Appeal from Superior Court of Snohomish County. Docket No: 94-2-04143-4. Date filed: 08/04/95. Judge signing: Hon. Joseph Thibodeau.
Petition for Review Denied July 8, 1997,
PER CURIAM. The primary issue to be decided in this case is whether there was adequate service of process on Christine Conradi before the running of the applicable statute of limitations. A copy of the summons and complaint was served on Pearl Joslin, Conradi's mother, at her residence. The trial court determined that this method of service on Conradi was inadequate and dismissed the lawsuit filed against her by Kenneth Glatt. Finding no reversible error, we affirm.
On September 7, 1991, Glatt and Conradi were involved in a motor vehicle accident. Glatt filed suit against Conradi on June 13, 1994, seeking damages for injuries he allegedly sustained as a result of the accident.
On June 23, 1994, Ron Bodey, a process server hired by Glatt, served a copy of the summons and complaint on Conradi's mother at the mother's residence. The record is unclear as to when and how Conradi first became aware of the action against her. On July 29, Conradi filed an answer in which she raised various affirmative defenses, including lack of personal jurisdiction and insufficient service of process. The parties engaged in discovery and subsequently Conradi moved for dismissal of the personal injury action based on insufficient service of process.
In support of her motion, Conradi submitted affidavits from her mother and herself stating that at the time process was left with her mother Conradi did not reside at the address. According to their affidavits, Conradi had not lived at the family home for approximately 20 years. Thus, argued Conradi, service of process was insufficient and the complaint against her should be dismissed.
In his response to the motion to dismiss, Glatt asserted that Conradi had waived any insufficiency of service defense by conducting discovery. Based on statements made by the process server, Glatt claimed that Conradi's mother told the process server that Conradi was residing with her at the time of service. In addition, Glatt's own affidavit stated that Conradi had informed him at the time of the accident "that she was staying with her mother until she found another place - she stated that she had just completed a divorce."
The court held an evidentiary hearing to resolve the disputed issues of fact. Both Conradi and her mother testified at the hearing. The process server also testified at the hearing. The testimony of the witnesses was consistent with the statements made in their affidavits. At the Conclusion of the hearing, the court concluded that the insufficiency of service of process defense had not been waived and that service on Conradi was insufficient. The court then dismissed Glatt's action against Conradi because the 3-year statute of limitations had run. This appeal followed.
We must first decide whether Conradi waived the defense of insufficient service of process by proceeding with discovery. Glatt contends Conradi conducted herself in a manner inconsistent with the defenses of insufficient service and lack of personal jurisdiction. A litigant may waive a defense of insufficient service of process if the party engages in conduct that is dilitory or inconsistent with asserting that defense. *fn1 Glatt argues that the discovery conducted by Conradi was completely inconsistent with the claim that the court had no personal jurisdiction over her. Glatt relies on Romjue v. Fairchild *fn2 to support his argument.
In Romjue, the plaintiff attempted to serve the defendant at his parents' residence. As it turned out, however, the defendant did not reside at the family residence. The defendant subsequently engaged in a wide range of discovery. After the statute of limitations for plaintiff's cause of action had expired, the defendant moved to dismiss on the ground that service of process was insufficient. The trial court granted that motion.
On appeal, the plaintiff argued that the defendant had waived the defense of insufficient service by engaging in discovery before he moved to dismiss. The appellate court agreed, holding that the type of discovery conducted by defendant was inconsistent with the defense of insufficient service and that he was aware, before the statute of limitations ran, that plaintiff believed service was effective, and chose not to correct that misapprehension until after the statute of limitation had expired. *fn3
The facts of Romjue are significantly different from the facts here. The critical distinction in this case is that Conradi did not wait until after the limitations period had expired to alert Glatt to the service of process problem. According to Romjue, *fn4 "if a defendant conducts himself in a manner inconsistent with the later assertion of the defense of insufficient service, the court is justified in declaring a waiver." The thrust of this holding is to ensure that a plaintiff is given some advance notice that the defendant is planning to defend against the action on the basis that service of process was insufficient. The problem that concerned the Romjue court is simply not present here. Unlike Romjue, Conradi filed an answer in which she specifically raised the defenses of lack of personal jurisdiction and insufficiency of service of process. The answer was filed more than 1 month before the applicable 3-year statute of limitations ran. The affidavits and other materials filed by Glatt do not indicate what efforts, if any, were made to locate Conradi after she raised those defenses in her answer. Under these circumstances, Conradi has not waived the defense of insufficient service. *fn5
As discussed by the trial court in its memorandum decision, [Glatt] was put on notice more than thirty days prior to the expiration of the statute of limitations that [Conradi] was relying on the affirmative defense of insufficient service of process. [Glatt] had ample time to conduct ...