IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 ROXANNE JONES,
                                                        DIVISION ONE
                         Appellant,
                                                        No. 78693-8-1
                    V.
                                                        UNPUBLISHED OPINION
 ROBERT BERECZ, M.D., and BRUCE
 KUHLMANN, D.0,
                                                        FILED: August 5, 2019
                         Res•ondents.

       DWYER, J. — Roxanne Jones appeals from the dismissal of her medical
malpractice claims against Dr. Robert Berecz and Dr. Bruce Kuhlmann. She

contends that the trial court erred when it concluded that her claims are barred by

the statute of limitation and dismissed her claims with prejudice. We disagree,

and now affirm.

                                              1

       In 1985, Jones received medical care from Dr. Berecz and Dr. Kuhlmann,

including a cholecystectomy.1 Subsequently, she came to suspect that the

doctors' treatment was improper and obtained a copy of her medical file. After

reviewing the file, she believed that the doctors had scammed her and performed

unnecessary surgery, prompting her to submit a complaint with the Washington

Medical Quality Assurance Commission (Medical Board) in 1994. As a result,




       1 A cholecystectomy is a surgical procedure to remove a gallbladder.
No. 78693-8-1/2


the Medical Board conducted an investigation of Dr. Kuhlmann, which concluded

two years later without discipline.2

        Then, on January 2, 2018, Jones filed a complaint in King County Superior

Court, asserting claims against Dr. Berecz and Dr. Kuhlmann premised on the

medical treatment she received from them in 1985.3 Therein, Jones alleged that,

in 1994, she saw the doctors'"dishonest scam" and "tried to turn them both in to

the WA Medical Disciplinary Board." In her complaint, Jones sought monetary

damages, demanded that the doctors be forced to undergo gallbladder surgery

performed on them "by a knife," and demanded that the doctors "receive prison

time for their crimes, never ever to practice medicine again upon the innocent

public."

        Dr. Berecz filed a motion to dismiss under CR 12(b)(6) for failure to state a

claim for which relief can be granted and Dr. Kuhlmann filed a motion to dismiss

on summary judgment. After oral argument, the trial court granted both motions

"because the statute of limitations has run" and dismissed all of Jones's claims

with prejudice.

        Jones appeals.

                                                II

        Jones appears to contend that the statute of limitation has not yet run on

her claims against Dr. Berecz and Dr. Kuhlmann because the statute of limitation



        2 The   Medical Board took no action against Dr. Berecz.
        3 In  her complaint, Jones asserts that she attempted to file this lawsuit in the Thurston
County Superior Court in 2011, but was "blocked" from doing so. The record, however, indicates
that the suit she attempted to file in Thurston County was directed against the Department of
Health, not Dr. Berecz and Dr. Kuhlmann individually.


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No. 78693-8-1/3


was permanently tolled when Dr. Berecz and Dr. Kuhlmann engaged in

deliberate fraud and concealment.4 We disagree.

       We review de novo dismissals for failure to state a claim for which relief

can be granted pursuant to CR 12(b)(6). Wash. Trucking Ass'ns v. State Emp't

Sec. Dep't, 188 Wn.2d 198, 207, 393 P.3d 761 (2017). "Under CR 12(b)(6),

dismissal is appropriate only when it appears beyond doubt that the claimant can

prove no set of facts, consistent with the complaint, which would justify recovery."

San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d 831

(2007). On review, we presume "the truth of the allegations [of the complaint]

and may consider hypothetical facts not included in the record." Wash. Trucking

Ass'ns, 188 Wn.2d at 207.

       Similarly, we review summary judgment rulings de novo. Lyons v. U.S.

Bank Nat'l Ass'n, 181 Wn.2d 775, 783, 336 P.3d 1142 (2014). On review, we

engage in the same inquiry as the trial court, viewing the evidence in the light

most favorable to the nonmoving party. Lyons, 181 Wn.2d at 783. "Summary

judgment is appropriate only if the record demonstrates there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law."

Lyons, 181 Wn.2d at 783.

        RCW 4.16.350 provides:

               Any civil action for damages for injury occurring as a result of
        health care which is provided after June 25, 1976.. .



        4 In her briefing on appeal, Jones also appears to assert that the Medical Board engaged
in improper conduct on numerous occasions and that criminal charges must be brought against
the two doctors. None of these allegations have any bearing on whether the statute of limitation
has run on Jones's claims against Dr. Berecz and Dr. Kuhlmann.


                                                   3
No. 78693-8-1/4


               (3). . . shall be commenced within three years of the act or
        omission alleged to have caused the injury or condition, or one year
        of the time the patient or his or her representative discovered or
        reasonably should have discovered that the injury or condition was
        caused by said act or omission, whichever period expires later.

        In cases of fraud or concealment the limitation period is also tolled until

the patient "has actual knowledge of the act of fraud or concealment" at which

point the patient "has one year from the date of the actual knowledge in which to

commence a civil action for damages." RCW 4.16.350(3). The "discovery" rule

set forth in RCW 4.16.350 tolls the running of the statutory limitation period until

the plaintiff has knowledge of the factual basis for an action, regardless of

whether the plaintiff has knowledge of the legal basis for an action. Adcox v.

Children's Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 35, 864 P.2d 921

(1993).

