his agreement with Shelton, the District " view[ s] your

claim     for   compensation    for improvements to the property               as closed."     CP   at   105.    Schock had a


final meeting with District officials in March 1991 to discuss their expectations of him as caretaker

and to address any of his concerns. At this meeting, Schock again raised the improvements issue,

but he did not have any new information about his agreement with Shelton.

           In November 2012, the District            gave   Schock   notice     to   vacate   by February       2013. In April


2013,     when     Schock did    not   leave, the District filed     a suit    for   ejectment and       to   quiet   title.   In his


answer, Schock argued that he had " superior ownership" in the Camp improvements and that the

 District lacks authority to           seek ejection until all preconditions          to   ejectment are met —          namely to

compensate         Schock for the Schock Improvements."              CP   at   8. Schock also counterclaimed on the


basis of several contract and quasi- contract theories, seeking $ 300, 000 in damages.




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No. 46198 -6 -II



         The District moved for summary judgment on its ejectment claim and Schock' s

counterclaims arguing that Schock' s counterclaims should be dismissed, in relevant part, because

either a    30 -day   or a   three -year   statute of   limitations bars Schock' s   counterclaims.   The superior


court agreed with the District. Schock appeals the superior court' s summary dismissal order.

                                                        ANALYSIS


                                               I. STANDARD OF REVIEW


           We review a trial court' s decision to grant summary judgment de novo. Lyons v. U.S. Bank

Nat' l Ass 'n, 181 Wn.2d 775, 783, 336 P. 3d 1142 ( 2014).              Summary judgment is appropriate only

where there is no genuine dispute as to any material fact and the moving party is entitled to

judgment     as a matter of      law. CR 56( c). A fact is material if it affects the outcome of the litigation.


Elcon Constr., Inc.        v.   E. Wash. Univ., 174 Wn.2d 157, 164, 273 P. 3d 965 ( 2012). We review the


facts in Schock' s favor as the nonmoving party and also make all reasonable inferences from the

facts in his favor. Lyons, 181 Wn.2d at 783.

              II. THE 30 -DAY STATUTE OF LIMITATIONS BARS SCHOCK' S COUNTERCLAIMS


           The District argues that Schock' s counterclaims are barred by the 30 -day appeal period

after a school    board'     s adverse     decision. We agree with the District that because Schock did not


appeal      within    30     days from the Board' s decision           denying his     reimbursement    claim,   his


counterclaims are barred.'




1 Even if we assume that the less onerous, three -year statute of limitations for oral contracts applies,
the undisputed facts establish that in 1990, the Board denied Schock' s claim for reimbursement
and   the   superintendent        told him the District considered his      claim closed.    Thus, the three -year
 statute of limitations would also bar Schock' s counterclaims filed in 2013.

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No. 46198 -6 -II


          The statute of limitations is an affirmative defense and is the District' s burden to prove as


the party asserting it. Young Soo Kim v. Choong -Hyun Lee, 174 Wn. App. 319, 323, 300 P. 3d 431

 2013).    The statute of limitations period begins to run when a party' s cause of action accrues and

a cause of action accrues " when         the party      has the      right   to apply to   a court    for   relief."   Kelly v.

Allianz Life Ins. Co. of N. Am., 178 Wn.              App.     395, 399, 314 P. 3d 755 ( 2013) (            citing Malnar v.

Carlson, 128 Wn.2d 521, 529, 910 P. 2d 455 ( 1996)), review denied, 180 Wn.2d 1004 ( 2014).


          Any person, or persons, either severally or collectively, aggrieved by any decision
          or order of any school official or board, within thirty days after the rendition of such
          decision or order ...  may appeal the same to the superior court of the county in
          which the school district or part thereof is situated.


RCW 28A. 645. 010( 1).        The   statute   is   a " clear   30 -day statutory limitation ...            on the time within


which an appeal must        be taken from     a school     board decision." Haynes v. Seattle Sch. Dist. No. 1,


111 Wn.2d 250, 251, 758 P. 2d 7 ( 1988). ""[              M] erely changing the name of the action [ to breach

of contract] will not be sufficient to permit plaintiffs to change the forum and consequently avoid

the time    limit for   appeal. '   Haynes, 111 Wn.2d               at   255 (   second alteration    in   original) (   quoting


Benson v. Roberts, 35 Wn. App. 362, 368, 666 P.2d 947 ( 1983)).

          From 1987 until 1991, Schock and the District corresponded extensively about his alleged

agreement with Shelton. In March 1990, Superintendent Barna sent Schock a letter summarizing

Schock' s position about his agreement with Shelton and unequivocally denying his claim.

However, Superintendent Barna offered Schock the opportunity to appeal her decision to the

Board: "    I am denying your claim for reimbursement based on the increased value to the property.

If you disagree with this determination, it should be raised with the Board of Directors within 30

calendar    days   or   the District   will   consider    the    matter resolved."         CP   at   98.    Schock appealed


Barna' s decision to the Board and on May 8, 1990, the Board also denied his claim. Under RCW

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No. 46198 -6 -II



28A. 645. 010( 1),     Schock had 30 days from the Board' s decision on May 8, 1990 to appeal to the

superior court. Because he did not appeal that decision, we hold that his 'counterclaims are barred.2

                                         III. SCHOCK' S CLAIM WAS NOT REVIVED


        Schock argues that the 30 -day statute of limitations does not apply because Superintendent

Barna " reopened" his claim when she offered to receive additional information about his claim in


July 1990. We disagree and hold that Schock' s claim was not reopened.

        A debt on which the statute of limitations has run may be revived if a new promise is made

 in   some   writing   signed   by the   party to be   charged   thereby." RCW 4. 16.280.

        In her last letter to Schock, Barna        asked, "   Do you have any other information which would

substantiate or    help   support your claim [ for compensation             for improvements]? If so, my staff will

review it. Unless such information is forthcoming, however, we view your claim for compensation

for improvements to the property            as closed."   CP     at   61.   Schock responded that he would search


for more information but never provided any. Barna acknowledged that Schock made a claim but

does not make a new promise to pay nor does she acknowledge that the District has any liability

to Schock.      His claim, therefore, was closed in 1990 after the Board' s denial and it was not

reopened nor revived.



         Because the undisputed facts establish that the Board denied Schock' s claim for


reimbursement in May 1990, the 30 -day statute of limitations in RCW 28A.645. 010( 1) bars his




2 Because we hold that Schock' s counterclaims are barred by the 30 -day statute of limitations, we
do not reach his remaining arguments.
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No. 46198 -6 -II



2013   counterclaims   as   a matter   of   law.   Accordingly, the trial court' s summary dismissal of

Schock' s counterclaims is affirmed.


        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.




 We concur:




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