Appendix — Nave v. City of Seattle

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APPENDIX “A”

In THE SupREME Court OF THE STATE OF WASHINGTON

CHARLES A. Nave, Appellant, No. 38144

v.

THE Crry oF SEATTLE, D epartment One

Respondent.\. Filed June 9, 1966

WARD, J.!— The initial incident which gave rise

to this action occurred on December 20, 1961, at which

time the plaintiff Charles A. Nave was arrested and

charged with the violation of a traffic ordinance of

the City of Seattle. He was also charged with resist-

ing arrest in violation of another city ordinance. A

somewhat detailed recital of the facts resulting ia Mr.

Nave’s arrest are set out in the opinion of this court

in Seattle v.. Nave, 62 Wn.2d 446, 383 P.2d 491 (1963).

Mr. Nave was convicted in the City of Seattle Mu-

nicipal Court on both charges. He appealed to the

Superior Court of King County and, on a trial de

novo before the court sitting without a jury, was con-

- victed again on both charges. On appeal to this court,

however, the judgment and sentence on both charges

_ Was reversed and .the city’s complaint against Mr.

Nave was dismissed. The remittitur from the supreme

1Judge Ward is serving a as a judge pro te tempore of the Supreme Court pur-

moamah te bat A & Olea lammanaoenants Of cbata nanch*aham

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court was filed on September 13, 1963.

On December 6, 1963, the plaintiff filed a claim

_ against the City of Seattle with the city clerk, followed

by a supplemental claim on December 10, 1963.

On February 10, 1964, plaintiff commenced action

seeking recovery of damages from the City of Seattle

in the sum of $3,355,200, and “additional general dam-

ages.as due him, computed at the compounded month-

ly rate of (10) ten percent on the $3,355,200 for each

additional month from December 20, 1963, till the date

of final settlement.” —

Both Mr. Nave and the City of Seattle filed a de-

mand for a jury triai and the case was assigned for

trial on January 27, 1965. Before trial date, the City

of Seattle presented to the court its motion for sum-

mary judgment seeking dismissal of the plaintiff’s

action solely on the contention that the plaintiff’s

claim against the city was not filed within 90 days as

- required by ROW 35.31.010.! |

The city’s motion: for summary judgment was

granted and an order and memorandum decision in

1The pertinent portion of Laws of 1957, chapter 224, § 2, in effect when

' the motion for summary judgment-was heard, follows:

“All claims for damages against any city of the first class must be filed with

the city clerk or other proper officer within ninety days from the date that

the damage occurred or the injury was sustained: Provided, That claims

for damages arising from an alleged defective sidewalk must be filed

within thirty days from the date e damage occurred or the injury was

t : hy ,

.

PROPONENT GB OL yo ME MO —

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writing was filed on January 25, 1965, dismissing the

plaintiff’s action, -from which this appeal is taken.

It is the plaintiff ’s contention that his claim for —

damages was timely filed. The governing statute re-

quires that a claim for damages be filed within 90

days “from the date that the damage occurred or

the injury was sustained.”’ Plaintiff claims that his

injury and damage continued up to the date the re-

- mittitur was filed in King County on September 13,

1963, and that the filing of his claims on December 6

and December 10, 1963, was therefore timely.

The plaintiff has asserted several times in his brief

and in oral argument that he does not predicate his

-. claim against the city on any theory of malicious

prosecution.”

If the plaintiff had been able to maintain his action,

as one for malicious prosecution, the claim against

the city would have been timely filed.

Ordinarily an action for malicious prosecution

accrues at, and limitations run from, the time of

termination of the proceedings. An action for false.

' imprisonment accrues at, and the statute of lim-

itations runs from, the termination of the im-

2It is stated in plaintiff's brief: Re. py ee” took particular care that “Mali-

cious Prosecution” not be alleged. Appellant also took particular care not

to allege: ‘that the proceedings terminated on the merits in favor of the

plaintift’ Appellant did not allege “Malicious Prosecution” for the very

reason given in Judge Wright's definition of it as set out in his Memo-

randum Decision: “begin in malice without probable cause to believe it

can succeed, and finally ends in failure.’”

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prisontient, 54 OJ. 1. Limitations of Actions §

175, p. 144.

Neither may he rely on a claim of unlawful arrest

and be held timely in the filing of his claim. A case

which is factually very similar to the case sub judici

is Belflower v. Blackshere, 281 P.2d 423 (Okla.), 49

A.L.R.2d 917 (1955). There, the issue was whether the

_ eause of action accrued when the arrested person was

released on bail, or upon the final dismissal of the

criminal charges against him. The court concluded

that the cause of action accrued on the date of his

- release on bail. This case is followed by an annota-

- tion, 49 A.L.R.2d 922 ‘‘When statute of limitations

begins to run against action for false imprisonment

or false arrest.’’ The rule of the Oklahoma court finds

almost unanimous support in jurisdictions which have

considered the question.

