 

lN THE COURT OF APPEALS OF THE STATE OF WASH|NGTON

BRANDON VVEI_CH, a singie man,

No. 76771~2~|
Responc|ent,

DiV|SlOl\i ONE
v.

ROGER R. BOARDMAN, a Single man,

and UNPUBL|SHED OP|N|ON

C|TY OF BURLINGTON, a
municipal corporation,

FlLED: October 22, 2018

Petitioner.

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Defendant, )
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SlviiTr-i, J. -- The city of Buriington (City) seeks discretionary review of the
trial oourt's order denying its motion for summary judgment and holding that the
City Was properly served Because Brandori Welch did not serve the mayor, the
city cierk, or the mayor's designated agent for acceptance ot service, as required
by RCW 4.28.080(2), the trial court erred in denying the City's motion for
summary iudgment. On appea|, Welch presents several alternative legai
theories of personai jurisdiction on Wnich We can affirm the trial court's order
denying summary judgmentl including the discovery ruie1 waiver and estoppel1

and the toliing of the statute of limitations But, Welch is not abie to establish

NO. 76771-2-|/2

personal jurisdiction on any of these bases. Therefore, We reverse and direct the
trial court to enter summary judgment in favor of the City.
FACTS

On August 15, 2013, Welch’s motorcycle coiiided with Roger Boardnian’s
car in an intersection in the city of Burlington. in Septernber 2013, V\leich sued
Boardman for negligence in November 2013, the trial court granted partial
summary judgment against Boardman on the issue of liabilityl

According to a declaration filed by VVelch’s attorney, in .iuly or August
2015, the attorney e-maiied both are amended complaint and a proposed agreed
order to arnend the compiaint to Boardman’s attorney The amended complaint
alieged that the City negiigeht|y designed and maintained the intersection where
the accident occurred Boardman’s attorney maiied the proposed order with his
signature to Weich’s attorney and VVeich’s attorney then secured an order from
the court allowing the amended compiaint to be filed. `l'he amended complaint
Was filed with the court on August 26, 2015.

On August 31, 2015, Welch served the summons and amended complaint
on the city administrator. The City filed an answer on October 29, 2015, stating,
“P|aintiff has faiied to property serve the Surrimons and Corhplaint upon
Defendant City as required by the iaws of the State of Washington and therefore
the court has no jurisdiction over the City." Cieri<’s Papers at 80.

On January 18, 2017, the City rnoved for summary judgment arguing that
V\Ieich faiied to properly serve the mayor or the city clerk, as required by statute,

within the statute of limitations Ori January 24, 2017, Welch served the mayor

NO. 7677‘!-2-1/3

With the summons and amended complaint at his home address Weich served
the city clerk with the summons and amended compiaint on February 1, 2017.

in opposition to the City’s motion for summary judgment, We|ch argued
that summaryjudgment was not proper for severai reasons. First, he argued that
the statute of iimitations was tolled by RCW 4.16.170. Second, he argued that
the statute of limitations did not expire because his cause of action against the
City did not accrue until Aprii 2014, when he iearned of the negligent design of
the intersection Third, he argued that he complied with RCW 4.28.080(2)
because the city administrator was designated by the mayor and the city council
to accept “compiaints” under Buriington i\/lunicipai Code (Bi\/iC) 2.08.030. Fourth,
he argued that the City was estopped from asserting insuchiency of service
because the city administrator accepted service in this case and previous cases
without objection Fina|iy, he argued that the City waived any objection to service
ot process because it engaged in discovery before moving for summary
judgment

The trial court denied the City’s motion for summary judgment because
“service on the city was effectuated when the city administrator was served." _i_d__..
at 491. The court aiso heid that “there [was] no waiver or estoppei arising from
the City’s actions in such prior cases, as the City alleged insufficiency of service
in its answer in this matter." jig_._ The trial court denied the City’s motion for
reconsideration lt then certified the issue of sufficient service of process as

reviewable under RAP 2.3(b)(4). VVe granted discretionary review.