        Jones's complaint asserts that Dr. Berecz and Dr. Kuhlmann fraudulently

provided improper medical treatment to her in 1985. It is thus apparent that,

unless the statutory limitation period was tolled, her claims have long since

passed their expiration date under RCW 4.16.350. Jones, however, appears to

assert that the statutory limitation period has been permanently tolled because

the doctors engaged in fraud.5 But even if true, Jones also admitted, in both her



        5 In her reply brief, Jones quotes extensively from Duke v. Boyd, 133 Wn.2d 80, 942 P.2d
351 (1997), presumably, although she never states this, for the proposition that fraud or
concealment on the part of the doctors permanently tolled the statutory limitation period on her
claims. Regardless of whether Jones could actually prove fraud, Duke is no longer applicable. In
Duke, the court interpreted a long outdated version of RCW 4.16.350, wherein there was no one
year discovery period for the commencement of actions when the plaintiff proves fraud or
intentional concealment. 133 Wn.2d at 85; former RCW 4.16.350, LAWS OF 1988, ch. 144, § 2.
Less than a year after Duke, however, the legislature amended the statute to provide for a limited
(one year) time period from the date of the discovery of fraud or concealment to commence a civil
action. LAWS OF 1998, ch. 147,§ 1.


                                                    4
No. 78693-8-1/5


complaint and during oral argument before the trial court, that she was aware of

the alleged fraud and her alleged injuries back in 1994, when she filed a

complaint about Dr. Berecz and Dr. Kuhlmann with the Medical Board.

Furthermore, Jones provided to the trial court, in a filing entitled "Declaration of

Atrocities Committed by Robert Berecz MD and Bruce Kohlmann DO upon

Roxanne Jones, Pro Se," the complaint letter that she sent to the Medical Board

in 1994, in which she complains about her 1985 gallbladder surgery. It is clear

that Jones knew about Doctors Berecz and Kuhlmann's allegedly fraudulent

surgery in 1994, given that she filed a complaint about it with the Medical Board.

Therefore, it follows that the limitation period on her claims expired, at the latest,

in 1995.6 See RCW 4.16.350(3). The trial court did not err by dismissing Jones's

claims.

                                                 III

         Dr. Berecz and Dr. Kuhlmann seek an award of attorney fees and costs on

appeal. The doctors assert that they are entitled to fees and costs for this appeal

pursuant to RAP 18.9, as a sanction on Jones for filing a frivolous appeal. We

agree.

       "RAP 18.9(a) permits an appellate court to award a party attorney fees as

sanctions, terms, or compensatory damages when the opposing party files a




         6 Jones also appears to askrt that she became disabled in 1996 as the result of a car
accident, and that this also tolled the statutory limitation period. But the limitation period had
already run in 1995, prior to Jones's accident. Therefore, even if she was disabled and such
disability tolled any limitation periods for claims she might wish to pursue following the end of her
disability, such status would have had no impact on the already expired limitation period for her
claims against the doctors.


                                                       5
No. 78693-8-1/6


frivolous appellate action."' Advocates for Responsible Dev. v. W. Wash. Growth

Marnt. Hearings Bd., 170 Wn.2d 577, 580, 245 P.3d 764(2010)(citing Reid v.

Dalton, 124 Wn. App. 113, 128, 100 P.3d 349 (2004)). "An appeal is frivolous if,

considering the entire record, the court is convinced that the appeal presents no

debatable issues upon which reasonable minds might differ, and that the appeal

is so devoid of merit that there is no possibility of reversal." Advocates for

Responsible Dev., 170 Wn.2d at 580 (citing Tiffany Family Trust Corp. v. City of

Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005)).

        Jones's appeal is plainly frivolous. She raises no debatable issues on

appeal, the statutory limitation period on her claims having plainly expired well

over 20 years ago. She cites to no applicable Washington authority in her

briefing to support her apparent contention that the limitation period has not yet

run. Her appeal is so totally devoid of merit so as to warrant the imposition of

sanctions under RAP 18.9.8 Upon proper application, a commissioner of this




        7 RAP    18.9(a) states in full:
         The appellate court on its own initiative or on motion of a party may order a party
         or couRsel, or a court reporter or authorized transcriptionist preparing a verbatim
         report of proceedings, who uses these rules for the purpose of delay, files a
         frivolous appeal, or fails to comply with these rules to pay terms or compensatory
         damages to any other party who has been harmed by the delay or the failure to
         comply or to pay sanctions to the court. The appellate court may condition a
         party's right to participate further in the review on compliance with terms of an
         order or ruling including payment of an award which is ordered paid by the party.
         If an award is not paid within the time specified by the court, the appellate court
         will transmit the award to the superior court of the county where the case arose
         and direct the entry of a judgment in accordance with the award.
         8 Jones appears to assert that we may not award fees against her because we waived
her fee file this appeal. She cites to no authority to support such a proposition. RAP 18.9
        to
clearly authorizes the awarding of fees and costs as a sanction for the filing of a frivolous appeal,
and it does not condition such an award on whether an appellant was required to pay a filing fee.
A claim of indigence is not a defense to appellate misconduct.


                                                     6
No. 78693-8-117


court will enter individual orders awarding Dr. Berecz and Dr. Kuhlmann their

reasonable attorney fees and costs on appeal, consistent with this opinion.9

       Affirmed.




WE CONCUR:




         9 The award of fees to Dr. Kuhlmann should be commensurate with the one page brief
filed by Dr. Kuhlmann's counsel, which simply joined in the briefing submitted by Dr. Berecz's
counsel.


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