Brandon Welch v. City Of Burlington

• Court: Court of Appeals of Washington
• Decided: October 22, 2018
• Docket: 76771-2
• Status: Unpublished

Opinion

lN THE COURT OF APPEALS OF THE STATE OF WASH|NGTON

BRANDON VVEI_CH, a singie man,

No. 76771~2~| Responc|ent,

DiV|SlOl\i ONE v.

ROGER R. BOARDMAN, a Single man,

and UNPUBL|SHED OP|N|ON

C|TY OF BURLINGTON, a municipal corporation,

FlLED: October 22, 2018

Petitioner.

) ) ) ) ) ) ) ) Defendant, ) ) ) ) ) ) ) ) l

SlviiTr-i, J. -- The city of Buriington (City) seeks discretionary review of the trial oourt's order denying its motion for summary judgment and holding that the City Was properly served Because Brandori Welch did not serve the mayor, the city cierk, or the mayor's designated agent for acceptance ot service, as required by RCW 4.28.080(2), the trial court erred in denying the City's motion for summary iudgment. On appea|, Welch presents several alternative legai theories of personai jurisdiction on Wnich We can affirm the trial court's order denying summary judgmentl including the discovery ruie1 waiver and estoppel1

and the toliing of the statute of limitations But, Welch is not abie to establish

NO. 76771-2-|/2

personal jurisdiction on any of these bases. Therefore, We reverse and direct the trial court to enter summary judgment in favor of the City. FACTS

On August 15, 2013, Welch’s motorcycle coiiided with Roger Boardnian’s car in an intersection in the city of Burlington. in Septernber 2013, V\leich sued Boardman for negligence in November 2013, the trial court granted partial summary judgment against Boardman on the issue of liabilityl

According to a declaration filed by VVelch’s attorney, in .iuly or August 2015, the attorney e-maiied both are amended complaint and a proposed agreed order to arnend the compiaint to Boardman’s attorney The amended complaint alieged that the City negiigeht|y designed and maintained the intersection where the accident occurred Boardman’s attorney maiied the proposed order with his signature to Weich’s attorney and VVeich’s attorney then secured an order from the court allowing the amended compiaint to be filed. `l'he amended complaint Was filed with the court on August 26, 2015.

On August 31, 2015, Welch served the summons and amended complaint on the city administrator. The City filed an answer on October 29, 2015, stating, “P|aintiff has faiied to property serve the Surrimons and Corhplaint upon Defendant City as required by the iaws of the State of Washington and therefore the court has no jurisdiction over the City." Cieri<’s Papers at 80.

On January 18, 2017, the City rnoved for summary judgment arguing that V\Ieich faiied to properly serve the mayor or the city clerk, as required by statute,

within the statute of limitations Ori January 24, 2017, Welch served the mayor

NO. 7677‘!-2-1/3

With the summons and amended complaint at his home address Weich served the city clerk with the summons and amended compiaint on February 1, 2017.

in opposition to the City’s motion for summary judgment, We|ch argued that summaryjudgment was not proper for severai reasons. First, he argued that the statute of iimitations was tolled by RCW 4.16.170. Second, he argued that the statute of limitations did not expire because his cause of action against the City did not accrue until Aprii 2014, when he iearned of the negligent design of the intersection Third, he argued that he complied with RCW 4.28.080(2) because the city administrator was designated by the mayor and the city council to accept “compiaints” under Buriington i\/lunicipai Code (Bi\/iC) 2.08.030. Fourth, he argued that the City was estopped from asserting insuchiency of service because the city administrator accepted service in this case and previous cases without objection Fina|iy, he argued that the City waived any objection to service ot process because it engaged in discovery before moving for summary judgment

The trial court denied the City’s motion for summary judgment because “service on the city was effectuated when the city administrator was served." _i_d__.. at 491. The court aiso heid that “there [was] no waiver or estoppei arising from the City’s actions in such prior cases, as the City alleged insufficiency of service in its answer in this matter." jig_._ The trial court denied the City’s motion for reconsideration lt then certified the issue of sufficient service of process as

reviewable under RAP 2.3(b)(4). VVe granted discretionary review.