NO. 76771-2»1/4

ANALYSlS
Mavor’s _Desionated Agem‘ for Service of Summons

The City argues that the triai court erred in denying its motion for summary
judgment because the BMC 2.08.030 does not designate the city administrator
as the mayor’s agent VVe agree and hold that service on the city administrator
cannot be the basis for personal jurisdiction over the City.

The construction of a city ordinance is a question of iaw reviewed de novo.
Seatt|e l-tous. Agth. v. City of Seattie, 3 Wn. App. 2d 532, 538, 416 P.3d 1280
(2018) (citing S|easman v. Citv of Lacev. 159 Wn.2d 639, 642-43, 151 P.3d 990
(2007)). “"i”he same rules of statutory construction apply to the interpretation ot
municipal ordinances as to the interpretation of state statutes.’" § (quoting Ly
of Seattie v. Green, 51 Wn.2d 871, 874, 322 P.2d 842 (1958)). in interpreting a
statute, this court's fundamental objective is to ascertain and carry out the
|egisiature’s intent. lVlanaLy v. Anderson, 176 Wn.2d 342, 350-51, 292 P.3d 96
(2013) (citing Dep’t of Ecoiogv v. Cam;)beil & Gwinn, i_LC, 146 Wn.2d 1, 9, 43
P.3d 4 (2002)). “Statutory interpretation begins with a statute’s plain meaning.”
§ at 352. The plain meaning "is to be discerned from the ordinary meaning of
the ianguage at issue, the context of the statute in which that provision is found,
reiated provisions, and the statutory scheme as a whole." State v. Engei, 166
Wn.2d 572, 578, 210 P.3d 1007 (2009). The court may use a dictionary to
discern the plain meaning of an undefined statutory term Nissen v. Pierce
_C_;_o_g_r_i_ty, 183 Wn.2d 863, 881, 357 P.3d 45 (2015) (citing i~iomeStreetl inc. v.

Dep‘t of Revenue, 166 Wn.2d 444, 45‘i, 210 P.3d 297 (2009)). in determining

No. 76771-2-¥/5

the plain meaning of a statute, the court “must not add words where the
legislature has chosen not to include them." Rest. Dev., lnc. v. Cananwii|, inc.,
150 Wn.2d 674, 682, 80 P.3d 598 (2003). if the statute is unambiguous1 the
court’s inquiry is atari end. State v. Arrnendariz, 160 Wn.2d 106, 110, 156 P.3d
201 (2007).

RCW 4.28.080 provides the method for serving an incorporated city:

Service made in the modes provided in this section is personal

service. The summons sha|i be served by delivering a copy

thereof, as follows:

(2) if against any town or incorporated city in the state, to the

rnayor, city manager, or, during normal office hours, to the mayor’s

or city manager's designated agent or the city clerk thereof
“VVhen a statute designates a particular person or ofticer upon whom service of
process is to be made in an action against a municipaiity, no other person or
officer may be substituted." Meadowdaie Neigh. Comm. v. Citv of Edmonds, 27
Wn. App. 261, 264, 616 P.2d 1257 (1980) (citing 56 Aivi. JUR. 20 lViunicipal
Corporations, Counties, and Other Politica| Subdivisions § 854 (1971); 64 C.J.S.
i\/lunicipa| Corporations § 2205(0)(3) (1950)).

The City does not have a city manager, so under this statute, a party must
serve either the mayor or, during normai office hours, the mayor’s designated
agent or the city clerk. The mayor testified that he had “not deiegated the

authority to receive service of process on behalf of the City ot Burlington to any

City official not specified in RCW 4.28.060(2).”1 C|erk’s Papers at 121-22. Here,

 

1 Weich moved to strike this deciaration and other citations in the City’s
opening brief. Because he did not object to the admission of the mayor's
declaration on summary judgment, we deny his motion to strike it on appeal.

