Wiley Smith, V. Krisstal Champness

• Court: Court of Appeals of Washington
• Decided: October 31, 2022
• Docket: 83158-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WILEY SMITH JR., DIVISION ONE Appellant, No. 83158-5-I v. UNPUBLISHED OPINION KRISSTAL CHAMPNESS and JOHN DOE CHAMPNESS, wife and husband, and the marital community composed thereof, ROBERT LECAVALIER and JANE DOE LECAVALIER, husband and wife, and the marital community composed thereof,

Respondents.

DWYER, J. — Wiley Smith appeals the trial court’s order dismissing his

personal injury action for failure to effect service within the applicable statutory

limitation period. Smith argues that the trial court erred in failing to weigh the

credibility of the witnesses to find that defendant Krisstal Champness was

personally served at her residential address in California.1 Smith further

contends that the trial court erred in failing to apply the doctrines of excusable

neglect, substantial compliance, waiver, or equitable tolling to avoid dismissal.

The evidence in the record is insufficient to establish that Smith effectuated

1 Smith’s appellate briefing raises no challenge to the dismissal of his lawsuit as to

defendants Robert and Jane Doe LeCavalier. A party “is deemed to have waived any issues that are not raised as assignments of error and argued by brief.” State v. Sims, 171 Wn.2d 436, 441, 256 P.3d 285 (2011); RAP 10.3(a)(4), (g). No. 83158-5-I/2

proper out-of-state service on Champness, and equitable relief is unwarranted

under these circumstances. We therefore affirm.

I

On November 22, 2017, Wiley Smith and Krisstal Champness were

involved in a motor vehicle accident in Snohomish County. The police report

listed an address for Champness in Everett, Washington. Robert LeCavalier was

listed as the car’s registered owner.

On November 12, 2020, shortly before the three-year statutory limitation

period expired, Smith filed a personal injury lawsuit in Snohomish County

Superior Court against Champness and LeCavalier. On November 24, 2020,

counsel for Champness and LeCavalier entered a notice of appearance stating

that it was entered “without waiving objections as to improper service or

jurisdiction.”

On December 11, 2020, Smith moved for an order authorizing him to

serve Champness and LeCavalier by mail. The defendants timely filed an

opposition to the motion. Smith failed to confirm the motion as required by local

rules and it was struck. Accordingly, the court did not rule on the motion.

On July 30, 2021, Smith moved for an order of default judgment claiming

that his process server personally served Champness on December 11, 2020.

He further argued that the court should grant his original motion to serve by mail

and accept service performed on LeCavalier. In opposition to the motion, the

defendants pointed out that although Smith claimed to have personally served

Champness in California, he failed to file an affidavit attesting that service could

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not be made within Washington, as required by RCW 4.28.185. They further

argued that the process server’s affidavit was false. In support of this assertion,

the defendants submitted the declaration of Logan King, who stated that he

informed the process server that Champness was not physically present at the

premises but that the process server handed the documents to him anyway.

On August 16, 2021, Champness and LeCavalier moved to dismiss

Smith’s lawsuit under CR 12(b)(2) for lack of personal jurisdiction and CR

12(b)(5) for insufficient service of process. They asserted that the three-year

statutory limitation period applicable to personal injury actions had expired and

that Smith had failed to effectuate proper service within 90 days of filing the

lawsuit, as RCW 4.16.170 requires. In response, Smith argued that the court

should deny the motion because Champness had actual notice of the action

within the limitation period. Alternatively, Smith argued that the court should

apply the doctrines of excusable neglect, substantial compliance, and equitable

tolling to allow his claim to proceed.

On August 27, 2021, the trial court entered an order dismissing Smith’s

lawsuit on the ground that he failed to properly serve the defendants within the

statutory limitation period. Smith appeals.

II

“Proper service of the summons and complaint is a prerequisite to a

court’s obtaining jurisdiction over a party.” Harvey v. Obermeit, 163 Wn. App.

