Jennifer Nicole Morris, V. Estate Of Fontella Morris

• Court: Court of Appeals of Washington
• Decided: November 12, 2025
• Docket: 60226-1
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

November 12, 2025

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II JENNIFER NICOLE MORRIS, No. 60226-1-II

Appellant,

v.

ESTATE OF FONTELLA MORRIS and LEE UNPUBLISHED OPINION ALLEN MORRIS, Personal Representative for the estate,

Respondent.

GLASGOW, J.—Jennifer Morris filed a creditor’s claim against the Estate of Fontella

Morris1 contending that the Estate owed her more than $340,000 for end-of-life care she provided

to Fontella. The Estate rejected Jennifer’s claim, and Jennifer filed a complaint against the Estate

challenging the rejection. Jennifer’s attorney emailed the summons and complaint to the Estate’s

statutory agent, an attorney. The agent filed a notice of appearance and reserved objections to

insufficiency of process, lack of jurisdiction, and improper venue. She also filed a notice of

unavailability for particular dates.

In August, the Estate’s agent answered the complaint arguing insufficient service of

process and filed a motion to dismiss. In early September, Jennifer personally served the Estate’s

agent. Jennifer opposed the motion to dismiss, arguing that her email to the Estate’s agent

1 Fontella and Jennifer are not related, but because they have the same surname, we refer to them by their first names. No. 60226-1-II

sufficiently effectuated personal service, or, in the alternative, that the time for service had been

tolled under RCW 4.16.180 based on the Estate’s agent’s notice of unavailability. The trial court

granted the motion to dismiss with prejudice after finding that service of process did not occur

prior to the expiration of the statute of limitations.

Jennifer appeals, arguing that emailing the Estate’s agent was sufficient to effectuate

original service of process. She also argues that the trial court erred by failing to toll the statute of

limitations under RCW 4.16.180. The trial court was correct that sending the complaint by email

did not constitute sufficient service of process, and although RCW 4.16.170 applies to statutory

agents of estates, tolling under the statute was not appropriate under the facts of this case.

Accordingly, we affirm, and we award attorney fees to the Estate.

FACTS

Fontella Morris died in December 2023. Fontella’s only surviving child, Lee, was

appointed personal representative of the Estate. Because Lee lives out of state, the Estate’s attorney

was appointed as the statutory agent under RCW 11.36.010.

In March 2024, Jennifer filed a creditor’s claim against the Estate contending that the Estate

owed her more than $340,000 for end-of-life care she provided to Fontella. The Estate rejected

Jennifer’s claim on May 13, 2024.

On May 23, Jennifer filed a complaint against the Estate pursuing her rejected creditor’s

claim. Jennifer’s attorney emailed the complaint, summons, and an order assigning the case to a

department and setting a hearing date to the Estate’s agent.

2 No. 60226-1-II

One week later, the Estate’s agent filed a notice of appearance in the action “without

waiving objection to insufficiency of process, lack of jurisdiction, improper venue and without

waiving any and all defenses.” Clerk’s Papers (CP) at 10.

On June 21, Jennifer filed a motion for default based on the Estate’s lack of response. That

same day, the Estate’s agent filed a notice of unavailability from June 25 through July 8 and July

25, 26, and 29 and unavailability for court proceedings from July 8 through July 12. On August 8,

the Estate filed an answer with affirmative defenses, including insufficient service of process.

Under RCW 4.16.170, the statute of limitations was extended for 90 days if Jennifer served the

Estate within 90 days of filing the complaint, so August 21 was the deadline for Jennifer to serve

the Estate unless the statute of limitations was otherwise tolled or extended.

On August 27, the Estate filed a motion to dismiss based on lack of personal jurisdiction

and insufficient service of process. The Estate argued that the only proof of service was the email

to the Estate’s agent and there had been no agreement to service of process by email. The Estate

also argued that the statute of limitations on Jennifer’s claim had expired and her suit should be

dismissed with prejudice.

Jennifer served the Estate by personally serving its attorney, who was serving as its agent,

with the summons and complaint on September 6. Jennifer then responded to the Estate’s motion

to dismiss, arguing that the time for service had been tolled under RCW 4.16.180 based on the

Estate’s agent’s notice of unavailability.