5

NO. 76771-2-|/6

VVe|ch served the city administrator on August 31, 2015, But he did not serve the
mayor or the city clerk until January 2017, after the statute of limitations expired
On summary judgment, Welch argued that the city administrator is the
mayor’s designated agent under BlV|C 2.08.030, Which states:
lt shall be the responsibility and duty of the administrator to:

C. Assist the mayor in day-to-day operations which sha|i inciude the
handiing of complaints and talking with the public.

Nl. investigate and make recommendations to the city councii and
mayor on all complaints referred to him/her and or received by
him/her concerning city business
(Emphasis added.) The trial court interpreted the term “compiaints" in section C
above to inciude a compiaint in the legai sense:
Under the handling of complaints l would think that a compiaint is a
complaint And that the city administrator handies compiaints. And
he can be the guy you hand the compiaint to. And when you do
you’ve served the City of Burlington.
Report of Prooeedings (Feb. 16, 2017) at 26.
Here, there are no genuine issues of material fact. The issue is legai:

whether BlVlC 2.08.030 designates the city administrator as the mayor's agent for

accepting a summons under RCW 4.28.080(2). We hold that it does not.

 

Bonnevi|le v. Pierce Countv, 148 VVn. App. 500, 509l 202 P.3d 309 (2008) (“lf a
party fails to object or bring a motion to strike deficiencies in affidavits or other
documents in support of a motion for summary judgment, the party Waives any
defects.") (citing Smith v. Showa|ter, 47 Wn. App. 245, 248, 734 P.2d 928
(1987)). We also deny Welch’s motion to strike the City’s citations to an
unpublished case and the City of Kirl<iand's code because the unpublished case
was properly cited and the code is not evidence, but |aw. S_e_e El|is v. City of
Seattle, 142 Wn.2d 450, 460 n.3, 13 P.3d 1065 (2000) (holding that a fire code
provision cited in an appellate brief but not raised to the trial court couid be
considered because it “is not evidencel it is law").

6

NO. 76771-2-|/7

BlV|C 2.08.030 does not include any reference to “service,” “summons," or
“designated agent"--the key terms in RCW 4.28.080(2). The only term that it
includes is “comp|aints,” which is not used in RCW 4.28.080(2). “Complaint” is
not defined in Titie 2 of the BNiC. But BlV|C 1.04.030 explains how Words in the

code should be interpreted:

A|l words or phrases shall he construed according to the common
and approved usage of the language, but technical words and
phrases and such others as may have acquired a peculiar and
appropriate meaning in the iaw shall be construed and understood
according to such pecuiiar and appropriate meaning

“Complaint" can have a technical meaning within the law, and its dictionary
definition includes that meaning:

‘t a cbs ; a cry or ioud utterance or series of utterances of pain,
rage, or sorrow : grieved or sorrowful outcry b : a formerly popular
poem that iaments or protests unrequited love or tells of personal
misfortune, misery, or injustice c : the act or action of expressing
protest, censure, or resentment : expression of injustice . . . d :
formal allegation or charge against a party made or presented to
the appropriate court or officer (as for a wrong done or a crime
committed) and variously applied (as to the initial bill in
proceedings in equity, the declaration in a common-law pleading,
the statement of claim under the English practice acts, and the
initial pleading under the code practice in various states of the
U.S.) 2 a : something that is the cause or subject of protest or
grieved outcry . . . b : an ailment or disease of the body.

