John R. Toney v. Lewis County
76030-1
| Wash. Ct. App. | Jan 30, 2017Background
- In April 2015 Toney sought to garnish $622.55 awarded earlier from Lewis County District Court; clerk refused to issue garnishment.
- On April 15, 2015 Toney presented a $1,000,000 tort claim to the Lewis County Risk Manager under RCW 4.96.020.
- Thirty-one days later (May 15, 2015) Toney served a summons and complaint on the County, District Court, and staff; he did not wait 60 days before commencing the action.
- All sitting Lewis County superior judges recused; Judge Michael H. Evans of Cowlitz County was assigned as a visiting judge and heard the County’s summary judgment motion in Cowlitz County.
- The trial court granted summary judgment for the County, dismissing Toney’s complaint for failure to comply with the 60-day statutory waiting period; Toney appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Visiting judge authority | Judge Evans lacked authority because no request to appoint him was on the record | Presumption that visiting judge was properly requested; Holmes/Hawkins controlling | Presumption applies; Toney offered no evidence to rebut it — claim rejected |
| Hearing venue in Cowlitz County | Hearing and decision in Cowlitz were unauthorized because Toney did not consent | County relied on assigned visiting judge’s authority; full presentation occurred | Hearing outside county was irregular but error without prejudice; no reversal required |
| Service form signed by named defendant (Fine) | Service was improper because CR 4(c) forbids service by a party | CR 5 governs service of other papers; CR 5 does not incorporate CR 4’s restriction — Fine’s signature permissible for CR 5 service | CR 4 prohibits party service of summons, but CR 5 permits service of other papers by parties; Fine’s certificate did not render service invalid |
| Dismissal for commencing suit before 60 days (RCW 4.96.020(4)) | Substantial compliance applied (per RCW 4.96.020(5) and Lee) or County had effectively denied claim | County argued strict/noncompliance bars suit absent proof claim was investigated/decided within 60 days | Even assuming substantial-compliance framework, Toney failed to show the County completed its evaluation; dismissal affirmed |
Key Cases Cited
- State v. Holmes, 12 Wn. 169 (applying presumption that acts of de facto judicial officers are regular)
- State v. Hawkins, 164 Wn. App. 705 (confirming Holmes remains controlling on visiting-judge record requirement)
- Medina v. Pub. Util. Dist. No. 1 of Benton County, 147 Wn.2d 303 (holding substantial-compliance doctrine inapplicable to RCW 4.96.020(4) time requirement)
- Lee v. Metro Parks Tacoma, 183 Wn. App. 961 (holding 60-day waiting period may be procedural and subject to substantial compliance)
- Putnam v. Wenatchee Valley Medical Ctr., P.S., 166 Wn.2d 974 (distinguishing procedural vs. substantive requirements)
- Waples v. Yi, 169 Wn.2d 152 (treating statutory waiting periods as procedural in medical-malpractice context)
- Renner v. City of Marysville, 168 Wn.2d 540 (defining substantial compliance as bona fide attempt that accomplishes statute’s purpose)