NO. 76771-2»1/4

ANALYSlS Mavor’s _Desionated Agem‘ for Service of Summons

The City argues that the triai court erred in denying its motion for summary judgment because the BMC 2.08.030 does not designate the city administrator as the mayor’s agent VVe agree and hold that service on the city administrator cannot be the basis for personal jurisdiction over the City.

The construction of a city ordinance is a question of iaw reviewed de novo. Seatt|e l-tous. Agth. v. City of Seattie, 3 Wn. App. 2d 532, 538, 416 P.3d 1280 (2018) (citing S|easman v. Citv of Lacev. 159 Wn.2d 639, 642-43, 151 P.3d 990 (2007)). “"i”he same rules of statutory construction apply to the interpretation ot municipal ordinances as to the interpretation of state statutes.’" § (quoting Ly of Seattie v. Green, 51 Wn.2d 871, 874, 322 P.2d 842 (1958)). in interpreting a statute, this court's fundamental objective is to ascertain and carry out the |egisiature’s intent. lVlanaLy v. Anderson, 176 Wn.2d 342, 350-51, 292 P.3d 96 (2013) (citing Dep’t of Ecoiogv v. Cam;)beil & Gwinn, i_LC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)). “Statutory interpretation begins with a statute’s plain meaning.” § at 352. The plain meaning "is to be discerned from the ordinary meaning of the ianguage at issue, the context of the statute in which that provision is found, reiated provisions, and the statutory scheme as a whole." State v. Engei, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009). The court may use a dictionary to discern the plain meaning of an undefined statutory term Nissen v. Pierce _C_;_o_g_r_i_ty, 183 Wn.2d 863, 881, 357 P.3d 45 (2015) (citing i~iomeStreetl inc. v.

Dep‘t of Revenue, 166 Wn.2d 444, 45‘i, 210 P.3d 297 (2009)). in determining

No. 76771-2-¥/5

the plain meaning of a statute, the court “must not add words where the legislature has chosen not to include them." Rest. Dev., lnc. v. Cananwii|, inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003). if the statute is unambiguous1 the court’s inquiry is atari end. State v. Arrnendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

RCW 4.28.080 provides the method for serving an incorporated city:

Service made in the modes provided in this section is personal

service. The summons sha|i be served by delivering a copy

thereof, as follows:

(2) if against any town or incorporated city in the state, to the

rnayor, city manager, or, during normal office hours, to the mayor’s

or city manager's designated agent or the city clerk thereof “VVhen a statute designates a particular person or ofticer upon whom service of process is to be made in an action against a municipaiity, no other person or officer may be substituted." Meadowdaie Neigh. Comm. v. Citv of Edmonds, 27 Wn. App. 261, 264, 616 P.2d 1257 (1980) (citing 56 Aivi. JUR. 20 lViunicipal Corporations, Counties, and Other Politica| Subdivisions § 854 (1971); 64 C.J.S. i\/lunicipa| Corporations § 2205(0)(3) (1950)).

The City does not have a city manager, so under this statute, a party must serve either the mayor or, during normai office hours, the mayor’s designated agent or the city clerk. The mayor testified that he had “not deiegated the

authority to receive service of process on behalf of the City ot Burlington to any

City official not specified in RCW 4.28.060(2).”1 C|erk’s Papers at 121-22. Here,

1 Weich moved to strike this deciaration and other citations in the City’s opening brief. Because he did not object to the admission of the mayor's declaration on summary judgment, we deny his motion to strike it on appeal.

NO. 76771-2-|/6

VVe|ch served the city administrator on August 31, 2015, But he did not serve the mayor or the city clerk until January 2017, after the statute of limitations expired On summary judgment, Welch argued that the city administrator is the mayor’s designated agent under BlV|C 2.08.030, Which states: lt shall be the responsibility and duty of the administrator to:

C. Assist the mayor in day-to-day operations which sha|i inciude the handiing of complaints and talking with the public.

Nl. investigate and make recommendations to the city councii and mayor on all complaints referred to him/her and or received by him/her concerning city business (Emphasis added.) The trial court interpreted the term “compiaints" in section C above to inciude a compiaint in the legai sense: Under the handling of complaints l would think that a compiaint is a complaint And that the city administrator handies compiaints. And he can be the guy you hand the compiaint to. And when you do you’ve served the City of Burlington. Report of Prooeedings (Feb. 16, 2017) at 26. Here, there are no genuine issues of material fact. The issue is legai:

whether BlVlC 2.08.030 designates the city administrator as the mayor's agent for

accepting a summons under RCW 4.28.080(2). We hold that it does not.