VVEssTER’s Ti-iino NEW lNTERNATioNAL DicTioNARY at 464 (2002) (emphasis
added). But where the code acknowledges that it will interpret technical terms
based on their peculiar meaning, it is important that BlViC 2.08.030 does not use
the technical terms of “surnmons,” “designated agent" or “service of process.”
Use of the word “complaint” alone does not convey a particular technical

meaning such that the city administrator may accept service of summons on

NO. 76771-2-|/8

behalf of the mayor as his designated agent. ln fact, the code only states that
the city administrator may “handl[e]," “[i]nvestigate," and “rnak[e]
recommendations” regarding “cornpiaints." BlV|C 2.08.030. None of these terms
are the plain language equivalent of being the mayor’s designated agent for
acceptance of service of process on his behaif. Therefore, based on its piain
language, BlV|C 2.08.030 does not designate the city administrator as the
mayor's agent for purposes of accepting a summons We hold that service on
the city administrator did not effect personal jurisdiction on the City and that the
trial court erred in holding that it did.

Weich argues that the term “city manager" in RCW 4.28.080(2) is
ambiguous because it is not defined in the statute and, therefore1 it could mean
“city administrator.” i-le bases this argument on the fact that the term is not
capitaiized, but he faiis to cite any legal authority supporting this interpretation.
Cowiche Canvon Conservancv v. §osiev, 118 Wn.2d 801, 809, 828 P.2d 549
(1992) (argurnents that are not supported by any citation to authority need not be
considered) (citing RAP 10.3(a)(5); lVchee v. Am. l-lome Prods. Corp_u 113
Wn.2d 701, 705, 782 P.2d 1045 (1989)). But, the piain language of
RCW 4.28.080(2) says service must be on the “rnayor," the “city manager,” or the
“city clerk.” This ianguage is not ambiguous, and We hold that it cannot be
interpreted to include the “city administrator.”

Welch argues that an aitemative form ot service is acceptable under
RCW 4.28.080(2) because the City is run by part-time officials l-ie relies on

Skinner v. Civii Service Commission of Citv of i\lledina, 168 Wn.2d 845, 853, 232

NO. 76771-2-i/9

P.3d 558 (2010). But Skinner is distinguishable ln that case, the issue was

 

whether or not Skinner property served the City of i\lledina Civii Service

Commission with the notice of an appeal under RCW 41.12.090, which states:
Such appeal shall be taken by serving the commission, within thirty
days after the entry of such judgment or order, a written notice ot
appeai, stating the grounds thereof, and demanding that a certified
transcript of the record and of ali papers on file in the office of the

commission affecting cr relating to such judgment or order, be filed
by the commission with such court.

(Emphasis added.) The Supreme Couri determined that Skinner substantially
complied with this statute by leaving copies of the notice cf appeal with the city
clerk. _l_g_._ at 856. lt held that “Where the Cornmission’s office address (at which a
notice of appeal must be served) contains no office or Cornmission staff and the
municipality is relatively small, . . . Skinner’s service on the city clerk, located at
that address, was reasonably calculated to give notice to the Comrnission.” jnchL
i-lere, the statute at issue is RCW 4.28.080(2), not RCW 41 .12.090. ln
i\.lleadowdale, this court explicitly held that substantial compliance is not enough
to satisfy RCW 4,28.080(2). Nleadowdale, 27 Wn. App. at 264 (“When a statute
designates a particular person or officer upon whom service of process is to be
made in an action against a municipality, no other person or officer may be
substituted.”) (citing 56 Am. Jur. 2d l\/lunicipal Corporations, Counties. and Other
Political Subdivisions § 854 (1971); 64 C.J.S. l\/lunicigal Corporations §
2205(c)(3) (1950)). “[Tjhe doctrine of substantial compliance is inappiicable

when the issue is whether service of process has been valid so as to subject a

municipality to the court’s jurisdiction.” ld.

NO. 76771-2-!/10

Furtherrnore, the Supreme Court distinguished RCW 4.28.080(2) from
another service statute, RCW 10.95.040, in State v. Ctark, 129 Wn.2d 805, 920
P.2d 187 (1996). That case involved service of a death penalty notice Ed_. at
810. The defendant argued that personai service under RCW 4.28.080 Was
required, but the Suprerne Court disagreed !d_. at 813_ it distinguished cases
involving that statute, including l\/leadowdale, and held that because
RCW 10.95.040 did not require “personal” service and because RCW 4.28.080
applied to service of original process, those cases were not persuasive td_. at
813-14.

