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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                          ro        -n ''-.
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MARK HEINZIG and JANE DOE                                                         x>»       </>rn
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HEINZIG, and their marital community,             DIVISION ONE
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                                                                                  no        C3~
              Appellants,                         No. 72269-7-1


         v.
                                                  UNPUBLISHED OPINION
SEOK HWANG and JANE/JOHN DOE
HWANG, and their marital community,

              Respondents.                        FILED: June 29, 2015


       Dwyer, J. — Following a motor vehicle collision with Seok Hwang, Mark

Heinzig commenced a lawsuit against Hwang and, subsequently, sought to

accomplish substituted service of process pursuant to Washington's nonresident

motorist act, RCW 46.64.040. Heinzig failed, though, to strictly comply with the

procedural requirements contained in RCW 46.64.040 before the applicable

statutory limitation period expired. Thus, when Hwang later brought a motion to
dismiss, alleging insufficient service of process, the trial court properly granted

the motion and dismissed Heinzig's complaint. Finding no error in the trial court

proceedings, we affirm.



       On June 5, 2010, Heinzig was involved in a motor vehicle collision with

Hwang. The collision occurred in Lynwood, Washington.
No. 72269-7-1/2



       On May 13, 2013, Heinzig initiated a lawsuit against Hwang in Snohomish

County Superior Court. In the complaint, Heinzig alleged that he had suffered

injury as a result of Hwang's negligence in operating a motor vehicle. Upon filing

of the complaint, the three-year statutory limitation period was tolled for 90 days,

so long as valid service of process was effected on Hwang within the 90-day

period. RCW4.16.170.1

       On May 14, copies of the summons and complaint were provided to a

professional process service company, North Sound Due Process, LLC.

Registered process server Debra Gorecki made three unsuccessful attempts to

effect service upon Hwang. Thereafter, Gorecki prepared and signed a

"Declaration of Diligence," in which she detailed her attempts to serve Hwang.
       On May 17, a staff member of Heinzig's attorney's office sent an e-mail to

Hwang's attorney, attached to which were copies of the summons and complaint.
The e-mail included the following statement: "As requested, here is the complaint

for Mark Heinzig." Hwang's attorney replied, "Got it. Thanks." Later that day,
the same staff member sent another e-mail to Hwang's attorney, which stated,

"attached is the filed copy." Hwang's attorney replied, "Thanks."

       On May 22, Hwang's attorney filed a notice of appearance.

       On June 4, Heinzig's attorney mailed two copies of the summons and

       1This provision provides, in part, for the following:
       Forthe purpose oftolling any statute of limitations an action shall be deemed
       commenced when the complaint is filed or summons is served whichever comes
       first. If service has not been had on the defendant prior to the filing of the
       complaint, the plaintiff shall cause one or more ofthe defendants to be served
        ... within ninety days from the date of filing the complaint     If 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.

                                                -2-
No. 72269-7-1/3



complaint to the Washington secretary of state. Included in this mailing was a

letter written by Heinzig's attorney, wherein he informed the secretary of state of

the fruitless attempts to serve Hwang in Washington and provided Hwang's last

known address. Also included in the mailing was Gorecki's "Declaration of

Diligence." All of this was done in an attempt to effect service of process on

Hwang pursuant to RCW 46.64.040.

       A staff member of the secretary of state's office, in a letter to Heinzig's

attorney, confirmed that Heinzig's mailing had been received on June 7. The

staff member informed Heinzig that a copy of the received documents had been

mailed to Hwang's last known address on June 10.2 The mailing sent from the

secretary of state to Hwang's last known address was returned as undeliverable.

        On January 30, 2014, Hwang filed a CR 12(b) motion to dismiss the

complaint. Therein, Hwang asserted that he had never been personally served,
that Heinzig had failed to accomplish substituted service pursuant to RCW

46.64.040, and that the applicable statute of limitation had run. With regard to

Heinzig's attempt to effect substituted service, Hwang contended that Heinzig

had failed to adhere to two statutory requirements: (1) sending notice by

registered mail to Hwang ofservice upon the secretary of state, and (2) attaching
to that mailing an affidavit of due diligence signed by his attorney and certifying

that attempts had been made to serve Hwang personally.

        In an April 3 memorandum decision, the trial court ruled in Hwang's favor.


        2 On June 12, a staff member of Heinzig's attorney's office e-mailed Hwang's attorney
and attached a copyof the lettersent from the secretary of state's office to Heinzig's attorney.
No. 72269-7-1/4



The court ruled that Heinzig's failure to send a "letter with summons and

complaint" to Hwang by registered mail rendered Heinzig's attempt at effecting

substitute service ineffective. In so ruling, the court declined to hold that Hwang

had waived the defense of insufficient service of process. The court's reasons

for doing so are set forth in some detail below.

       (3) The agreed facts, as a matter of law, cannot support a finding of
       waiver for the following reasons:
              a. The statute of limitations ran on August 11, 2013, and
              assuming the Secretary of State sent the letter on June 10,
              even if service had been proper, defendant's answer would
              not have been due for 60 days plus potentially 3 days for
              mailing. Even ifdefendant answered timely at the end of 60
              days and asserted improper service, there would have been
              insufficient time to remedy the service defect.
              b. The defendant did not answer or conduct discovery or file
              other pleadings and fail[ed] to raise insufficiency of process.
              No other pleadings have been filed and no discovery
              conducted.
              c. There is no evidence presented that defendant or
              defense counsel conducted negotiations or participated in
              other actions to lead plaintiff to believe the case was headed
              toward trial and litigation.
              d. There is no evidence that defense counsel knew or had
              any facts or way to know of the particular defect in service
              before the statute of limitations ran. As the information sent
              to defense counsel showing service by the Secretary of
              State would have shown the letter from the Secretary of
              State and any letter from defense counsel went to a bad
              address, the defense could not have known the failure of the
              defendant to receive a registered letter from the defense
              counsel meant no such letter was sent. The defense
              reasonably could assume the letter was simply returned to
              the plaintiff as undeliverable.
              e. The mere passage of time before bringing the action to
              dismiss after the statute of limitations [h]as run is not
              necessarily enough to constitute waiver. Compare, Harvey
              v. Obermeit, [163 Wn. App. 311, 261 P.3d 671 (2011)]
              supra. (Waiver was not found, although defendant did not
              advise plaintiff of service of process issue in the 90 day
              service period before statute of limitations ran and did not file
No. 72269-7-1/5



               motion to dismiss until 6.5 months after the lawsuit was
               filed.)

       On July 3, the court entered an order granting Hwang's motion to dismiss

on the basis that service of process had not been accomplished before expiration

of the applicable statutory limitation period.

       Heinzig appeals.

                                           II


       Heinzig contends that the trial court erred in holding that his attempt to

accomplish substituted service pursuant to RCW 46.64.040 was ineffective.

Contrary to the court's conclusion, he maintains that he "sufficiently complied"

with the statute's procedural requirements. Only strict compliance, however,

could permit jurisdiction to be obtained over Hwang. Thus, appellate relief is

unwarranted.

       "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). Whether service of process was proper is a

question of law that this court reviews de novo. Goettmoeller v. Twist, 161 Wn.
App. 103, 107, 253 P.3d 405 (2011).

       As noted, RCW 46.64.040 is Washington's nonresident motorist act.

Generally speaking, it allows for substituted service on the Washington secretary

of state when the person intended to be served is not an inhabitant of or cannot

be found within Washington. It provides,

       The acceptance by a nonresident of the rights and privileges
       conferred by law in the use of the public highways of this state, as
No. 72269-7-1/6



      evidenced by his or her operation of a vehicle thereon, or the
      operation thereon of his or her vehicle with his or her consent,
      express or implied, shall be deemed equivalent to and construed to
      be an appointment by such nonresident of the secretary of state of
      the state of Washington to be his or her true and lawful attorney
      upon whom may be served all lawful summons and processes
      against him or her growing out of any accident, collision, or liability
      in which such nonresident may be involved while operating a
      vehicle upon the public highways, or while his or her vehicle is
      being operated thereon with his or her consent, express or implied,
      and such operation and acceptance shall be a signification of the
      nonresident's agreement that any summons or process against him
      or her which is so served shall be of the same legal force and
      validity as ifserved on the nonresident personally within the state of
      Washington. Likewise each resident of this state who, while
      operating a motor vehicle on the public highways of this state, is
      involved in any accident, collision, or liability and thereafter at any
      time within the following three years cannot, after a due and diligent
      search, be found in this state appoints the secretary of state of the
      state of Washington as his or her lawful attorney for service of
      summons as provided in this section for nonresidents. Service of
      such summons or process shall be made by leaving two copies
      thereof with a fee established by the secretary of state by rule with
      the secretary of state of the state of Washington, or at the secretary
      of state's office, and such service shall be sufficient and valid
      personal service upon said resident or nonresident: PROVIDED,
      That notice of such service and a copy of the summons or process
      is forthwith sent by registered mail with return receipt requested, by
      plaintiff to the defendant at the last known address of the said
      defendant, and the plaintiff's affidavit of compliance herewith are
      appended to the process, together with the affidavit of the plaintiff's
      attorney that the attorney has with due diligence attempted to serve
      personal process upon the defendant at all addresses known to him
      or her of defendant and further listing in his or her affidavit the
      addresses at which he or she attempted to have process served.
      However, if process is forwarded by registered mail and
      defendant's endorsed receipt is received and entered as a part of
      the return of process then the foregoing affidavit of plaintiff's
      attorney need only show that the defendant received personal
      delivery by mail: PROVIDED FURTHER, That personal service
      outside of this state in accordance with the provisions of law
       relating to personal service of summons outside of this state shall
       relieve the plaintiff from mailing a copy of the summons or process
       by registered mail as hereinbefore provided. The secretary of state
      shall forthwith send one of such copies by mail, postage prepaid,

                                        -6-
No. 72269-7-1/7



      addressed to the defendant at the defendant's address, if known to
      the secretary of state. The court in which the action is brought may
      order such continuances as may be necessary to afford the
      defendant reasonable opportunity to defend the action. The fee
      paid by the plaintiff to the secretary of state shall be taxed as part of
      his or her costs if he or she prevails in the action. The secretary of
      state shall keep a record of all such summons and processes,
      which shall show the day of service.

RCW 46.64.040.

       Our Supreme Court has made known that only strict procedural

compliance with the requirements of RCW 46.64.040 will permit personal

jurisdiction to be obtained over a nonresident defendant. Martin v. Triol, 121
Wn.2d 135, 144, 847 P.2d 471 (1993): see also Harvey, 163 Wn. App. at 318;

Omaits v. Raber. 56 Wn. App. 668, 670, 785 P.2d 462 (1990). A plaintiff's failure

to adhere to the statute's procedures for notifying the defendant that process has

been served on the secretary renders service on the secretary a nullity. Omaits,

56 Wn. App. at 670.

       The statutory procedure for notifying a defendant that process has been

served on the secretary requires the plaintiff to (1) either personally serve the
defendant with a copy of the summons and notice of service on the secretary or

send the same documents by registered mail, return receipt requested, to the

defendant's last known address, and (2) append to the mailing an affidavit of

compliance with the statute signed by the plaintiff and an affidavit of due
diligence signed by the plaintiff's attorney and certifying that attempts were made
to serve the defendant personally. RCW 46.64.040; Keithlv v. Sanders, 170 Wn.
App. 683, 688-90, 285 P.3d 225 (2012). But see Clav v. Portik, 84 Wn. App.
No. 72269-7-1/8



553, 559, 929 P.2d 1132 (1997) (requiring only that the affidavits be filed with the

court).3

       Heinzig failed to adhere to this procedure. Nevertheless, he contends that

he "sufficiently complied" with RCW 46.64.040. This is so, he asserts, because

he "caused the necessary documents" to be mailed to Hwang's last known

address by the secretary of state, which, he maintains, satisfied the statute's

purpose of providing notice to Hwang of service on the secretary. In other words,

Heinzig takes the position that, so long as Hwang received notice by mail of

service on the secretary, the requirements of RCW 46.64.040 were met.

       Heinzig relies primarily on Clay.4 The issue in Clav, however, was

whether the plaintiff's affidavit of compliance was insufficient by virtue of being

signed by the plaintiff's attorney, but not by the plaintiff herself. 84 Wn. App. at

560-61. The court held that an affidavit of compliance may be signed by either

the plaintiff or the plaintiff's attorney. Cjay, 84 Wn. App. at 561-62. "Since an

attorney is presumed to act on behalf of her client in all procedural matters," the
court observed, "it follows then, that under this statute, the attorney's signature is

proper." Clav, 84 Wn. App. at 561. Indeed, because "the actions required by the
statute are those that generally would be performed by an attorney," the court

reasoned that the attorney's signature "best satisfies the Legislature's intent that



        3There is no evidence in the record that Heinzig's attorney filed with the court an affidavit
of due diligence certifying that attempts were made to serve the defendant personally.
        4Heinzig also relies on Sheldon v. Fettiq. 129 Wn.2d 601, 919 P.2d 1209 (1996), and
Wichert v. Cardwell, 117 Wn.2d 148, 812 P.2d 858 (1991), in an effort to support his position that
the nonresident motorist act must be construed liberally. Neither decision interpreted
Washington's nonresident motorist act.

                                                -8-
No. 72269-7-1/9



there be proof of compliance by a responsible person." Clay, 84 Wn. App. at

562.


       Clav was an acknowledgment of the unique relationship between attorney

and client. The secretary of state, however, is not Heinzig's attorney. Nor is the

registered process server. The secretary could not, whether by action or

inaction, have relieved Heinzig of his statutory duty. In much the same way, the

process server could not have substituted for Heinzig's attorney in certifying that

attempts had been made to serve Hwang personally. Because Heinzig failed to

strictly comply with RCW 46.64.040, service of process was not effected. Given

that the statute of limitation expired on August 12, 2013, the trial court did not err

in granting Hwang's January 30, 2014 motion to dismiss the complaint.

                                          Ill


       Heinzig next contends that Hwang waived his defense of insufficient

process. According to Heinzig, waiver occurred as a result of the delay between

the supposed service upon the secretary of state in June 2013 and Hwang's

motion to dismiss in January 2014. We disagree.

       "The defense of insufficient service of process is waived if not asserted in

a responsive pleading or motion under CR 12(b)(5)." Harvey, 163 Wn. App. at

323 (citing French v. Gabriel, 116 Wn.2d 584, 588, 806 P.2d 1234 (1991)). This

defense may also be waived "if '(1) assertion of the defense is inconsistent with
defendant's prior behavior or (2) the defendant has been dilatory in asserting the

defense.'" Harvey. 163 Wn. App. at 323 (quoting King v. Snohomish County. 146

Wn.2d 420, 424, 47 P.3d 563 (2002)). Significantly, though, in order for the

                                         -9-
No. 72269-7-1/10



waiver doctrine to be applied, the defendant's actions must have caused

prejudice to the plaintiff. Pitman v. Holland Am. Line USA, Inc.. 163 Wn.2d 236,

246-47, 178P.3d981 (2008).

        Hwang raised the defense of insufficient service of process by motion,

which was filed after the time period in which he was permitted to file an answer

had expired. While Heinzig concedes that Hwang did not waive this defense

solely by virtue of raising it after the time to file an answer had expired,5 Heinzig

nevertheless contends that waiver occurred as a result of the length of delay

between filing the complaint and raising the defense which, he maintains,

amounted to dilatory conduct. Heinzig's contention is unconvincing but,

ultimately, unnecessary to address. This is so because Heinzig is unable to

show that he was prejudiced by any delay.

        Assuming, for the sake of argument, that substituted service was

accomplished pursuant to RCW 46.64.040, the date that service became

effective was June 10, 2013, when notice of service upon the secretary was

mailed to Hwang's last known address. See, §xl, Keithlv. 170 Wn. App. at 688

("[B]oth service of two copies of the summons on the secretary of state and

mailing of notice of such service . . . must be accomplished to effect proper

service."). Hence, the time period in which Hwang could have, had he chosen to



         5This concession is well taken, given that the court in Omaits rejected a proposed
definition of a "'timely'" CR 12 motion "as one 'brought within the time to answer.'" 56 Wn. App. at
671; cf Pitman, 163 Wn.2d at 244 ("Nothing in [CR 12(h)(1)] or the state cases supports the
conclusion that asserting an affirmative defense in an untimely answer constitutes waiver.").
         On the other hand, filing an answer within the period allowed by law cannot be
considered dilatory conduct.

                                              -10-
No. 72269-7-1/11



do so, filed an answer began on June 116 and ended on August 15. CR 12(a)(3)

("A defendant shall serve an answer within the following periods: . . . Within 60

days after the service of the summons upon the defendant if the summons is

served ... on the Secretary of State as provided by RCW 46.64.040.").

Admittedly, the 60th calendar day fell on August 10. However, because August

10 was a Saturday and August 11 was a Sunday, and because notice of service

had been mailed to Hwang, he was entitled, by rule, to file an answer three days

after the first weekday following August 10. Compare CR 6(a) ("The last day of

the period so computed shall be included, unless it is a Saturday, a Sunday or a

legal holiday, in which event the period runs until the end of the next day which is
neither a Saturday, a Sunday nor a legal holiday."), wjth CR 6(e) ("Whenever a

party has the right or is required to do some act or take some proceedings within
a prescribed period afterthe service of a notice or other paper upon the party
and the notice or paper is served upon the party by mail, 3 days shall be added
to the prescribed period."), and In re Estate ofToth. 138 Wn.2d 650, 654, 981
P.2d 439 (1999) ("CR 6(e) operates to toll the response time only in cases in
which a party is required to respond within a certain time after being served or

notified.").

        The statute of limitation on Heinzig's claim expired on August 12.

Accordingly, Hwang could have raised the defense of insufficient service of
process in a timely answer on or after the day on which the statutory limitation

        6"In computing any period oftime prescribed orallowed by these rules, by the local rules
of any superior court, by order of court, or by any applicable statute, the day of the act, event, or
default from which the designated period oftime begins to run shall not be included." CR 6(a).

                                               -11 -
No. 72269-7-1/12



period expired. Had Hwang done so, Heinzig would have been unable to cure

the service defect. Confronted with a similar scenario, our Supreme Court held

that prejudice could not be demonstrated. Pitman. 163 Wn.2d at 246-47. In

accordance with that decision, we hold that Heinzig cannot show that he was

prejudiced by the mere passage of time in asserting the defense. Absent a

showing of prejudice, we decline to hold that Heinzig waived the defense of

insufficient service of process.

       Affirmed.




We concur:




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