Bonnevi|le v. Pierce Countv, 148 VVn. App. 500, 509l 202 P.3d 309 (2008) (“lf a party fails to object or bring a motion to strike deficiencies in affidavits or other documents in support of a motion for summary judgment, the party Waives any defects.") (citing Smith v. Showa|ter, 47 Wn. App. 245, 248, 734 P.2d 928 (1987)). We also deny Welch’s motion to strike the City’s citations to an unpublished case and the City of Kirl

NO. 76771-2-|/7

BlV|C 2.08.030 does not include any reference to “service,” “summons," or “designated agent"--the key terms in RCW 4.28.080(2). The only term that it includes is “comp|aints,” which is not used in RCW 4.28.080(2). “Complaint” is not defined in Titie 2 of the BNiC. But BlV|C 1.04.030 explains how Words in the

code should be interpreted:

A|l words or phrases shall he construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the iaw shall be construed and understood according to such pecuiiar and appropriate meaning

“Complaint" can have a technical meaning within the law, and its dictionary definition includes that meaning:

‘t a cbs ; a cry or ioud utterance or series of utterances of pain, rage, or sorrow : grieved or sorrowful outcry b : a formerly popular poem that iaments or protests unrequited love or tells of personal misfortune, misery, or injustice c : the act or action of expressing protest, censure, or resentment : expression of injustice . . . d : formal allegation or charge against a party made or presented to the appropriate court or officer (as for a wrong done or a crime committed) and variously applied (as to the initial bill in proceedings in equity, the declaration in a common-law pleading, the statement of claim under the English practice acts, and the initial pleading under the code practice in various states of the U.S.) 2 a : something that is the cause or subject of protest or grieved outcry . . . b : an ailment or disease of the body.

VVEssTER’s Ti-iino NEW lNTERNATioNAL DicTioNARY at 464 (2002) (emphasis added). But where the code acknowledges that it will interpret technical terms based on their peculiar meaning, it is important that BlViC 2.08.030 does not use the technical terms of “surnmons,” “designated agent" or “service of process.” Use of the word “complaint” alone does not convey a particular technical

meaning such that the city administrator may accept service of summons on

NO. 76771-2-|/8

behalf of the mayor as his designated agent. ln fact, the code only states that the city administrator may “handl[e]," “[i]nvestigate," and “rnak[e] recommendations” regarding “cornpiaints." BlV|C 2.08.030. None of these terms are the plain language equivalent of being the mayor’s designated agent for acceptance of service of process on his behaif. Therefore, based on its piain language, BlV|C 2.08.030 does not designate the city administrator as the mayor's agent for purposes of accepting a summons We hold that service on the city administrator did not effect personal jurisdiction on the City and that the trial court erred in holding that it did.

Weich argues that the term “city manager" in RCW 4.28.080(2) is ambiguous because it is not defined in the statute and, therefore1 it could mean “city administrator.” i-le bases this argument on the fact that the term is not capitaiized, but he faiis to cite any legal authority supporting this interpretation. Cowiche Canvon Conservancv v. §osiev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (argurnents that are not supported by any citation to authority need not be considered) (citing RAP 10.3(a)(5); lVchee v. Am. l-lome Prods. Corp_u 113 Wn.2d 701, 705, 782 P.2d 1045 (1989)). But, the piain language of RCW 4.28.080(2) says service must be on the “rnayor," the “city manager,” or the “city clerk.” This ianguage is not ambiguous, and We hold that it cannot be interpreted to include the “city administrator.”

Welch argues that an aitemative form ot service is acceptable under RCW 4.28.080(2) because the City is run by part-time officials l-ie relies on

Skinner v. Civii Service Commission of Citv of i\lledina, 168 Wn.2d 845, 853, 232

NO. 76771-2-i/9

P.3d 558 (2010). But Skinner is distinguishable ln that case, the issue was

whether or not Skinner property served the City of i\lledina Civii Service

Commission with the notice of an appeal under RCW 41.12.090, which states: Such appeal shall be taken by serving the commission, within thirty days after the entry of such judgment or order, a written notice ot appeai, stating the grounds thereof, and demanding that a certified transcript of the record and of ali papers on file in the office of the

commission affecting cr relating to such judgment or order, be filed by the commission with such court.

