Appeal from Superior Court of Island County. Docket No: 94-2-00036-0. Date filed: 06/16/95. Judge signing: Hon. Alan R. Hancock.
PER CURIAM. Donnie and Patricia Stinnett appeal the dismissal of their personal injury action against Debra Boeck on summary judgment based on their failure to timely serve Boeck. They argue dismissal was improper because a factual issue exists as to whether service was perfected by publication. Alternatively, they claim that Boeck waived the defense of insufficient service by actively defending the lawsuit. Because the Stinnetts did not meet the statutory requirements for service by publication as a matter of law, and there is no evidence that Boeck waived the defense of insufficient service, we affirm.
Donnie Stinnett and Debra Boeck were involved in a two-car automobile accident on January 29, 1991. Alleging that Boeck caused the accident by her negligent driving, the Stinnetts filed suit against Boeck on January 21, 1994. The three year statute of limitation period under RCW 4.16.080(2) expired on January 29, 1994. The ninety day period during which service can be perfected under RCW 4.16.170 *fn1 expired on April 21, 1994.
According to the affidavits in the record, from January 20, 1994 to March 13, 1994, process server Archie Vivian unsuccessfully attempted to serve Boeck at a Freeland address listed in the police report. On March 18, 1994, the Stinnetts sought and were granted an order authorizing service by publication under RCW 4.28.100. They based their application on Vivian's "Affidavit of Not Found" and the declaration of their attorney, Sharon Nichols. Vivian's affidavit did not state what efforts he made to find Boeck but merely concluded that "after diligent search and inquiry, I was unable to find the Defendants in Island County, Washington." Nichols represented that:
Service of the Summons by publication (RCW 4.28.100) is authorized for the following described case:
9. Other: Mr. Archie Vivian . . . has attempted personal service upon the Defendants at their last known address of 5936 S Cedar Street, Freeland, Washington from January 20, 1994 to March 3, 1994. . . . The Complaint in this case was filed on January 21, 1994 and it appears that personal service upon the Defendants is impossible within the prescribed 90 day limitation. The Statute of Limitations in this matter expired on January 29, 1994, and thus, the urgency of the service of the Summons and Complaint.
The notice was published from March 29 through May 3, 1994. On April 21, 1994, defense counsel Steven Knapp signed a notice of appearance on behalf of Boeck reserving all 12(b) defenses. The notice was filed on April 25, 1994. From June 1994 to November 1994, Boeck conducted discovery, including deposing the Stinnetts and sending a written request for the police report and authorization to obtain Donnie Stinnett's medical records. Knapp also sent the Stinnetts' counsel a letter suggesting that the case be arbitrated if the parties could not reach a settlement.
Boeck filed her answer on March 6, 1995 asserting affirmative defenses that included improper service, lack of personal jurisdiction and statute of limitations. On April 18, 1995, Boeck moved for summary judgment arguing that the court lacked personal jurisdiction because Stinnetts' service by publication was invalid.
Boeck submitted her affidavit stating that she moved from Freeland to Mercer Island in 1992. She told several neighbors about her move and since that time, her phone number has been listed in the Seattle phone book. She stated that she never attempted to avoid service or to hide her whereabouts.
The Stinnetts opposed the motion, arguing (1) that a genuine issue of material fact existed as to whether service by publication was proper, and (2) that Boeck had waived all defenses as to the insufficiency of the service by filing a notice of appearance and answer and by conducting discovery before filing her motion for summary judgment.
The court granted Boeck's motion. It orally ruled that there was no basis in the record for service by publication because the Stinnetts failed to show or even allege that Boeck attempted to avoid service. The court explained:
There are only eight grounds upon which service by publication can be authorized, and the only one that would have any possible applicability in the present case is set forth in the second paragraph of RCW 4.28.100, that provides that when the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors or to avoid the service of the summons, or keeps himself concealed therein with like intent. There has never been any factual basis here for a showing, if you will, that Debora Boeck departed the state of Washington with intent to defraud her creditors or to avoid the service of the summons or keep herself concealed in the state of Washington with like intent, so there simply was no proper basis for service by publication in the present case.
The court further ruled that Boeck did not waive her right to assert the affirmative defense of insufficient service because by the time Boeck appeared in the action, the statute of limitations and the time for service had already run. As a result, the court noted, "by the time that that date arrived, it was already too late, in effect, for there to be proper service of process, so there was nothing that the defendant could have done at that point that would have ...