The trial court found that the September 6 personal service was the first and only attempt

at personal service of the summons and complaint on the Estate. The trial court concluded that

Jennifer’s affidavit of email service was insufficient to establish jurisdiction over the Estate. The

3 No. 60226-1-II

trial court further concluded that the statute of limitations on Jennifer’s creditor claim expired on

August 21, 2024, and Jennifer did not personally serve the Estate until September 6, which was

after the expiration of the statute of limitations. The trial court also concluded that RCW 4.16.180

did not apply to toll the statute of limitations in the case because the defendant is an estate, and the

Estate’s statutory agent did not “‘willfully conceal”’ herself or “‘move out-of-state”’ at any time

after Jennifer’s cause of action accrued. CP at 73. Accordingly, the trial court granted the Estate’s

motion to dismiss with prejudice.

Jennifer appeals.

ANALYSIS

I. EMAIL INSUFFICIENT FOR SERVICE OF PROCESS

Jennifer argues that her email to the Estate’s agent was sufficient to effectuate service of

process. We disagree.

Whether service of process was proper is a question of law that we review de novo.

Goettemoeller v. Twist, 161 Wn. App. 103, 107, 253 P.3d 405 (2011). “Proper service of the

summons and complaint is a prerequisite to a court obtaining jurisdiction over a party.” Harvey v.

Obermeit, 163 Wn. App. 311, 318, 261 P.3d 671 (2011). “When a defendant challenges service of

process, the plaintiff has the initial burden of proof to establish a prima facie case of proper

service.” Northwick v. Long, 192 Wn. App. 256, 261, 364 P.3d 1067 (2015).

Chapter 4.28 RCW explains how effective service of process must be made in Washington

in order to satisfy due process requirements. RCW 4.28.080(14) provides that service on an

individual must be made through personal service by delivery of a copy of the summons to the

person or by leaving a copy of the summons at the house of his or her usual abode with some

4 No. 60226-1-II

person of suitable age and discretion. The language in RCW 4.28.080(14) requiring personal

service in standard civil cases was adopted by the legislature in 1893. See LAWS OF 1893, ch. 127,

§ 7.

Despite the clear language of RCW 4.28.080 requiring personal service, Jennifer contends

that service of process by email is nonetheless sufficient because it provided sufficient notice to

the Estate. Jennifer essentially asks us to disregard the well-established statutory requirement of

personal service of process because it would be a technical inconvenience: “Traditional service by

a process server, would only add unnecessary cost and administrative burden in this case without

enhancing the effectiveness of notice.” Br. of Appellant at 11. We decline to do so.

The legislature identifies different modes of personal service in RCW 4.28.080. If the

legislature wished to allow service of process by email, it could have. But RCW 4.28.080 does not

provide for service by email. See also In re Est. of Jepsen, 184 Wn.2d 376, 380 n.4, 358 P.3d 403

(2015) (citation omitted) (“An e-mail to an attorney cannot constitute substantial compliance with

personal service on a party where, as here, there is no express waiver of personal service, no

agreement for electronic service, and no acceptance of service by the PR anywhere in the record.”).

We are required to assume the legislature meant exactly what it said and apply the statute as

written. In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 767, 10 P.3d 1034 (2000). Emailing the

summons and complaint was insufficient to effectuate service of process of the complaint under

the law.

II. TOLLING UNDER RCW 4.16.180

Jennifer also argues that even if her email did not constitute sufficient service of process,

the trial court nonetheless erred by not tolling the statute of limitations under RCW 4.16.180.

5 No. 60226-1-II

Specifically, she argues that the trial court erred by concluding that RCW 4.16.180 does not apply

to estates and that, even if it did, tolling would not be appropriate under these facts. We conclude

that RCW 4.16.180 applies to agents of estates, but tolling is not appropriate in this case.

Jennifer was required to serve the Estate by August 21, 2024, unless the statute of

limitations was tolled. RCW 4.16.180 provides:

If the cause of action shall accrue against any person who is a nonresident of this state, or who is a resident of this state and shall be out of the state, or concealed therein, such action may be commenced within the terms herein respectively limited after the coming, or return of such person into the state, or after the end of such concealment; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself or herself, the time of his or her absence or concealment shall not be deemed or taken as any part of the time limit for the commencement of such action.

Jennifer argues that RCW 4.16.180 applies to toll the statute of limitations based on the

Estate’s registered agent’s filing of a notice of unavailability. The trial court reasoned, in part, that

RCW 4.16.180 does not apply when the defendant is an estate. We disagree.

The Estate was required to designate an in-state statutory agent for service of process.