(Emphasis added.) The Supreme Couri determined that Skinner substantially complied with this statute by leaving copies of the notice cf appeal with the city clerk. _l_g_._ at 856. lt held that “Where the Cornmission’s office address (at which a notice of appeal must be served) contains no office or Cornmission staff and the municipality is relatively small, . . . Skinner’s service on the city clerk, located at that address, was reasonably calculated to give notice to the Comrnission.” jnchL i-lere, the statute at issue is RCW 4.28.080(2), not RCW 41 .12.090. ln i\.lleadowdale, this court explicitly held that substantial compliance is not enough to satisfy RCW 4,28.080(2). Nleadowdale, 27 Wn. App. at 264 (“When a statute designates a particular person or officer upon whom service of process is to be made in an action against a municipality, no other person or officer may be substituted.”) (citing 56 Am. Jur. 2d l\/lunicipal Corporations, Counties. and Other Political Subdivisions § 854 (1971); 64 C.J.S. l\/lunicigal Corporations § 2205(c)(3) (1950)). “[Tjhe doctrine of substantial compliance is inappiicable

when the issue is whether service of process has been valid so as to subject a

municipality to the court’s jurisdiction.” ld.

NO. 76771-2-!/10

Furtherrnore, the Supreme Court distinguished RCW 4.28.080(2) from another service statute, RCW 10.95.040, in State v. Ctark, 129 Wn.2d 805, 920 P.2d 187 (1996). That case involved service of a death penalty notice Ed_. at 810. The defendant argued that personai service under RCW 4.28.080 Was required, but the Suprerne Court disagreed !d_. at 813_ it distinguished cases involving that statute, including l\/leadowdale, and held that because RCW 10.95.040 did not require “personal” service and because RCW 4.28.080 applied to service of original process, those cases were not persuasive td_. at 813-14.

The same reasoning can be used to distinguish Skinner from this case

RCW 41.12.090, the statute at issue in Skinner, does not require personai

servicel and it does not appty to service of originai process. therefore the

Supreme Court's holding in Si

Rcw 4.28.080(2).

in its amicus curiae brief, the Washington State Association ot Nlunicipat Attorneys argues that RCW 4.28.080(2) should be interpreted to allow only the mayor and not the city council to designate an agent who can accept service ot summons on the mayor's behalf. Under this argument, the council, in passing BiVlC 2.08.030, did not have the authority tc designate the city administrator as the mayor’s agent Because we hoid that the piain language of BlVlC 2.08.030 does not designate the city administrator as the mayor’s agent for accepting

service ot a summons, we need not reach this argument

NO. 7677‘! -2-i/11

in conciusion, Welch did not obtain personal jurisdiction over the City within the statute of limitations by serving the city administrator rather than the mayor or the city clerk, as required by RCW 4.282.080(2). `l'he trial court erred in concluding that BlV|C 2.08.030 designated the city administrator as the mayor's agent for acceptance ot a summons, and remand is necessary.

The Discoverjy Rule

Weich argues that he served the mayor and the city clerk within the statute of limitations because his negiigence claim against the City did not accrue until he discovered defects in the road design through an expert's report We disagree

“‘The general rule in ordinary personal injury actions is that a cause of action accrues at the time the actor omission occurs.’" Funkhouser v. V\l‘i|son, 89 Wn. App. 644, 666, 950 P.2d 501 (1998) (quoting ln re §states ot Hibbard, 118 Wn.2d 737, 744, 828 P.2d 690 (1992)), att'd j_n_ part and remanded sub horn. C.J.C. v. Corp. of Catholic Bishop of Yakima. 138 Wn.2d 699, 985 P.2d 262 (1999). Butl as an exception to this rule, the discovery rule can apply when a delay occurs between the time of an injury and the plaintift’s discovery of that injury Giraud v. Quincv Farm & Chem.. 102 Wn. App. 443, 449, 6 P.3d 104 (2000) (citing Crisman v. Crisrnan, 85 Wn. App. 15, 20, 931 P.2d 163 (1997)). The discovery rule tolis the date of accrual of the action “until the ptaintift knows or, through the exercise of due diligence should have known ail the facts necessary to establish a legal claim.” § (citing Crlsman, 85 Wn. App. at 20;

A|len v. State, 138 Wn.2d 753, 758, 826 P.2d 200 (1992)). But, the discovery

NO. 76771 -2-|/‘i 2

rule is not based on a plaintiffs knowledge of the existence of a specific legal cause of action because that would effectively toll the statute of limitations until the injured person saw his attorney. Gevaart v. Nietco Const., lnc., 111 Wn.2d 499, 502, 760 P.2d 348 (1988) (adopting the Court of Appeals’ unpublished opinion, Gevaart v. Metco Constr.. lnc., noted at 48 Wn. App. 1034 (1987), as its own).

l-lere, Welch received an expert report on Aprii 25, 2014, indicating that the intersection where the accident occurred provided a line of sight that was below safety standards We|ch argues that his cause of action against the City did not accrue until he received this expert analysis Under this theory, the statute of limitations in a negligence action could always be tolied until the plaintiff meets with an expert that advises a cause of action is available On appeal, Weich cites no authority supporting such an extension of the statute of limitations in personal injury cases, and we decline to extend one here §e§ Cowiche Canvon Conservancv, 118 Wn.2d at 809 (arguments that are not supported by any citation of authority need not be considered) (citing RAP 10.3(a)(5))_

ln response to the City’s motion for summaryiudgment beiow, We|ch cited 1000 Virginia Ltd. Partnership v. Vertecs Corp.. 158 Wn.2d 5661 146 P.3d 423 (2006) for support ot his discovery rule argument But that case involved latent defects in a construction project that were not discovered within the statute of limitations for a breach of contract action. There, the issue was whether

“appiication of the discovery rule in construction contract cases involving latent

‘i2

No. 76771-2-|/13

defects that the plaintiff would be unable to detect at the time of breach is a logical and desirable expansion of the discovery rule," i_d; at 578~79. That case is inapplicable in this context and is not a basis for extending the statute of

limitations here Welch's discovery rule argument fails.

Eguitable Estog,gel We|ch argues that the City is estopped from arguing that it was not

properly served because the city administrator accepted service of process in this case and in past cases. We disagree

“The elements of estoppel are: (1) an act or admission by the first party that is inconsistent with a later assertion; (2) an act by another party in reliance upon the first party’s act or assertion; and (3) an injury that would result to the relying party if the first party were not estopped from repudiating the original act.” Davidheiser v_ Pierce Countv, 92 Wn. App. 146, 153, 960 P.2d 998 (1998) (citing Kramarevckv v. Dep’t of Soc. & l-lealth Servs.. 122 Wn.2d 738, 743, 863 P.2d 535 (1993); Robinson v. City of Seattle. 119 Wn.2d 341 82, 830 P.2d 318 (1992)). “The party asserting estoppel must show not only lack of knowledge of the facts, but also the absence of any convenient and available means of acquiring such knowledge.” Ld_._ (citing Chem. Banl< v. Wash. Pub. Power SuDD|v Svs., 102 Wn.2d 874, 905, 691 P.2d 524 (1984)).

Davidheiser is instructive here ln that case the Court of Appeals considered whether Pierce County could be estopped from asserting insufficiency of service of process where an employee incorrectly told the plaintiff that the Risk ivlanagement Department could accept a summons and complaint

ld_. at 152-53. Under RCW 4.28.080(1), service of summons could be made only

No. 76771-2~|/14

on the county auditor, the deputy auditor, or an agent designated by legislative authority1 not the county’s Risk l\/lanagement Department. _l_d_4 at 150. Reiying on l\/leadowdale, the court explained that service on anyone other than the individuals identified in the statute was insufficient because the statute was clear who should be served g at 153-54. The court held that

even if Davidheiser could have reasonably relied on the

representation to serve the summons and complaint on the Risk

Nlanagernent Department, such reliance was no longer reasonable

after the County served its answer asserting that service was

improper Because the defense was raised within the statute of

iimitations, Davidheiser could have properly served the County

pursuant to RCW 4.28.080(1) within the statutory period.

ld_. at 154~55.

Here. as in Davidheiser, RCW 4.28.080(2) clearly states that the mayor or the city clerk must be served and the City asserted in its answer that service was insufficient Because Welch had notice of the City’s defense before the statute of limitations explred, he could have properly served the City within the statutory period. Estoppe| is note basis for denying summary judgment

Without any citation to legal authority1 Welch argues that the City is estopped from raising the defense of insufficient service because it engaged in discovery on other issues before moving for summary judgment on the issue of service |~le is mistaken ln French v_ Gabriel, 116 Wn.2d 584, 594, 806 P.2d 1234 (1991), the Supreme Court held that once the defendant properly preserved his defense of insufficiency of process by pleading it in his answer, he did not

waive it by proceeding with discovery on unrelated issues ld_. (citing Crouch v.

Friedman, 51 Wn. App. 731, 734-35, 754 P.2d 1299 (1988)); seeing

No. 76771»2~1/1 5

Davidheiser, 92 Wn. App. at 155~56. Theretore, the City did not waive the insufficient service defense by engaging in discovery on other issues.

Finally, Welch argues that the City is estopped from arguing that there was insufficient service of process because the city administrator was an apparent agent for the mayor and the mayor is bound by the city administrators acceptance of service on his beha|f. This argument is at odds with the plain language of RCW 4.28.080(2) and lVieadowdale, as described above Welch’s attempt to reframe the issue under agency law does not require a different result and his waiver and estoppel arguments fail,

Tollino of the Statute of Limitations

Welch argues that the City was properly served within the statute of limitations because the statute of limitations was tolled under RCW 4.16.170 when he e-mailed the amended complaint to Boardman’s attorney prior to filing it with the court V\le disagree

This court reviews the sufficiency of service de novo. Streeter-Dybdahl v. Nguyet Huynh, 157 Wn. App. 408, 412, 236 P.3d 986 (2010). `fhe plaintiff bears the burden of making a prima facie case of sufficient service of process M._

The statute of limitations for an action may be tolled under

RCW 4.18.170.2 Based on that statute, service on any one of multiple

2 RCW 4.16.170 states:

For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first |f service has not been had on the defendant prior to the filing of the complaintl the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the

No. 76771-2-|/16

defendants tolls the statute of limitations against all the defendants Sidis vt Brodie/Dohrmann, lnc., 117 Wn.2d 325, 329, 815 P.2d 781 (1991).

CR ‘lB(a) states that “[i]f a motion to amend is granted, the moving party shall thereafter file the amended pleading and, pursuant to rule 5, serve a copy thereof on ali other parties.” The Court of Appeals has interpreted CR l5 to require that the moving party serve the amended complaint on the opposing party after the court grants leave to amend V\lill v. Frontier Contractors. lnc., 121 Wn. App. 119, 127, 89 P.3d 242 (2004) (citing Carter v. Church, 791 F. Supp. 297, 298 (l\/l.D. Ga. 1992); Nlurray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998)).

l-lere, the only evidence of service of the amended complaint on Boardman in this record comes from a declaration by V\lelch’s attorney, which states:

l then delivered the draft amended complaint to counsel for Nlr.

Boardman, who l provided with a proposed agreed order. To my

recollection, counsel for lvir. Boardman mailed me the order with his

signature Following receipt of that document i secured an order

from the court allowing the amended complaint to be filed l then

filed the amended complaint with the court in August 2015.

Clerk’s Papers at 303. This declaration states that Boardman’s attorney was

“provided” the draft amended complaint before the court granted leave to amend.

date of filing the complaint lf the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service lf following service, the complaint is not so flled, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations

No. 76771-2~|/17

But, there is no evidence in the record that Welch served the amended complaint on Boardman after it was filed as required by CR 15(a). Even speculating that filing the amended complaint could toll the statute of limitations, Welch has the burden to show that the amended complaint was properly served on Boardman in order to effectuate tolling. He has not done so. Therefore, the tolling statute cannot be a basis for extending the statute of limitations until the City was properly served

ln conclusion, we reverse the trial court’s order on summary judgment and

direct the trial court to enter summary judgment in favor of the City.

dilute

WE CONCUR:

an~¢ l r'l£;?“ M//