311, 318, 261 P.3d 671 (2011). The plaintiff bears the initial burden to prove a

prima facie case of sufficient service. Scanlan v. Townsend, 181 Wn.2d 838,

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847, 336 P.3d 1155 (2014). “‘[M]ere receipt of process and actual notice alone

do not establish valid service of process.’” Ralph’s Concrete Pumping, Inc. v.

Concord Concrete Pumps, Inc., 154 Wn. App. 581, 585, 225 P.3d 1035 (2010)

(quoting Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 177, 744

P.2d 1032 (1987)).

Where, as here, “‘the trial court considers matters outside the pleadings

on a motion to dismiss for lack of personal jurisdiction, we review the trial court’s

ruling under the de novo standard of review for summary judgment.’” Columbia

Asset Recovery Grp., LLC v. Kelly, 177 Wn. App. 475, 483, 312 P.3d 687 (2013)

(quoting Freestone Cap. Partners LP v. MKA Real Est. Opportunity Fund I, LLC,

155 Wn. App. 643, 653, 230 P.3d 625 (2010)). Summary judgment is

appropriate where there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. CR 56(c). When the key facts

are not in dispute, whether service of process was proper is a pure question of

law that we review de novo. Heinzig v. Seok Hwang, 189 Wn. App. 304, 310,

354 P.3d 943 (2015).

Washington requires civil damage actions to be commenced within three

years. RCW 4.16.080. Under RCW 4.16.170, a plaintiff may toll the statute for

90 days by filing a complaint and then serving a defendant within this time period.

Failing to properly serve a defendant within this time period means that “the

action shall be deemed to not have been commenced for purposes of tolling the

statute of limitations.” RCW 4.16.170; Wothers v. Farmers Ins. Co. of Wash.,

101 Wn. App. 75, 79, 5 P.3d 719 (2000). Here, Smith filed the complaint on

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November 12, 2020, thus tentatively commencing the lawsuit and tolling the

statute of limitation for 90 days.

Smith asserts that the process server properly accomplished out-of-state

personal service on Champness at her residential address in Bakersfield,

California on December 11, 2020, well within the statutory limitation period. He

contends that the trial court should have weighed the credibility of the process

server against that of Logan King to find that Champness was in fact personally

served. But the process server’s affidavit of service does not appear in the

record before us. As a party seeking review, the appellant has the burden to

perfect the record so that the reviewing court has all evidence relevant to the

issues presented. RAP 9.6(a); Bulzomi v. Dep’t of Labor & Indus., 72 Wn. App.

522, 525, 864 P.2d 996 (1994). The failure to do so precludes appellate review.

Stiles v. Kearney, 168 Wn. App. 250, 259, 277 P.3d 9 (2012).

Smith attempts to remedy this problem by attaching an unstamped copy of

the affidavit of service as an appendix to his opening appellate brief. However,

RAP 10.3(a)(8) prohibits a party from submitting an appendix that includes

“materials not contained in the record on review without permission from the

appellate court.” Smith has not obtained the required permission. Nor has Smith

shown that the document was ever presented to the trial court. Accordingly, we

decline to consider it.2 Because the record before us contains no evidence that

2 Where a plaintiff meets the initial burden to demonstrate a prima facie case of sufficient

service, contradictory declarations as to whether personal service was accomplished create a question of fact for the trial court to resolve. See Harvey, 163 Wn. App. at 327 (noting that a court may abuse its discretion by failing to hold an evidentiary hearing when affidavits present an issue of fact requiring a determination of witness credibility). That is not the situation here. Given the record before us, we do not resolve this matter on the basis of the declarations.

5 No. 83158-5-I/6

Champness was personally served, Smith has not met his burden to prove a

prima facie case of sufficient service.