The same reasoning can be used to distinguish Skinner from this case

 

RCW 41.12.090, the statute at issue in Skinner, does not require personai

 

servicel and it does not appty to service of originai process. therefore the

Supreme Court's holding in Si<inner is not binding on this ccurt’s apptication of

 

Rcw 4.28.080(2).

in its amicus curiae brief, the Washington State Association ot Nlunicipat
Attorneys argues that RCW 4.28.080(2) should be interpreted to allow only the
mayor and not the city council to designate an agent who can accept service ot
summons on the mayor's behalf. Under this argument, the council, in passing
BiVlC 2.08.030, did not have the authority tc designate the city administrator as
the mayor’s agent Because we hoid that the piain language of BlVlC 2.08.030
does not designate the city administrator as the mayor’s agent for accepting

service ot a summons, we need not reach this argument

10

NO. 7677‘! -2-i/11

in conciusion, Welch did not obtain personal jurisdiction over the City
within the statute of limitations by serving the city administrator rather than the
mayor or the city clerk, as required by RCW 4.282.080(2). `l'he trial court erred in
concluding that BlV|C 2.08.030 designated the city administrator as the mayor's
agent for acceptance ot a summons, and remand is necessary.

The Discoverjy Rule

Weich argues that he served the mayor and the city clerk within the
statute of limitations because his negiigence claim against the City did not accrue
until he discovered defects in the road design through an expert's report We
disagree

“‘The general rule in ordinary personal injury actions is that a cause of
action accrues at the time the actor omission occurs.’" Funkhouser v. V\l‘i|son, 89
Wn. App. 644, 666, 950 P.2d 501 (1998) (quoting ln re §states ot Hibbard, 118
Wn.2d 737, 744, 828 P.2d 690 (1992)), att'd j_n_ part and remanded sub horn.
C.J.C. v. Corp. of Catholic Bishop of Yakima. 138 Wn.2d 699, 985 P.2d 262
(1999). Butl as an exception to this rule, the discovery rule can apply when a
delay occurs between the time of an injury and the plaintift’s discovery of that
injury Giraud v. Quincv Farm & Chem.. 102 Wn. App. 443, 449, 6 P.3d 104
(2000) (citing Crisman v. Crisrnan, 85 Wn. App. 15, 20, 931 P.2d 163 (1997)).
The discovery rule tolis the date of accrual of the action “until the ptaintift knows
or, through the exercise of due diligence should have known ail the facts
necessary to establish a legal claim.” § (citing Crlsman, 85 Wn. App. at 20;

A|len v. State, 138 Wn.2d 753, 758, 826 P.2d 200 (1992)). But, the discovery

11

NO. 76771 -2-|/‘i 2

rule is not based on a plaintiffs knowledge of the existence of a specific legal
cause of action because that would effectively toll the statute of limitations until
the injured person saw his attorney. Gevaart v. Nietco Const., lnc., 111 Wn.2d
499, 502, 760 P.2d 348 (1988) (adopting the Court of Appeals’ unpublished
opinion, Gevaart v. Metco Constr.. lnc., noted at 48 Wn. App. 1034 (1987), as its
own).