See, Mobley v. Broome, 248 N.C. 54, 102 S.E.2d 407

(1958), and Jedzierowski-v. Jordan, 157 Me. 352, 172

_ A.2d 636 (1961), and Annotation, 25 A.L.R. 1518.

The plaintiff insists, however, that his claim is

based, not primarily upon the illegal arrest of De-

cember 20, 1961, but rather upon ‘‘misuse of office

and/or abuse of process’’ on the part of the city of-—

ficials of the City of Seattle. He itemizes in his brief

15 acts which he claims constitute such abuse of pro-

cess. This series of acts begins with his unlawful

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arrest on December 20, 1961, runs the full gamut of ©

the intervening litigation, and concludes with No. 15

“using material in this court which it knew to be false

- as it asked this court to affirm thet conviction that it

_knew to be wrong.”’ Plaintiff does not set out the date

of act No. 15, but we find that the former appeal in

Seattle v. Nave, supra, was argued in this court on

February 5, 1963. The plaintiff concludes, however,

that his injury was a ‘‘Continuous Accelerating In-

vasion of His Rights’’ and that actionable injury was:

sustained by him up to September 13, 1963. We do

not agree.

Even if we should assume that No. 15, above, is an

. act constituting abuse of process, the plaintiff does

not claim any act of injury done to him by the city

subsequent to February 5, 1963. Betwéen that date

and September 13, 1963, while awaiting the decision

of the supreme court, the plaintiff no doubt suffered

‘anxiety ranging upward to mental suffering. But

mental suffering following injury is not a continuing

form of damage which tolls the accruing of a cause of

action.

An action for-abuse of process has been held to

come within the provisions of a statute of limi-

tations applicable to ‘‘injuries done to the per-

son.’’ The statute begins to run against such an

action from the termination of the acts which —

constitute the abuse complained of. (Italics ours.)

1 Am. Jur.2d Abuse of Process § 24, p. 269.

SONA ii Ratt iA bb aan rote a thet :, vite

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The cause of action for abuse of process is com-

plete as soon as the acts complained of are com-

mitted. The remedy for a malicious use of process,

however, is not available until the termination of

‘the original eee 72 C.J.S. Process §, 124e,

p. 1199.

* See, also, 72 C.J. S. Process § 119, p. 1188; 14 comeen

2d 322.

Malicious use of process is essentially the same as

an action for malicious prosecution. Golden Commis-

sary Corp. v. Shipley, 157 A.2d 810 (D.C. Mun. Ct.

of Appeals 1960).

Inasmuch as the plaintiff recites no act of misuse .

_ of office and/or abuse of process on the part of any

his filing of ¢laim in December, 1963, was untimely.

city representative subsequent to February 5, 1963,

The trial court was correct in its determination that

plaintiff’s claim against the.city was not timely filed

and in granting dismissal upon motion for summary

judgment. 7

The plaintiff claims his right to a jury trial guaran-

teed in civil actions under U.S. Const. amend. 7, and

by Wash. Const. art. 1, § 21 were infringed by the |

summary judgment proceedings. |

This exact contention was before the United States

| Court of Appeals, 7th circuit, in Umted States v.

‘Stangland, 242 F.2d 843 (7th Cir. 1957) and was re-

a ee ee ee nen ee an oe ee

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jected upon the authority of the decision of the United

States Supreme Court in Fidelity « Deposit Co. of

Maryland v. United States, 187 U.S. 315, 47 L. Ed.

194, 23 Sup. Ct. 120 (1902). This court has adopted

the same reasoning in proceedings where there are no

issues of facts to be determined by the jury. In re

Brandon v. Webb, 23 Wn.2d 155, 160 P.2d 529 (1945).

Plaintiff’s further assignment of error presents a -

novel and interesting legal theory. Article 4 § 24 of

the Charter of the City of Seattle provides:

No action shall be maintained against the city

for any claim for damages until the same has

been presented to the city council and sixty days

have elapsed after such presentation.

It is plaintiff’s contention that, during such 60-day

period, the city had a duty to point out to the claim-

ant any legal defect with respect to the filing of his

claim, and that if the 60-day period passes without

such affirmative action on the part of the city, it may

not thereafter raise the issue of timeliness. The plain-

tiff does not cite any legal support for this contention

_- and we are unable to find any.

The judgment is affirmed.

‘Warp, J .. Pro Tem.

WE Concur:

RosELLINI, C. J.

Huu, J.

Ott, J.

Hunter, J.