Moreover, even if we were to consider the document attached to Smith’s

brief, we would still affirm dismissal of Smith’s lawsuit. Under Washington’s long-

arm statute, RCW 4.28.185, service of process may be made by personally

serving the defendant outside this state. Personal service outside the state is

valid, however, “only when an affidavit is made and filed to the effect that service

cannot be made within the state.” RCW 4.28.185(4). “If a plaintiff has not

complied with RCW 4.28.185(4), then there is no personal jurisdiction and the

judgment is void.” Sharebuilder Sec. Corp. v. Hoang, 137 Wn. App. 330, 335,

153 P.3d 222 (2007). Statutes authorizing service of process on out-of-state

parties are in derogation of common law and thus are strictly construed. Ralph’s

Concrete Pumping, 154 Wn. App. at 585. Here, Smith failed to provide the

affidavit testimony required by RCW 4.28.185(4).

Smith argues that the trial court should have found that he substantially

complied with statutory service requirements. Personal jurisdiction over an out-

of-state defendant may be established where the plaintiff substantially complies

with the affidavit requirement. Sharebuilder, 137 Wn. App. at 334. “[S]ubstantial

compliance means that, viewing all affidavits filed prior to judgment, the logical

conclusion must be that service could not be had within the state.” Sharebuilder,

137 Wn. App. at 334-35 (citing Barr v. Interbay Citizens Bank, 96 Wn.2d 692,

696, 635 P.2d 441, 649 P.2d 827 (1981)). Smith asserts that he attempted

service on Champness in state, mailed notice via registered mail, and then

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achieved service out-of-state at her place of residence in California. But the

record before us contains no evidence whatsoever in support of these claims.

Smith has not met his burden to demonstrate valid service on Champness or any

other defendant within the statute of limitations.

III

Next, Smith argues that any flaws in his attempt to effectuate proper

service were justified by excusable neglect. CR 60 authorizes a court to relieve a

party from a final judgment or order based on “[m]istakes, inadvertence, surprise,

excusable neglect or irregularity in obtaining a judgment or order.” A defendant

may be entitled to vacation of a default judgment under CR 60(b)(1) if the

defendant can show “(1) [t]hat there is substantial evidence extant to support, at

least prima facie, a defense to the claim asserted by the opposing party; (2) that

the moving party’s failure to timely appear . . . was occasioned by mistake,

inadvertence, surprise or excusable neglect; (3) that the moving party acted with

due diligence after notice of entry of the default judgment; and (4) that no

substantial hardship will result to the opposing party.” White v. Holm, 73 Wn.2d

348, 352, 438 P.2d 581 (1968).

Smith contends it was reasonable for him to rely on the process server’s

declaration stating that Champness was personally served, and that the process

server’s mistake, if any, is “exactly the type of thing CR 60 . . . is aimed to

excuse.” Smith is incorrect. As discussed above, the process server’s

declaration is not in the record before us. More fundamentally, Smith is the

plaintiff in this action, not the defendant. CR 60(b)(1) has no bearing on the

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dismissal of Smith’s lawsuit based on failure to effect proper service within the

statutory limitation period.

IV

Smith next argues that Champness waived the affirmative defense of

insufficient service of process. This is so, he contends, because counsel for

Champness and LeCavalier entered an appearance in the lawsuit and opposed

the motion to serve by mail. We disagree.

A defendant may waive the affirmative defense of insufficient service if

assertion of the defense is inconsistent with the defendant’s previous behavior or

if the defendant has been dilatory in asserting it. Lybbert v. Grant County, 141

Wn.2d 29, 39, 1 P.3d 1124 (2000). The doctrine of waiver in this context is

“‘designed to prevent a defendant from ambushing a plaintiff during litigation

either through delay in asserting a defense or misdirecting the plaintiff away from

a defense for tactical advantage.’” Harvey, 163 Wn. App. at 323 (quoting King v.

Snohomish County, 146 Wn.2d 420, 424, 47 P.3d 563 (2002)).