l-lere, Welch received an expert report on Aprii 25, 2014, indicating that
the intersection where the accident occurred provided a line of sight that was
below safety standards We|ch argues that his cause of action against the City
did not accrue until he received this expert analysis Under this theory, the
statute of limitations in a negligence action could always be tolied until the
plaintiff meets with an expert that advises a cause of action is available On
appeal, Weich cites no authority supporting such an extension of the statute of
limitations in personal injury cases, and we decline to extend one here §e§
Cowiche Canvon Conservancv, 118 Wn.2d at 809 (arguments that are not
supported by any citation of authority need not be considered) (citing
RAP 10.3(a)(5))_

ln response to the City’s motion for summaryiudgment beiow, We|ch cited
1000 Virginia Ltd. Partnership v. Vertecs Corp.. 158 Wn.2d 5661 146 P.3d 423
(2006) for support ot his discovery rule argument But that case involved latent
defects in a construction project that were not discovered within the statute of
limitations for a breach of contract action. There, the issue was whether

“appiication of the discovery rule in construction contract cases involving latent

‘i2

No. 76771-2-|/13

defects that the plaintiff would be unable to detect at the time of breach is a
logical and desirable expansion of the discovery rule," i_d; at 578~79. That case
is inapplicable in this context and is not a basis for extending the statute of

limitations here Welch's discovery rule argument fails.

Eguitable Estog,gel
We|ch argues that the City is estopped from arguing that it was not

properly served because the city administrator accepted service of process in
this case and in past cases. We disagree

“The elements of estoppel are: (1) an act or admission by the first party
that is inconsistent with a later assertion; (2) an act by another party in reliance
upon the first party’s act or assertion; and (3) an injury that would result to the
relying party if the first party were not estopped from repudiating the original act.”
Davidheiser v_ Pierce Countv, 92 Wn. App. 146, 153, 960 P.2d 998 (1998) (citing
Kramarevckv v. Dep’t of Soc. & l-lealth Servs.. 122 Wn.2d 738, 743, 863 P.2d
535 (1993); Robinson v. City of Seattle. 119 Wn.2d 341 82, 830 P.2d 318 (1992)).
“The party asserting estoppel must show not only lack of knowledge of the facts,
but also the absence of any convenient and available means of acquiring such
knowledge.” Ld_._ (citing Chem. Banl< v. Wash. Pub. Power SuDD|v Svs., 102
Wn.2d 874, 905, 691 P.2d 524 (1984)).

Davidheiser is instructive here ln that case the Court of Appeals
considered whether Pierce County could be estopped from asserting
insufficiency of service of process where an employee incorrectly told the plaintiff
that the Risk ivlanagement Department could accept a summons and complaint

ld_. at 152-53. Under RCW 4.28.080(1), service of summons could be made only

13

No. 76771-2~|/14

on the county auditor, the deputy auditor, or an agent designated by legislative
authority1 not the county’s Risk l\/lanagement Department. _l_d_4 at 150. Reiying on
l\/leadowdale, the court explained that service on anyone other than the
individuals identified in the statute was insufficient because the statute was clear
who should be served g at 153-54. The court held that

even if Davidheiser could have reasonably relied on the

representation to serve the summons and complaint on the Risk

Nlanagernent Department, such reliance was no longer reasonable

after the County served its answer asserting that service was

improper Because the defense was raised within the statute of

iimitations, Davidheiser could have properly served the County

pursuant to RCW 4.28.080(1) within the statutory period.

ld_. at 154~55.

Here. as in Davidheiser, RCW 4.28.080(2) clearly states that the mayor or
the city clerk must be served and the City asserted in its answer that service was
insufficient Because Welch had notice of the City’s defense before the statute of
limitations explred, he could have properly served the City within the statutory
period. Estoppe| is note basis for denying summary judgment

Without any citation to legal authority1 Welch argues that the City is
estopped from raising the defense of insufficient service because it engaged in
discovery on other issues before moving for summary judgment on the issue of
service |~le is mistaken ln French v_ Gabriel, 116 Wn.2d 584, 594, 806 P.2d
1234 (1991), the Supreme Court held that once the defendant properly preserved
his defense of insufficiency of process by pleading it in his answer, he did not

waive it by proceeding with discovery on unrelated issues ld_. (citing Crouch v.

Friedman, 51 Wn. App. 731, 734-35, 754 P.2d 1299 (1988)); seeing

14

No. 76771»2~1/1 5

Davidheiser, 92 Wn. App. at 155~56. Theretore, the City did not waive the
insufficient service defense by engaging in discovery on other issues.

Finally, Welch argues that the City is estopped from arguing that there
was insufficient service of process because the city administrator was an
apparent agent for the mayor and the mayor is bound by the city administrators
acceptance of service on his beha|f. This argument is at odds with the plain
language of RCW 4.28.080(2) and lVieadowdale, as described above Welch’s
attempt to reframe the issue under agency law does not require a different result
and his waiver and estoppel arguments fail,

Tollino of the Statute of Limitations

Welch argues that the City was properly served within the statute of
limitations because the statute of limitations was tolled under RCW 4.16.170
when he e-mailed the amended complaint to Boardman’s attorney prior to filing it
with the court V\le disagree

This court reviews the sufficiency of service de novo. Streeter-Dybdahl v.
Nguyet Huynh, 157 Wn. App. 408, 412, 236 P.3d 986 (2010). `fhe plaintiff bears
the burden of making a prima facie case of sufficient service of process M._

The statute of limitations for an action may be tolled under

RCW 4.18.170.2 Based on that statute, service on any one of multiple

 

2 RCW 4.16.170 states:

For the purpose of tolling any statute of limitations an action
shall be deemed commenced when the complaint is filed or
summons is served whichever occurs first |f service has not been
had on the defendant prior to the filing of the complaintl the plaintiff
shall cause one or more of the defendants to be served personally,
or commence service by publication within ninety days from the

15

No. 76771-2-|/16

defendants tolls the statute of limitations against all the defendants Sidis vt
Brodie/Dohrmann, lnc., 117 Wn.2d 325, 329, 815 P.2d 781 (1991).

CR ‘lB(a) states that “[i]f a motion to amend is granted, the moving party
shall thereafter file the amended pleading and, pursuant to rule 5, serve a copy
thereof on ali other parties.” The Court of Appeals has interpreted CR l5 to
require that the moving party serve the amended complaint on the opposing
party after the court grants leave to amend V\lill v. Frontier Contractors. lnc., 121
Wn. App. 119, 127, 89 P.3d 242 (2004) (citing Carter v. Church, 791 F. Supp.
297, 298 (l\/l.D. Ga. 1992); Nlurray v. Archambo, 132 F.3d 609, 612 (10th Cir.
1998)).

l-lere, the only evidence of service of the amended complaint on
Boardman in this record comes from a declaration by V\lelch’s attorney, which
states:

l then delivered the draft amended complaint to counsel for Nlr.

Boardman, who l provided with a proposed agreed order. To my

recollection, counsel for lvir. Boardman mailed me the order with his

signature Following receipt of that document i secured an order

from the court allowing the amended complaint to be filed l then

filed the amended complaint with the court in August 2015.

Clerk’s Papers at 303. This declaration states that Boardman’s attorney was

“provided” the draft amended complaint before the court granted leave to amend.

 

date of filing the complaint lf the action is commenced by service
on one or more of the defendants or by publication, the plaintiff
shall file the summons and complaint within ninety days from the
date of service lf following service, the complaint is not so flled, or
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

16

No. 76771-2~|/17

But, there is no evidence in the record that Welch served the amended complaint
on Boardman after it was filed as required by CR 15(a). Even speculating that
filing the amended complaint could toll the statute of limitations, Welch has the
burden to show that the amended complaint was properly served on Boardman
in order to effectuate tolling. He has not done so. Therefore, the tolling statute
cannot be a basis for extending the statute of limitations until the City was
properly served

ln conclusion, we reverse the trial court’s order on summary judgment and

direct the trial court to enter summary judgment in favor of the City.

dilute

 

WE CONCUR:

an~¢ l r'l£;?“ M//

17