There is nothing in the plain language of the statute that suggests defendant estates who have

registered agents are excluded. Nor does the rationale of the statute support an interpretation that

a statutory agent could conceal themselves to willfully avoid service of process without triggering

the tolling statute simply because the defendant is an estate. Washington courts have articulated

the rationale of the tolling statute: an absence from the state, or a period of hiding or concealment

within the state, that prevents a plaintiff from making a service upon a defendant should be

excluded in computing the time within which a plaintiff must commence his action. Bethel v.

Sturmer, 3 Wn. App. 862, 866, 479 P.2d 131 (1970). This rationale applies equally to agents of

estates. We conclude that RCW 4.16.180 applies to agents of estates.

6 No. 60226-1-II

However, regardless of RCW 4.16.180’s application to agents of estates, the tolling statute

is of no assistance to Jennifer. The party invoking RCW 4.16.180 must show more than just that a

defendant departed from a known address; they must show a “willful evasion of process.”

Rodriguez v. James-Jackson, 127 Wn. App. 139, 147, 111 P.3d 271 (2005). Jennifer cannot carry

this burden. She relies on the agent of the Estate’s notice of unavailability, but this hardly

establishes a willful evasion of process such that Jennifer was unable to effectuate service. Rather,

it shows that for all but about 17 days during the 90-day window, the Estate’s agent was available

to be served and willfully communicated that schedule to Jennifer. For purposes of RCW 4.16.180,

concealment is the clandestine or secret removal from a known address and willful evasion of

process. Caouette v. Martinez, 71 Wn. App. 69, 74, 856 P.2d 725 (1993); Rodriguez, 127 Wn.

App. at 147. Nothing in the record suggests that the Estate’s agent concealed themselves or

willfully evaded process. Indeed, the first attempt Jennifer made at personal service was

successful, albeit untimely. Tolling was not appropriate under these circumstances.

Jennifer also asserts that the Estate waited so long to file an answer alerting Jennifer to its

defense that the Estate waived the defense of insufficiency of service of process entirely. But the

Estate expressly did not waive insufficiency of service when it filed a notice of appearance in the

action about a week after the complaint was filed. And as Jennifer acknowledged in her brief, this

express reservation of the defense was not necessary because a notice of appearance should not be

interpreted to waive defenses in any event. Br. of Appellant at 16 (discussing Adkinson v. Digby,

Inc., 99 Wn.2d 206, 209, 660 P.2d 756 (1983). Jennifer next contends that the filing of the notice

of unavailability exhibited a willingness to litigate and waived insufficiency of service as a

defense. But Jennifer does not cite to any case that treats a notice of unavailability as a waiver of

7 No. 60226-1-II

some defenses. Moreover, the answer affirmatively asserting insufficiency of service of process

was filed on August 8, 2024, and Jennifer was required to personally serve the Estate by August

21, 2024, so she had many days after she was specifically alerted to the lack of proper service to

remedy the problem, but she did not do so. Under these circumstances, no waiver of this defense

occurred, and the trial court was correct not to toll the statute of limitations.

III. ATTORNEY FEES

The Estate requests attorney fees and costs under RAP 18.1(a) and RCW 11.96A.150(1).

RCW 11.96A.150 allows this court on appeal to order costs, including attorney fees, to any party.

The statute gives us broad discretion; we may order reasonable attorney fees and costs “to be paid

in such amount and in such manner as [we determine] to be equitable.” RCW 11.96A.150(1). We

may consider “any and all factors” that we deem to be “relevant and appropriate.” Id.

The Estate has prevailed on appeal, and we conclude it is equitable to award reasonable

costs and attorney fees on appeal to the Estate. In these circumstances where it was Jennifer’s

counsel who failed to properly serve the Estate, we conclude it is equitable to order that Jennifer’s

counsel must pay the Estate’s attorney fees and costs in an amount to be determined by a

commissioner of this court.

CONCLUSION

In conclusion, Jennifer’s attempt to serve the Estate by emailing the complaint and

summons to its statutory agent was insufficient to effectuate service of process under RCW

4.28.080. While Jennifer eventually made personal service on the Estate, it was not completed

until after the statute of limitations expired. And Jennifer fails to show that the statute of limitations

should be tolled based on the statutory agent’s notice of unavailability.

8 No. 60226-1-II

Accordingly, we affirm, and we award attorney fees to the Estate.

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.

GLASGOW, J. We concur:

CRUSER, C.J.

CHE, J.