Smith argues that Champness waived the defense of insufficient service

of process by filing a notice of appearance and responding to the motion to serve

by mail, thus demonstrating that she had actual notice of the action. But mere

knowledge of the pendency of an action is insufficient to confer jurisdiction.

Painter v. Olney, 37 Wn. App. 424, 427, 680 P.2d 1066 (1984). And “the mere

appearance by a defendant does not preclude the defendant from challenging

the sufficiency of service of process.” Lybbert, 141 Wn.2d at 43. In addition, the

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notice of appearance specified that it was entered “without waiving objections as

to improper service, venue or jurisdiction.”

Smith further contends that Champness and LeCavalier waived service by

lying in wait on this issue and then filing a motion to dismiss after the statutory

limitation period had expired. A “defendant cannot justly be allowed to lie in wait,

masking by misnomer its contention that service of process has been insufficient,

and then obtain a dismissal on that ground only after the statute of limitations has

run, thereby depriving the plaintiff of the opportunity to cure the service defect.”

Lybbert, 141 Wn.2d at 40 (quoting Santos v. State Farm Fire & Cas. Co., 902 F.2d

1092, 1096 (2d Cir. 1990)).

But Champness and LeCavalier did not neglect to raise the defense of

insufficient service of process prior to the end of the tolling period. In their

opposition to Smith’s motion to file by mail, Champness and LeCavalier stated that it

was “evident from the Declaration of plaintiff’s counsel, plaintiff has not made

reasonably diligent efforts to personally serve the defendants.” They further pointed

out that the “subject accident occurred on November 17, 2017, and thus, plaintiff

still has five weeks under the 90-day relation back provision under RCW

4.16.170 in which to properly serve the summons and complaint. Instead,

plaintiff has chosen to file a legally deficient motion.” Nor did they conduct

discovery or otherwise engage in conduct inconsistent with the later assertion of

the defense. See Harvey, 163 Wn. App. at 324 (noting that waiver may apply

where the defendant “engages in considerable discovery not related to the

defense”). Champness and LeCavalier did not waive the defense of insufficient

service of process.

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V

Lastly, Smith argues that “extraordinary circumstances” justify equitable

tolling of the statute of limitations. “‘Equitable tolling ‘permits a court to allow an

action to proceed when justice requires it, even though a statutory time period

has nominally elapsed.’” City of Bellevue v. Benyaminov, 144 Wn. App. 755,

760, 183 P.3d 1127 (2008) (internal quotation marks omitted) (quoting State v.

Robinson, 104 Wn. App. 657, 667, 17 P.3d 653 (2001)). Because equitable

tolling of the statute of limitations is an “extraordinary form of relief,” it is

“appropriate only when it is consistent with the purposes underlying the

governing statutory rules and when justice demands a departure from those

rules.” Fowler v. Guerin, __ Wn.2d __, 515 P.3d 502, 506 (2022). “The purpose

of statutes of limitations is to shield defendants and the judicial system from stale

claims.” Crisman v. Crisman, 85 Wn. App. 15, 19, 931 P.2d 163 (1997). “The

predicates for equitable tolling are bad faith, deception, or false assurances by

the defendant and the exercise of diligence by the plaintiff.” Millay v. Cam, 135

Wn.2d 193, 206, 955 P.2d 791 (1998).

Smith argues that equitable tolling is warranted because (1) the extent of

his injuries were still being determined as the three-year statutory limitation

period expired, (2) the defendants were difficult to locate and serve, (3) he made

diligent attempts to serve them, (4) Champness received actual notice, and (5)

these events took place during the COVID-19 pandemic, which created

uncertainty for Smith’s counsel and ultimately caused his unexpected departure

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for military service. None of these reasons justify tolling of the statute of

limitations.

Smith has failed to show that he commenced his lawsuit within the

applicable statutory limitation period. Equitable relief was not shown to be

warranted. The trial court did not err by dismissing the complaint.

Affirmed.

WE CONCUR: