       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                                                                                C'j
SIMONA VULETIC and MICHAEL                  ;         No. 69515-1-1                  C3        (C
HELGESON, wife and husband,
                                                      DIVISION ONE
                                                                                     C~3       ~±     -T
                     Appellants,            ]

               v.                           ;

DARRELL R. McKISSIC,                        \         UNPUBLISHED                         en    S^T-

                     Respondent.            )         FILED: December 16. 2013




       Cox, J. — Substituted service at a defendant's usual abode requires,

among other things, that the summons be served upon a person who is "then

residenttherein."1 Here, the process server served a summons on the nanny at

Darrell McKissic's home. Because the nanny did not live there, the service was

insufficient. The trial court properly granted McKissic's CR 12(b) motion to

dismiss for insufficient service of process and the running of the statute of

limitations.

       The facts are not disputed. On March 1, 2009, Simona Vuletic and

McKissic were involved in a motor vehicle collision. Nearing the three-year

statute of limitations, Vuletic and her spouse, Michael Helgeson, (collectively

"Vuletic") filed this negligence action against McKissic on December 27, 2011.

       On January 6, 2012, process server, Mark Hillard, handed a summons

and a copy of the complaint to Jill Corr when she answered the door at the home

of McKissic. Hillard later filed a return of service that stated he was "unable to


        1 RCW 4.28.080(15).
No. 69515-1-1/2


find Darrell R. McKissic, named party, so [he] served a person of suitable age

and discretion, then resident therein, at the shared residence and usual abode of

the named party, by delivering such copy to and leaving it with, Jill Corr. nanny

for the defendant."

       Despite the "then resident therein" language in his return of service, Hillard

later testified that Corr told him that she was McKissic's nanny, but she was not

related to McKissic and did not live at his home. Moreover, Corr later testified

that she took the papers from Hillard, set them on McKissic's kitchen counter,

and told McKissic about them. She saw McKissic walk toward the papers, but

she did not see him pick them up.

       On January 26, Levi Bendele appeared as the attorney on behalf of

McKissic. The notice of appearance stated that the appearance did not waive

any affirmative defenses.

       Bendele and Vuletic's attorney, Morris Rosenberg, communicated about

the case over the course of the next three months. There was also some


discovery during this period.

       On March 1, 2012, the three-year statute of limitations for this negligence

action expired. On March 26, the ninety-day period to serve process that related

back by statute to the December 27, 2011 date of filing of this action expired.

       On April 6, Rosenberg sent Bendele completed stipulations and asked

about an answer to the complaint. Rosenberg wrote, "Unless, I missed it, I do

not believe an Answer has been filed on behalf of your client so please get that to

me in the next ten days."
No. 69515-1-1/3


       On April 20, Bendele filed the answer that asserted, for the first time, the

affirmative defenses of lack of service of process, insufficiency of process, and

statute of limitations.


       In July, Vuletic moved for partial summary judgment striking these

affirmative defenses. In response, McKissic moved to dismiss under CR 12(b)

based on insufficient service of process and the statute of limitations.

       The trial court granted McKissic's motion to dismiss "for lack of sufficiency

of service of process." The court also ruled that "[wjaiver and estoppel are not

persuasive, nor applicable here." The trial court implicitly denied Vuletic's motion

without entering an order.   The trial court also denied Vuletic's motion for

reconsideration.


       Vuletic appeals.

                             SUBSTITUTED SERVICE


       Vuletic argues that the trial court erred when it granted the CR 12(b)

motion to dismiss because service of process of the summons and complaint

upon McKissic's nanny was in substantial compliance with the requirements for

substituted service. Because substantial compliance with the statute is not the

proper standard and service was insufficient under the statute, we disagree.

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

court[] obtaining jurisdiction over a party."2 "Whether service of process was
proper is a question of law that this court reviews de novo."3


       2 Harvev v. Obermeit. 163 Wn. App. 311, 318, 261 P.3d 671 (2011).

       3Goettemoeller v. Twist. 161 Wn. App. 103, 107, 253 P.3d 405 (2011).
No. 69515-1-1/4



       Further, this court treats a motion to dismiss as a motion for summary

judgment "when matters outside the pleading are presented to and not excluded

by the court."4 When reviewing an order of summary judgment, an appellate
court engages in the same inquiry as the trial court.5 Thus, this court considers
the facts in the light most favorable to the nonmoving party.6 Summary judgment
is appropriate only if there is no genuine issue of material fact, and the moving

party is entitled to judgment as a matter of law.7

       Under RCW 4.28.080(15), a plaintiff may effectuate "substituted" service

or "abode" service if three requirements are met: "(1) the summons must be left

at the defendant's 'house of his or her usual abode'; (2) the summons must be

left with a 'person of suitable age and discretion'; and, (3) the person with whom

the summons is left must be 'then resident therein.'"8

       Here, only the third requirement is at issue. Specifically, the issue is

whether service upon a nanny, an employee who did not live in the defendant's

house of usual abode, was "then resident therein" at the time of service of the

summons.




      4 Sea-Pac Co., Inc. v. United Food and Commercial Workers Local Union
44, 103 Wn.2d 800, 802, 699 P.2d 217 (1985).

       5 Right-Price Recreation, LLC v. Connells Prairie Cmtv. Council. 146
Wn.2d 370, 381, 46 P.3d 789 (2002).

     6 Indoor Billboard/Wash.. Inc. v. Integra Telecom of Wash., Inc., 162
Wn.2d 59, 70, 170 P.3d 10 (2007).

       7CR 56(c).
       8Salts v. Estes, 133 Wn.2d 160, 164, 943 P.2d 275 (1997) (quoting RCW
4.28.080(15)).
No. 69515-1-1/5


      The supreme court has explained that the word "then" means "the time of

service," and the word "therein" means "the defendant's usual place of abode."9

       In Salts v. Estes, the supreme court held "for purposes of RCW

4.28.080(15) that 'resident' must be given its ordinary meaning—a person is

resident if the person is actually living in the particular home."10 Citing a number
of cases from other jurisdictions, the supreme court explained that "the usual rule

is that service on employees and others who do not reside in the defendant's

home does not comport with due process."11
       Further, the court declined to interpret the term "resident" so that "mere

presence in the defendant's home or 'possession' of the premises [would be]

sufficient to satisfy the statutory residency requirement."12 The court explained,
       Under such a view, service on just about any person present at the
       defendant's home, regardless of the person's real connection with
       the defendant, will be proper. A housekeeper, a baby-sitter, a
       repair person or a visitor at the defendant's home could be served.
       Such a relaxed approach toward service of process renders the
       words of the statute a nullity and does not comport with the




       9 Wichert v. Cardwell, 117Wn.2d148, 151, 812 P.2d 858 (1991).

      10133 Wn.2d 160, 162, 170, 943 P.2d 275 (1997) (concluding that "a
person who was not living in the defendant's home, but agreed to take in his mail
and feed his dog while he was on vacation" was not a "resident" under RCW
4.28.080(15)).

       11 Jd. at 168-69 (citing Hardy v. Kaszvcki &Sons Contractors. Inc., 842 F.
Supp. 713 (S.D.N.Y. 1993); Hasenfus v. Corporate Air Servs., 700 F. Supp. 58
(D.C. 1988); Polo Fashions Inc. v. B. Bowman &Co.. 102 F.R.D. 905 (S.D.N.Y.
1984); Zuckerman v. McCullev. 7 F.R.D. 739 (E.D. Mo. 1947); Bible v. Bible, 259
Ga. 418, 383 S.E.2d 108 (1989)).
       12
            Id. at 169-70.
No. 69515-1-1/6


       principles of due process that underlie service of process
       statutes.1131

       Here, the parties agree in their briefing that the process server handed

McKissic's nanny, Corr, the summons and complaint. They also agree in the

same briefing that Corr did not live in McKissic's home at the time of service.

Under Salts and the plain words of the statute, Corr was not "then resident

therein" for the purposes of substituted service. That is because she was not

"actually living in [McKissic's] home" at the time of service.14

       We also note that the Salts court indicated that it was not choosing to

relax the "resident" requirement to include people like babysitters.15 For

purposes of this analysis, Corr, a nanny employed by the defendant, is

sufficiently similar to a babysitter. Corr's mere presence at the home as

McKissic's employee does not satisfy the "resident" requirement of RCW

4.28.080(15).16
       Vuletic argues that Washington only requires substantial compliance with

the substituted service requirements. He cites Sheldon v. Fettig to support this

assertion.17 But that case does not do that.




       13 Id. at 170 (emphasis added).
       14 See Salts. 133 Wn.2d at 170.

       15 Id

       16 See id. at 169-70.

       17 Appellant's Opening Brief at 7 (citing Sheldon v. Fettig. 129 Wn.2d 601,
919 P.2d 1209 (1996)).
No. 69515-1-1/7



       In Sheldon, the supreme court examined the term "house of [defendant's]

usual abode" in RCW 4.28.080(15) and concluded that it should be "liberally

construed to effectuate service and uphold jurisdiction ofthe court."18
       Here, the definition of the term "resident" is at issue, not the term "house

of [defendant's] usual abode." As discussed above, Salts defined the former

term as a person "actually living in the particular home [of usual abode]" at the

time of service.19 Moreover, this definition of "resident" came after Sheldon's

recognition of "liberal construction" principles.20 Thus, the definition in Salts is
the law.

       We also note that the Salts court distinguished Sheldon by characterizing

Sheldon as marking the outer boundaries of what the service statutes required.21
In Salts, the supreme court was not prepared to extend the law beyond the facts

of Sheldon.

       For these reasons, Vuletic's reliance on Sheldon and her corresponding

arguments are not persuasive.

       Similarly, Vuletic's reliance on Wichert v. Cardwell is not helpful.22 There,
the supreme court held that service upon a defendant's adult child staying



       18 Sheldon, 129 Wn.2d at 609 (alteration in original).

       19 Salts, 133Wn.2dat170.

       20 Compare id. at 160, with Sheldon, 129 Wn.2d at 601.

       21 Salts, 133Wn.2dat166.

       22 Appellant's Opening Brief at 10 (citing Wichert v. Cardwell, 117 Wn.2d
148, 812 P.2d 858 (1991)).
No. 69515-1-1/8


overnight at her parents' home was sufficient service upon the defendant

parents.23 But the Salts court distinguished Wichert from that case because "the

daughter was related to the defendants, and had actually slept in the home of the

defendants the previous night at the time service was accomplished."24 As in
Salts, these facts are not present in this case.

       Here, service on a nanny, an employee of the defendant who did not live

in the defendant's house and was not related to the defendant, falls outside these

boundaries.


       Vuletic also points out that Salts was a 5 to 4 decision, and that "the four

Justice dissent would have upheld service under facts significantly less

compelling than the facts in the instant case." That is irrelevant. The definition of

the five-member majority is the law in this state.

       Finally, Vuletic cites Brown-Edwards v. Powell to support the assertion

thatthe requirements of substituted service were met.25 But that case is also
distinguishable. There, a process server inadvertently served the defendants'

neighbor, who had the same first name as one of the defendants.26 The
neighbor brought the papers to the defendants, and she later signed an affidavit




       23 Wichert, 117 Wn.2d at 152.

       24 Salts, 133Wn.2dat169.

       25 Appellant's Opening Brief at 12-13 (citing Brown-Edwards v. Powell,
144 Wn. App. 109, 182 P.3d 441 (2008)).

       26 Brown-Edwards, 144 Wn. App. at 111.
No. 69515-1-1/9


swearing that she was competent to serve papers and she had served them.27

Division Three concluded that the neighbor properly served the defendants.28

       Here, in contrast, Corr did not give the summons and complaint to

McKissic. She left the documents on the counter and did not see him pick them

up. Nor did she sign an affidavit of service indicating that she had handed the

summons and complaint to him. For these reasons, Brown-Edwards is not

helpful.

       In sum, the trial court properly concluded that there was a "lack of

sufficiency of service" by serving Corr. At the time of service, Corr was not "then

resident" in McKissic's home.


                 WAIVER OF SERVICE OF PROCESS DEFENSE

       Assuming without conceding that service of process on Corr was

insufficient, Vuletic argues that McKissic waived this defense. We disagree.

       Washington courts recognize that in certain cases, the common law

doctrine of waiver will preclude a defendant from asserting the defense of

insufficient service of process.29 "[A] defendant may waive an affirmative
defense if either (1) assertion of the defense is inconsistent with defendant's prior

behavior or (2) the defendant has been dilatory in asserting the defense."30



       27 Id

       28 Id at 112.
       29 Lvbbert v. Grant County, 141 Wn.2d 29, 38-39, 1 P.3d 1124 (2000).
       30
            King v. Snohomish County, 146 Wn.2d 420, 424, 47 P.3d 563 (2002).
No. 69515-1-1/10



       "'[T]he doctrine of waiver is sensible and consistent with ... our modern

day procedural rules, which exist to foster and promote the just, speedy, and

inexpensive determination ofevery action.'"31
       This doctrine 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."32
       Whether a defendant has waived an affirmative defense, such as

insufficient service of process, is a fact-specific inquiry.33
                                    Prior Behavior


       Vuletic first argues that McKissic waived the defense of insufficient service

of process because his assertion of the defense was inconsistent with McKissic's

prior behavior. She points to the following behavior: (1) McKissic's statements

that he wanted to quickly resolve the claims, (2) McKissic's participation in

discovery, and (3) McKissic's failure to answer interrogatories related to service.
She contends that the doctrine of waiver applies to this case given this prior

behavior along with the fact that McKissic did not assert the defense until after
the statute of limitations expired. None of these support waiver.




       31 Id (alteration in original) (internal quotation marks omitted) (quoting
Lvbbert, 141 Wn.2dat39).

       32 Id

       33 See Lvbbert. 141 Wn.2d at 38-39; see also 14 Karl B. Tegland,
Washington Practice: Civil Procedure § 4:44 (2d ed. 2013) (explaining that
whether the doctrine of waiver applies is "fact-specific").

                                               10
No. 69515-1-1/11


       In Harvey v. Obermeit, this court explained three circumstances where

courts have found that a partywaived a defense based on prior behavior.34

       First, a party may waive a defense where "the party's actions indicate that

it has abandoned the defense."35 For instance, in King v. Snohomish County, the
defendants asserted a "claim filing" defense in their answer, but they "did not

clarify the defense in response to [a later] interrogatory," and they "filed a motion

for summary judgment that did not mention the defense."36 Further, the parties
engaged in "45 months of litigation and discovery" before making a motion to

dismiss based on this defense.

       Second, a party may waive a defense "where there are indications the

defendant actively sought to conceal the defense until after the expiration of the

statute of limitations and 90-day period for service."37 For example, in Romiue v.
Fairchild, the record showed that plaintiff's counsel had written to defense

counsel before the statute of limitations expired and stated that "it was his

understanding defendants had been served."38 At that time, defense counsel




       34163Wn. App. 311,323-24, 261 P.3d 671 (2011).

       35 Id at 323.

       36 ]d (citing King v. Snohomish County, 146 Wn.2d 420, 47 P.3d 563
(2002)).

       37 ]d at 324.
       38
            60 Wn. App. 278, 281-82, 803 P.2d 57 (1991).

                                             11
No. 69515-1-1/12


knew that plaintiff's counsel had the wrong address for the defendant "yet he

chose to say nothing until after the statute of limitation had expired."39
       Finally, a party may waive a defense "where a party engages in

considerable discovery not related to the defense."40 "However, the mere act of
engaging in discovery 'is not always tantamount to conduct inconsistent with a

latter assertion of the defense of insufficient service."'41 "Instead, the cases

indicate that a party must do more than simply conduct discovery."42
       This court cited Lvbbert v. Grant County to show how a defendant

engages in "considerable discovery not related to the defense."43 There, "the
defendant acted as if it were preparing to litigate the merits of the case by

engaging in discovery" that did not relate to sufficiency of service for nine

months.44 Additionally, the defendant "associate^] with outside counsel;

discuss[ed] the merits of the case and the possibility of mediation with opposing

counsel; and [failjed to timely respond to the plaintiff's interrogatory asking

whether the defendant planned to rely on any affirmative defenses, where a




       39 Id at 282.

       40 Harvey. 163 Wn. App. at 324.

       41 id (quoting Lvbbert, 141 Wn.2d at 41).

       42 Id. at 325.

       43 Id at 324 (citing Lvbbert v. Grant County, 141 Wn.2d 29, 41, 1 P.3d
1124(2000)).

       44 Id at 325 (citing Lvbbert, 141 Wn.2d at 32).

                                              12
No. 69515-1-1/13


timely response would have allowed the plaintiff several days to cure defective

service."45

       Here, none of the three circumstances that Harvey outlines are present.

       First, the record shows that soon after McKissic asserted the insufficient

service of process defense in his answer, he moved to dismiss Vuletic's claims.

Thus, unlike King, McKissic did not abandon the defense.46

       Second, unlike Romjue, there was no evidence that McKissic was

concealing the defense or lying in wait for the statute of limitations to expire.47

       This record shows that the inaccurate return of service was filed on


January 6, 2012. Contrary to the evidence later provided, that return of service

incorrectly recited that Corr was a resident at McKissic's at the time of service. It

appears that neither side was aware of this inaccuracy until Vuletic requested an

answer. Vuletic's request came in April, which was after the statute of limitations

expired in March.

       More specifically, on April 6, Rosenberg e-mailed Bendele regarding a

number of issues, including Bendele's failure to answer the complaint.

Rosenberg followed up on this e-mail on April 18. In McKissic's motion to

dismiss, he asserts that Bendele did not know about the inaccurate return of

service until April 18, when Bendele started working on the answer. Two days

later, Bendele filed an answer asserting the service of process defense. There is


       45 id (citing Lvbbert, 141 Wn.2d at 31-34).

       46 See King, 146 Wn.2d at 426.
       47 See Romiue, 60 Wn. App. at 282.

                                              13
No. 69515-1-1/14



nothing in the record to dispute McKissic's assertion that he did not know there

was an insufficient service defense until Vuletic requested an answer, which was

after the statute of limitations had expired.

       Vuletic argues that one of McKissic's statements disputes the assertion.

She argues that "at his deposition McKissic testified that he became aware that

there was a service of process issue from Bendele or Bendele's office." While

McKissic made this statement during his deposition, this statement is not

necessarily contrary to the assertion by Bendele. This statement does not

indicate when Bendele learned about the defense. Thus, Vuletic presents no

evidence to dispute this assertion.

       Because there was no evidence that McKissic was concealing the defense

or lying in wait for the statute of limitations to expire, the second circumstance is

not present in this case.

       The closer question is whether the third circumstance is present: whether

McKissic engaged in "considerable discovery not related to the defense."48
       The record shows that starting in January 2012, the parties' attorneys

exchanged phone calls and emails about a settlement package and contact

information for medical providers.

       The parties' attorneys continued to communicate during February and

March. In March, the parties discussed the possibility of scheduling Vuletic's

deposition in May. On March 22, Bendele sent Rosenberg medical and




       48 Harvey, 163 Wn. App. at 324 (citing Lvbbert, 141 Wn.2dat41).

                                                14
No. 69515-1-1/15


employment stipulations, requests for a statement of damages, interrogatories,

and requests for production.

       Comparing these undisputed facts to the facts in Lvbbert. it appears that

McKissic did not engage in "considerable discovery not related to the defense."49

Although McKissic engaged in some discovery, he did so for approximately three

months, unlike the defendant in Lvbbert, who engaged in discovery for nine

months.50 Moreover, as McKissic argues, the discovery requests appear to have
been "generic and routine." When Bendele discovered the availability of the

insufficient service of process defense, he promptly asserted it. Also, unlike

Lvbbert, McKissic did not associate with outside counsel.51

      Vuletic argues that "the instant case is a stronger one than Lvbbert for

application of waiver." Specifically, she points to the fact that on February 2,

Vuletic served pattern interrogatories on McKissic, which included the question:

"Do you allege insufficiency of process or of service of process? If so, please

state the facts upon which you base your allegations." Answers to the

interrogatories were due 30 days after service. As in Lvbbert. she contends that

if McKissic completed the interrogatories by this deadline, she could have

perfected service before the statute of limitations expired.52 But, unlike Lvbbert,



       49 id

       50 See Lvbbert.       141 Wn.2d at 32.


       51 See id.   at 31-•34.


       52 See id.   at 42.


                                                15
No. 69515-1-1/16


the record here does not show that parties discussed McKissic missing the

deadline for what appears to be "generic and routine" interrogatories.53
       Moreover, unlike Lvbbert, the fact that substituted service was improper

was not immediately apparent from the return ofservice.54 In Lvbbert, the
supreme court noted that the county "knew or should have known that the

defense of insufficient service of process was available to it" because it was

apparent from the face of the process server's affidavit.55 In contrast, here, the
defense was not apparent from the face of Hillard's affidavit. The return of

service stated that McKissic's nanny was a resident of his home, and it was not

unreasonable for Bendele to assume that the nanny lived in the home. While this

argument appears to go more toward the second circumstance for waiver, it is

not persuasive given that the defense in this case was more difficult to discover

than in Lvbbert.

       In sum, the undisputed facts show that McKissic did not waive the service

of process defense because he engaged in "considerable discovery not related

to the defense."56




       53 See id (explaining that the county "did more than just undertake
discovery" because its "detective contacted Lybberts' counsel in order to make
certain that the [c]ounty correctly understood the nature and extent of the
Lybberts' interrogatories").

       54 See id.

       55 id
       56 See Harvey. 163 Wn. App. at 324 (citing Lybbert, 141 Wn.2d at 41).

                                             16
No. 69515-1-1/17


      Vuletic argues that Blankenship v. Kaldor and Butler v. Joy support a

finding that McKissic waived his insufficient service of process defense.57 But

those cases are distinguishable.

       In Blankenship. Division Three of this court concluded that the defendant

waived an insufficient service of process defense.58 It pointed to three
circumstances that supported this conclusion.59 First, the parties engaged in
discovery: both parties propounded interrogatories and requests for production,

the defendant deposed the plaintiff, and the defendant took photographs of her

residence before asserting the defense.60 Second, the process servertestified
that the defendant's father assured the process server that he would turn the

legal documents over to his insurance company who also insured his daughter,

the defendant.61 Third, the court noted that if defense counsel would have

"seasonably attempted to contact his client, he would have learned she resided

in Portland and not at her father's house at the time of service."62

       Here, in comparison, McKissic appears to have engaged in less discovery

than the defendant in Blankenship. He did not take actively collect evidence or


       57 Appellant's Opening Brief at 22-24, 25, 28 (citing Blankenship v. Kaldor.
114 Wn. App. 312, 57 P.3d 295 (2002); Butler v. Joy, 116 Wn. App. 291, 65 P.3d
671 (2003)).

       58 Blankenship, 114 Wn. App. at 319-20.



       60 id at 319.
       61 id at 320.

       62 Id.

                                             17
No. 69515-1-1/18


depose any witnesses before asserting the defense. Further, the nanny was not

related to McKissic or tied to the case the way the defendant's father was

involved with the case in Blankenship. Finally, Bendele appeared to be in

communication with McKissic, but this communication would not necessarily

have revealed that the nanny did not live with McKissic like it would have

revealed the defendant's residence in Blankenship.

       Butler is also distinguishable. There, Division Three focused on the fact

that the defendant's first pleading was a motion for summary judgment asserting

that the plaintiff's complaint presented no issue of fact as to negligence, liability,

or causation.63 This motion made no mention of an insufficient service of

process defense.64 Thus, the absence of this defense in the motion was
inconsistent with the later assertion of the defense in the answer.65

       Here, McKissic's first pleading filed with the court was his answer

asserting the affirmative defense of insufficient service of process. Unlike Butler,

this pleading was not inconsistent with any other pleading. Thus, the conclusion

in Butler is not helpful.

       While some of the facts in the cases where waiver applied are also

present in this case, those cases are distinguishable when all of the undisputed

facts of this case are considered. The trial court did not err when it concluded

that McKissic did not waive this defense based on his prior behavior.


       63 Butler, 116 Wn. App. at 294, 298.

       64 Id at 294.

       65 Id.


                                              18
No. 69515-1-1/19



                            Dilatory in Asserting Defense

       Vuletic next argues that McKissic waived the defense of insufficient

service of process because he was dilatory in asserting the defense.

Specifically, Vuletic contends that McKissic was dilatory because he did not file

an answer asserting the defense until three and a half months after the return of

service was filed. Because McKissic promptly asserted the defense in his

answer after first learning of it, we disagree.

       Generally, a defendant is not dilatory in asserting a defense if the

defendant asserts the defense in the answer.66 Further, delay in filing an answer
does not necessarily waive a defense.67
       In French v. Gabriel, the supreme court concluded that the defendant was

not dilatory in asserting the defense of insufficient service of process even

though he asserted the defense in an untimely answer.68 In reaching this
conclusion, the court highlighted the following: (1) the plaintiff did not ask the

defendant to file an answer sooner than he did; (2) when the defendant failed to

file a timely answer, the plaintiff could have moved for a default judgment but

chose not to do so; and (3) the plaintiff did not object to the untimely answer.69




       66 King. 146 Wn.2d at 424.

       67 See French v. Gabriel, 116 Wn.2d 584, 593-94, 806 P.2d 1234(1991);
Gerean v. Martin-Joven, 108 Wn. App. 963, 973, 33 P.3d 427 (2001).

       68 116 Wn.2d 584, 593-94, 806 P.2d 1234 (1991).

       69 Id. at 593.


                                              19
No. 69515-1-1/20


The supreme court explained that "'[w]hile not to be condoned, mere delay in

filing an answer does not constitute a waiver of an insufficient service defense.'"70
         Here, McKissic asserted the defense in an untimely answer. But like

French, similar facts support the conclusion that the failure to file the answer

when due did not waive the defense. Vuletic could have moved for an order of

default or could have objected when McKissic failed to timely answer. Instead,

Vuletic asked McKissic to file an answer after the statute of limitations had

already expired. As discussed above, this record indicates that Bendele did not
know of the insufficient service of process until after Rosenberg requested an

answer. Once Bendele discovered the defense, he promptly asserted it.

         On this record, there is no showing of waiver of the defense by dilatory

conduct.

         Vuletic argues that French should not control this case because it
"predates" waiver cases such as Lvbbert and King.71 While this is true, these
latter cases do not overrule French.72 Rather, these cases distinguish French in

their factual analyses.73 Thus, this argument is not helpful.
         Vuletic also contends that "thefacts in French show that while the defense

 had failed to answer within twenty days ofservice, it did answer more than a year

         70 Id at 593-94 (alteration in original) (quoting French, 57Wn. App. at
 222).

         71 Appellant's Reply Brief at 10-14 (citing Lvbbert, 141 Wn.2d at 29; King,
 146Wn.2dat420).

         72 Lvbbert, 141 Wn.2d at 44; King, 146 Wn.2d at 425.

         73 id

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before the statute would run." But the supreme court's discussion regarding the

statute of limitations was in response to French's equitable estoppel argument.74

Further, as noted above, Vuletic did not request an answer until after the statute

of limitations expired. Thus, this argument is not persuasive.

                              EQUITABLE ESTOPPEL

       Vuletic argues that the trial court erred when it granted the motion to

dismiss because McKissic should have been estopped from asserting the

defense of insufficient service of process. We disagree.

       "Equitable estoppel is based on the notion that 'a party should be held to a

representation made or position assumed where inequitable consequences

would otherwise result to another party who has justifiably and in good faith relied

thereon.'"75 "The elements of equitable estoppel are: '(1) an admission,

statement or act inconsistent with a claim afterwards asserted, (2) action by

another in [reasonable] reliance upon that act, statement or admission, and (3)

injury to the relying party from allowing the first party to contradict or repudiate

the prior act, statement or admission.'"76




       74
            See French, 116 Wn.2d at 594-95.

       75 Lvbbert, 141 Wn.2d at 35 (quoting Kramarevckv v. Dep't of Soc. &
Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 (1993)).

       76 id (quoting Bd. of Regents v. City of Seattle, 108 Wn.2d 545, 551, 741
P.2d11 (1987)).


                                              21
No. 69515-1-1/22



       "Equitable estoppel must be shown 'by clear, cogent, and convincing

evidence.'"77

       In Lvbbert, the supreme court explained that the first element of equitable

estoppel was met because the defendant "acted in a way that was inconsistent

with its eventual assertion of the defense of insufficient service of process."78

The court stated, "For nine months following its attorneys' appearance in

response to the [plaintiffs'] duly filed summons and complaint, the [defendant]

gave multiple indications that it was preparing to litigate this case."79
       Here, unlike Lvbbert, the first element of equitable estoppel has not been

established. As discussed above, the undisputed facts show that some of

McKissic's behavior was inconsistent, but it was not enough given the short time

period. Unlike Lvbbert, McKissic did not act like he was going to litigate the

merits of the case for nine months.80 Instead, McKissic merely engaged in

preliminary discussions and discovery for three months before discovering the

defense.

       In sum, even after viewing the evidence in the light most favorable to

Vuletic, she has not established the first element by clear, cogent, and




       77 li (quoting Berschauer/Phillios Constr. Co. v. Seattle Sch. Dist. No. 1.
124Wn.2d816, 831,881 P.2d 986 (1994)).
       78
            Id. at 35-36.


       79 Id.

       80 See id.


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No. 69515-1-1/23


convincing evidence. McKissic is not equitably estopped from asserting the

insufficient service of process defense.

       Having failed to establish the first element, all other factual disputes for the

other elements are not material for summary judgment purposes. Accordingly,

we do not discuss them further.

                             DISCOVERY SANCTION


      Vuletic argues that the trial court abused its discretion when it implicitly

denied her motion for partial summary judgment to strike McKissic's affirmative

defenses as a discovery sanction. We disagree.

       CR 37(d) authorizes a court to impose a broad range of sanctions for

noncompliance with discovery rules. Specifically, a trial may impose sanctions if

a party fails to "serve answers or objections to interrogatories submitted under

rule 33, after proper service ofthe interrogatories."81 Under CR 33(a),
"Interrogatories may, without leave of court, be served . .. upon any other party

with or after service of the summons and complaint upon that party."

      A trial court's decision on sanctions will not be disturbed on appeal absent

a clear showing of abuse of discretion.82
       Here, the trial court did not abuse its discretion when it implicitly denied

Vuletic's motion for summary judgment striking affirmative defenses as a




       81 CR 37(d)(2).
       82 Burnet v. Spokane Ambulance. 131 Wn.2d 484, 494, 933 P.2d 1036
(1997).


                                              23
No. 69515-1-1/24


sanction. As previously discussed, the affirmative defense was proper and there

was no reason to grant the motion to strike it.

       Vuletic contends that if McKissic had answered the interrogatories

regarding process of service "within the mandated thirty days, plaintiffs would

have had three weeks to cure any defect and to effect service upon McKissic."

She cites Lvbbert to support this argument.83 But, as Vuletic acknowledges,
Lvbbert did not address discovery sanctions.84 She cites the portion ofthe
opinion that addresses waiver.85 Thus, this argument is not persuasive.
       McKissic also argues that the trial court did not abuse its discretion when it

did not strike the affirmative defenses as a discovery sanction because Vuletic

failed to follow CR 26's meet and confer requirement. Vuletic argues that the

"trial court has the inherent power under the appropriate circumstances to grant

the requested relief whether or not there had been a CR 26(i) conference." The

parties present different interpretations ofAmy v. Kmart ofWashington LLC86
and Magana v. Hyundai Motor America87 to support their respective arguments

regarding CR 26's requirements. But, given the discussion above, we need not

address these arguments.




       83 Appellant's Opening Brief at 34 (citing Lvbbert, 141 Wn.2d at 42).

       84 Jd

       85 Jd (citing Lvbbert. 141 Wn.2d at 42).
       86 153 Wn. App. 846, 223 P.3d 1247 (2009).

       87 167 Wn.2d 570, 220 P.3d 191 (2009).

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No. 69515-1-1/25



            MOTION TO STRIKE AND REQUEST FOR SANCTIONS

      After Vuletic submitted her reply brief, McKissic filed a "surreply" that

addressed two factual disputes. Vuletic subsequently moved to strike the

"surreply" and requested that the court impose sanctions under RAP 18.9. We

grant the motion, disregard the unauthorized surreply, and impose sanctions.

       Under RAP 10.1(b), the surreply is not authorized. McKissic concedes

that he failed to make a motion to allow for additional briefing. Consequently, we

disregard this unauthorized brief.

       Under RAP 18.9(a), this court may order a party who fails to comply with

the rules to pay terms or compensatory damages to any other party who has

been harmed by that violation. Based on this rule, we impose sanctions because

McKissic failed to comply with RAP 10.1. McKissic shall pay Vuletic the

reasonable expenses of preparing and filing the motion to strike.88 The amount
shall be determined by a commissioner of this court following submission to the

court of proper proof of such expense.

       We affirm the order granting McKissic's motion to dismiss. We also

disregard the "surreply" and impose sanctions under RAP 18.9(a) for the

necessity to respond to it.

                                                         &K.O.

                                                                          1
       88 See. e!g., Chevron U.S.A.. Inc. v. Puget Sound Growth Mgmt. Hearings
Bd., 156 Wn.2d 131, 139-40, 124 P.3d 640 (2005).

                                            25
